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956 F.2d 1168
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Stephen Blair BANISTER, Defendant-Appellant.
No. 90-50688.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 2, 1992.Decided March 13, 1992.
Before CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.
1
MEMORANDUM*
2
We review de novo a district court's denial of a motion to suppress. United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988).
3
Payton v. New York, 445 U.S. 573 (1980), established that warrantless arrests inside defendants' homes generally violate the fourth amendment. Banister contends that his arrest was unlawful under Payton. Even if we assume, without deciding, that Banister's arrest violated the Payton rule, that assumption does not aid Banister on this appeal. In New York v. Harris, the Supreme Court held that prosecutors are not barred by the exclusionary rule from admitting into evidence statements made outside the defendant's home by a defendant who was illegally arrested without a warrant inside his home. 110 S.Ct. 1640, 1644-45 (1990). The Court reached this conclusion by interpreting Payton as being "designed to protect the physical integrity of the home; it was not intended to grant criminal suspects ... protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing the crime." Harris, 110 S.Ct. at 1643. Thus, an illegal warrantless arrest in a defendant's home does not render unlawful continued custody of the defendant (assuming probable cause exists1 ), and any evidence produced by the continued custody need not be excluded. Only evidence produced or tainted by the illegal arrest must be excluded. See id. at 1643-44. Compare Minnesota v. Olson, 110 S.Ct. 1684, 1687 & n. 2 (1990) (statements tainted by the illegal arrest must be excluded).2 See also United States v. Duchi, 944 F.2d 391, 395 (8th Cir.1991) (Harris governs evidence "whether testimonial or tangible").
4
The essential question here is whether the motorcycle key3 was " 'come at by exploitation' of ... the defendant's Fourth Amendment rights." Harris, 110 S.Ct. at 1644 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). The motorcycle key at issue here could and would have been lawfully discovered had the officers arrested Banister on the street. In fact, the discovery would have occurred in the identical manner: an inventory search of Banister at the police station.4 The assumed illegality of the arrest was incidental to the discovery of the evidence. Thus, the deterrent effect of excluding the key would not serve the purpose underlying Payton: protecting the integrity of the home. The motorcycle key was not the product of the assumed illegal warrantless arrest.
5
We conclude that the district court did not err by denying Banister's motion to suppress the motorcycle key.5
II. The Prosecutor's Closing Argument
6
The prosecutor was entitled to comment on Banister's failure to present witnesses so long as the comment was not phrased in a manner that called attention to Banister's failure to testify. United States v. Passaro, 624 F.2d 938, 944 (9th Cir.1980), cert. denied, 449 U.S. 1113 (1981). The prosecutor's closing argument made no reference either to Banister or to his failure to testify. The prosecutor merely commented on the defense's failure to call witnesses to rebut the identification of Banister. The prosecutor's comment on the failure of the defense, as opposed to the defendant, to counter or explain testimony presented or evidence introduced was not an infringement of Banister's fifth amendment privilege. United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir.1988); accord United States v. Fleishman, 684 F.2d 1329, 1343-44 (9th Cir.), cert. denied, 459 U.S. 1044 (1982). The jury could not reasonably have taken this comment to be a reference to Banister's failure to testify, Castillo, 886 F.2d at 1083 (test is whether the jury would naturally and necessarily take the comment to be a reference to the defendant's failure to testify), particularly after the court gave a clear curative instruction. United States v. Soulard, 730 F.2d 1292, 1307 (9th Cir.1984). We conclude that the prosecutor's closing argument did not violate Banister's fifth amendment privilege.
7
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Banister's brief did not dispute the existence of probable cause for his arrest. Although counsel at oral argument attempted to contest probable cause, we conclude that the issue was waived. Nilsser, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1547-48 (9th Cir.1988); Fed.R.App.P. 28(a)(4)
2
The Olson Court expressly declined to apply Harris because the state conceded that the statements at issue were tainted by the illegal arrest. 110 S.Ct. at 1687 n. 2
3
The suppression motion also sought to suppress Banister's statement giving a false name to the police. That statement, however, was ruled inadmissible at trial. The district court's refusal to suppress the statement therefore is not before us
4
The parties stipulated that the key was obtained during an inventory search of Banister's person
5
In light of our conclusion, we need not decide whether Banister has standing to challenge the warrantless entry into Apartment 206 or whether exigent circumstances existed which justified the warrantless entry
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138 S.W.3d 766 (2004)
Steve CUPP, Plaintiff/Respondent/Cross-Appellant,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Defendant/Appellant, and
The Mart Corporation, Defendant/Respondent/Cross-Respondent.
Nos. ED 82635, ED 82646.
Missouri Court of Appeals, Eastern District, Division Two.
July 6, 2004.
*768 Thomas E. Schwartz, Holloran & Stewart, P.C., St. Louis, MO, for plaintiff/respondent/cross-appellant.
Michael B. Hunter, Lisa A. Larkin, Williams Venker & Sanders LLC, St. Louis, MO, for appellant.
*769 James E. Godfrey, Jr., Godfrey & Associates, St. Louis, MO, for defendant/respondent/cross-respondent.
KATHIANNE KNAUP CRANE, Judge.
Plaintiff, a railroad employee, was injured when he attempted to stop a locomotive wheel set that suddenly exited a newly installed wheel wash and rolled towards a fellow employee. He brought a FELA action against the railroad and a negligence action against the seller of the wheel wash, whose employees had been working on the wheel wash at the time of plaintiff's accident. The railroad filed a contribution action against the seller. The trial court granted the seller's motion for directed verdict with respect to both the negligence and the contribution actions, and submitted the FELA action to the jury, which returned a $200,000 verdict against the railroad. After a reduction for an offset, the trial court entered judgment against the railroad in the amount of $197,500.
Plaintiff and the railroad appeal. They each claim that the trial court erred in entering a directed verdict in the seller's favor. In addition, the railroad asserts that the trial court erred 1) in denying its motion for judgment notwithstanding the verdict on the basis of instructional error and 2) in denying its motion for new trial for the reason that prejudicial evidence was admitted. We reverse that part of the judgment granting a directed verdict in the seller's favor and remand for a new trial. We affirm the judgment against the railroad.
FACTUAL AND PROCEDURAL BACKGROUND
In accord with our standard of review when a motion for directed verdict has been granted in a defendant's favor, we recite the facts in the light most favorable to plaintiff and the railroad. In October, 2000, plaintiff, Steve Cupp, was an employee of National Railroad Passenger Corp. ("Amtrak") in the wheel shop at its Beech Grove, Indiana, facility. He had worked as a railroad machinist for Amtrak since 1986. Defendant, The Mart Corporation ("Mart") was a designer and manufacturer of custom automated parts washing systems. Amtrak had purchased a wheel wash from Mart, which had been delivered to Amtrak in approximately December, 1999.
A wheel wash washes locomotive wheels one set at a time. An exit door opens automatically when it finishes washing the wheel set, and the wheel set rolls out of the machine onto a cradle on a slight downhill grade and then onto a set of rails embedded in the shop floor. The wheel sets were supposed to stop at the end of the rails after exiting the wheel wash. Amtrak designed, built, and installed a mechanism known as a retarder, to control the speed at which the wheels exited the wheel wash.
On October 25, 2000, two Mart employees, Jack Conley, a field service technician, and Michael Erlson, project engineer, went to the Amtrak facility at Beech Grove, Indiana, arriving at noon, to service and adjust the wheel wash. At that time, the new wheel wash was still being set up and was not yet operational. The retarders had not started working, because they could not be properly adjusted until the machine was ready for wheel sets to be run through. Before Amtrak could run wheel sets through the wheel wash, the Mart employees would have to get "everything to work in sequence," and Amtrak personnel expected Mart to test run wheel sets through the wheel wash before Amtrak started using it.
On the evening of October 25, the Mart employees ran wheel sets through the *770 wash. No Amtrak employees were working on the machine itself. The two Mart employees made adjustments to increase the speed at which the wheels were exiting the wheel wash because they were not coming off the cradle with sufficient speed to reach the rails embedded in the concrete floor.
John McCutcheon, an Amtrak employee, observed several sets of wheels come out of the wheel wash that evening and told the Mart employees that it was dangerous to eject wheels while people were working in the area. The Mart employees told Mr. McCutcheon that the retarders were not working. Mr. McCutcheon stepped on them himself and verified they were not working. On his report that day, Russell Cross, an Amtrak supervisor, noted that the wheels were exiting the wheel wash quickly and recommended adjusting the retarder and installing a signal device.
The next afternoon, October 26, 2000, the Mart employees were still working on the wheel wash. No Amtrak employees were involved in running the wheel wash. Amtrak supervisor Willie Spears had assigned Amtrak employee Dwayne Willis to bring the wheels to the wheel wash with a forklift so the Mart employees could run them through. Mr. Willis put a wheel set in the wash and then parked the forklift at the end of the track to wait for the wheels. The wheel set quickly exited the wheel wash and struck the forklift, causing the forklift to move eight inches to a foot when it was struck. The Mart employees were in the area when the wheels hit the forklift.
Plaintiff and other Amtrak employees on the 3:00 p.m. shift had reported to a crew meeting at a picnic table, directly east of the wheel wash, and witnessed the impact with the forklift. One employee called back to the group that was still at the table, "Somebody going to get hurt." Mr. Willis told his Amtrak supervisors, "Hey, you all need to do something about this machine. Because if these wheels come out like this, somebody's going to get hurt." He added, "You ought to shut it down."
After this incident, Mr. Willis's supervisor had him load wheel sets into the wheel wash two or three additional times and, on one or two more occasions, Mr. Willis parked the forklift at the end of the tracks, where it was again struck by the wheel sets. Meanwhile, plaintiff was in a second meeting in a different building. Plaintiff then returned to the wheel shop to work on the pull-off press. Mr. Willis loaded a wheel set in the wheel wash and then took the forklift outside to dump some scrap wheels. The next set of wheels came out and went down the rails, pushing away the wood chocks placed by Mart employees on the rails to stop the wheels from rolling off the end of the rail. Plaintiff heard a man yell, "Run away." He looked up and saw that his Amtrak supervisor, Mr. Spears, was in the path of the rolling wheel set that had just come out of the wheel wash. Plaintiff yelled to Mr. Spears, but Mr. Spears froze and did not move out of the way. Plaintiff grabbed the wheel set to stop it from striking Mr. Spears, injuring himself.
Plaintiff filed a petition in the Circuit Court of the City of St. Louis seeking damages from Amtrak pursuant to 45 U.S.C. section 51, the Federal Employers Liability Act (FELA), and damages from Mart for the negligence of its employees. Amtrak filed a cross-claim against Mart for contribution. The case was tried before a jury. Mart filed a motion for directed verdict at the close of plaintiff's case, on the grounds that Amtrak retained control of the premises and Mart owed no duty to plaintiff. The trial court granted the motion and entered a directed verdict in *771 Mart's favor. The jury returned a verdict in plaintiff's favor against Amtrak in the amount of $200,000. The court entered judgment in the amount of $197,500, after a reduction for an offset.
DISCUSSION
I. Directed Verdict
Plaintiff and Amtrak each assert that the trial court erred in sustaining Mart's motion for directed verdict on plaintiff's petition and Amtrak's cross-claim. Plaintiff sought damages from Mart for its employees' negligence in allowing the wheel set to suddenly exit the wheel washer and failing to warn those working in the area. Amtrak sought contribution from Mart to the extent of any judgment against it for Mart's employees' negligence in the operation of the wheel wash and failure to warn those working in the area. Neither plaintiff nor Amtrak alleged that Mart was liable based on an employment relationship or control of the premises.
Mart moved for a directed verdict on the grounds that plaintiff was an Amtrak employee; Mart's employees were business invitees; Amtrak designed, furnished and maintained the wheel washing machine; Amtrak had control of the premises, of Mart's employees, and its own employees at the time of the accident; and no evidence demonstrated that Amtrak relinquished control of the premises or its employees to Mart. In its memorandum in support of its motion, Mart argued that these facts failed to show a relationship between plaintiff and Mart that was actionable. Plaintiff and Amtrak filed memoranda opposing the motion. The trial court granted the motion on the stated grounds that Amtrak had not relinquished control of the premises, that Amtrak could not and did not escape its duty of providing a safe workplace, and Mart owed no duty to plaintiff.
We review the entry of a directed verdict in a defendant's favor to determine if the plaintiff made a submissible case. Rustici v. Weidemeyer, 673 S.W.2d 762, 765 (Mo. banc 1984). We view the evidence and reasonable inferences in the light most favorable to the plaintiff, and we disregard the contrary evidence and inferences. Cabinet Distributors. Inc. v. Redmond, 965 S.W.2d 309, 312 (Mo.App.1998). "We will reverse a verdict directed against a plaintiff unless the facts and inferences weigh so strongly against the plaintiff that there is no room for reasonable minds to differ." Id.
In "`any action for negligence, the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and defendant's failure proximately caused injury to the plaintiff.'" L.A.C. v. Ward Parkway Shopping Center Co., 75 S.W.3d 247, 257 (Mo. banc 2002) (quoting Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 155 (Mo. banc 2000)). The existence of a duty is a question of law. Id.
A legal duty owed by one to another may arise from at least three sources: (1) it may be proscribed by the legislative branch; (2) it may arise because the law imposes a duty based on the relationship between the parties or because under a particular set of circumstances an actor must exercise due care to avoid foreseeable injury; or (3) it may arise because a party has assumed a duty by contract (agreement) whether written or oral. Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976).
Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 263 (Mo.App.2002).
Mart bases its claim that the evidence failed to establish a duty running from it to plaintiff on the lack of an actionable *772 relationship between it and plaintiff. In its argument Mart identifies certain special relationships, that of employer-employee and landowner-invitee, that give rise to a duty of care with regard to risks that arise within the scope of that relationship. It then explains why, as a matter of law, it does not have a special relationship with plaintiff: because its employees are not employees of the landowner merely because they work in the landowner's building, citing Lott v. Anheuser-Busch, Inc., 481 S.W.2d 517, 521 (Mo.App.1972); because a landowner who has not relinquished control of the premises to an independent contractor during a period of construction owes a duty of care to an invitee, citing Noble v. Bartin, 908 S.W.2d 390, 391 (Mo.App.1995); because an architectural firm not engaged to establish specifications for a trench or to supervise construction has no duty to a construction worker killed by a trench collapse, citing McAninch v. Robinson, 942 S.W.2d 452 (Mo.App.1997); and because an employer cannot escape its duty to provide a safe place to work by delegating the task to someone else, citing Gunnett v. Girardier Bldg. and Realty Co., 70 S.W.3d 632, 638 (Mo.App.2002).
Mart concludes from the fact that it has no special relationship with plaintiff that it owed no duty to plaintiff. This conclusion is erroneous. In its argument, Mart established only that it owed no duty to plaintiff arising out of a special relationship. It did not establish that it owed no duty under traditional principles of negligence when no special relationship exists." `A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury.'" L.A.C., 75 S.W.3d at 257; Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988). The duty is measured by whether a reasonably prudent person would have anticipated danger and provided against it. Id. The fact that plaintiff was an Amtrak employee working on premises controlled by Amtrak does not preclude plaintiff from bringing an action against a negligent third party, who, under the circumstances, was required to exercise due care to avoid foreseeable injury. See Gunnett, 70 S.W.3d at 636 (citing Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384, 390 (Mo. banc 1991)). In this case, Mart's duty to Amtrak employees on Amtrak's premises arose out of the circumstances that it had control of the work its employees were performing on the wheel wash and control of the operation of the wheel wash and therefore was required to exercise due care in performing the work and operating the wheel wash to avoid foreseeable injury to the Amtrak employees in the area. In these circumstances Mart owed a duty of care to Amtrak's employees while its work was in progress, even though the premises remained in Amtrak's control during that time. Miller v. Brunson Const. Co., 250 S.W.2d 958, 960 (Mo.1952); Mino v. Porter Roofing Co., Inc., 785 S.W.2d 558, 561 (Mo.App.1990). "If the instrumentality causing the harm is under the control of the defendant contractor and the plaintiff is injured while in a work area common to employees, the defendant owes a duty of care to avoid causing such injury." Mino, 785 S.W.2d at 561 (citing Howard v. S.C. Sacks, Inc., 76 S.W.2d 460, 465 (Mo.App.1934)). The trial court erred in granting a directed verdict on the grounds that Mart had no duty to plaintiff because Amtrak had not relinquished its control of the premises and could not escape its duty to provide a safe workplace.
Although we may affirm the trial court if it is correct on any ground, not just on the grounds given, we do not go beyond the grounds asserted in the motion *773 and briefed on appeal to look for other reasons to affirm. Thomas v. DeGrace, 776 S.W.2d 500, 501 (Mo.App.1989). Mart did not assert any basis in its motion to support the direction of the verdict apart from the lack of a duty based on these special relationships. Accordingly, point one is granted.
II. JNOV Instructional Error
For its second point Amtrak asserts that the trial court erred in submitting the FELA claim against Amtrak to the jury, without instructing the jury that it must find notice as an element of plaintiff's claim. Plaintiff's FELA claim against Amtrak was based on the dangerous operation of the wheel wash and the failure to install wheel stops. Amtrak contends that there was insufficient evidence that it had notice of the condition that plaintiff claimed caused his injury to justify taking the question of notice away from the jury.
Amtrak submitted its proposed instruction number 6, which was patterned on MAI 24.01 [1992 Revision] as modified by Qualls v. St. Louis Southwestern Ry. Co., 799 S.W.2d 84 (Mo. banc 1990)[1]:
INSTRUCTION NO. 6
Your verdict must be for plaintiff Steven Cupp and against defendant Amtrak if you believe:
First, conditions for work were not reasonably safe and defendant Amtrak knew or by using ordinary care could have known of such conditions and that they were not reasonably safe, and
Second, with respect to such conditions for work, defendant Amtrak either failed to provide reasonably safe conditions for work, and
Third, defendant Amtrak thereby was negligent, and
Fourth, such negligence [sic] in whole or in part in injury to plaintiff Steven Cupp.
(LF 82)
The court rejected this instruction and gave plaintiff's Instruction No. 6 over Amtrak's objection. Plaintiff's Instruction No. 6 was based on MAI 24.01 [1992 Revision]:
INSTRUCTION NO. 6
Your verdict must be for plaintiff Steven Cupp and against defendant Amtrak if you believe:
First, defendant Amtrak failed to provide reasonably safe conditions for work, and
Second, defendant Amtrak was thereby negligent, and
Third, such negligence resulted in whole or in part in injury to plaintiff.
Amtrak asserts that the trial court erred when it refused to modify the FELA verdict director patterned on MAI 24.01 [1992 Revision] by adding a paragraph that required the jury to find that Amtrak had knowledge or constructive knowledge of the unsafe condition. We disagree.
The Notes on Use under MAI 24.01 provide:
In the event plaintiff submits some act of negligence, constructive knowledge of which is not chargeable to the railroad, there shall be submitted in addition a paragraph providing "Second, conditions for work were not reasonably safe and defendant knew or by using ordinary *774 care could have known of such condition, and that they were not reasonably safe, and." This paragraph should be inserted between existing paragraphs First and Second and the remaining paragraphs should be renumbered accordingly.
(MAI at p. 372). "Implicit in the Notes on Use explanation as to when the additional paragraph should be used is the idea that the judge must decide whether the plaintiff has presented sufficient evidence to justify not submitting the issue to the jury." Qualls, 799 S.W.2d at 87. "If the judge decides the plaintiff has shown defendant had actual knowledge of the negligently produced condition, the additional paragraph is not required." Id. (citing Foltz v. Burlington Northern R. Co., 689 S.W.2d 710, 715 (Mo.App.1985)).
Qualls involved the employer's knowledge of the extent of the accumulation of ice and snow on a bridge over which the employee walked while attempting to rejoin his work crew. 799 S.W.2d at 86-87. The conflicting testimony on the existence of those conditions was sufficient to require submission of the employer's knowledge to the jury. Id. at 87.
In contrast, in Foltz, 689 S.W.2d at 715, a switchman injured his back while throwing a switch. The injured switchman testified that, before the day of the injury, he had reported difficulties in operating the switch to his foreman, and another employee testified that he also reported difficulty in operating the switch to his foreman. The court held this evidence was sufficient to show the employer's actual, or at least constructive, knowledge of the condition, and therefore MAI 24.01 did not need to be modified. Id. at 715-16.
In Holley v. Missouri Pacific R. Co., 867 S.W.2d 610 (Mo.App.1993) (overruled on other grounds by Kauzlarich v. Santa Fe Ry. Co., 910 S.W.2d 254, 260 (Mo. banc 1995)), we reviewed Qualls and Foltz to ascertain the circumstances in which MAI 24.01 would and would not require modification. Id. at 616-17. In Holley, we found that, when the evidence showed that the conditions leading to the injury were known to the employer and were not of recent origin, this was evidence of actual or constructive knowledge "of the conditions which led to plaintiff's injury," and the refusal to modify MAI 24.01 was not error.
In this case there was sufficient evidence that Amtrak, through its employees, had actual or constructive knowledge of the conditions that led to plaintiff's injury. Amtrak argues that there was no evidence that it knew that Mart employees were going to run another set of wheels through the washer after the forklift left the area. This argument has no merit.
It is required only that Amtrak have knowledge of the existence of an unsafe condition leading to the injury. The unsafe condition was alleged to be the speed at which the wheel sets exited the wheel wash when the retarders were not operational and there were no effective wheel stops in an area where Amtrak employees were working. On the night before the accident, when the wheel sets were first being sent through the wheel wash, an Amtrak supervisor reported on the speed at which the wheel sets were exiting the wheel wash and the failure of the retarders. After the collision with the forklift earlier on the day of the accident, several Amtrak employees warned their supervisors and each other of the danger to employees working in the area. In addition, there was evidence that Amtrak personnel expected that the Mart employees would be repeatedly running wheel sets through the wheel wash as they made adjustments. Further, there was evidence that Amtrak personnel were aware that the Mart employees *775 were repeatedly running wheel sets through the wheel wash and that there were continued problems with speed and the failure of the retarders. Finally, there was evidence that the Amtrak forklift driver, who was under the direction of his Amtrak supervisor, loaded the wheel set that injured plaintiff in the wheel wash, and then left the area to do other work. Plaintiff adduced sufficient evidence of Amtrak's knowledge of the unsafe condition to justify not submitting Amtrak's knowledge of the unsafe condition to the jury. The trial court did not err in refusing to modify MAI 24.01. Point two is denied.
III. Motion for New Trial Admission of Evidence
For its third point Amtrak asserts that the trial court erred in admitting documents containing Amtrak's post-accident investigation because these contained inadmissible evidence of subsequent remedial measures and self-critical analysis. In its argument, Amtrak identifies the October 27, 2000, portion of Mr. Cross's wheel shop notes and the Amtrak Investigation Committee Report as the documents it claims should not have been admitted.
Mr. Cross kept daily running typewritten notes of wheel shop progress. Exhibits 10(a) and 10(b) contained his notes from Monday, October 23, 2000, through Friday, October 27, 2000. Amtrak complains of the admission of the October 27, 2000 entry recounting a post-accident safety meeting with other Amtrak personnel in which the following corrections were suggested:
Install a handrail along the wheel runway with a section of chain that can be removed to allow access through the middle.
Installing a stop at the end of the rail under the demount crane to stop wheelsets from going off the end of the rail.
Adjusting the retarder to slow the wheels.
Installing a warning device, probably a horn, to warn people when a wheel set is about to be released from the washer.
It also reported:
Maintenance adjusted the retarders and the wheelsets roll about half way to the axle area. I think we want to loosen the adjustment enough so that the wheelsets roll almost to the end.
Tom Gray is going to get the second shift maintenance to remove the alarm from the old wheelwasher in bu[ ]ilding 18 so we can install it on the new washer.
The Investigation Committee Report contains a description of the accident, identified the cause as the excessive speed of the wheel set and the adjustment of the retarders, identified contributing factors as "too much incline on exit rail of wheel wash and retarders not slowing wheel sets enough," and contained committee recommendations. The committee recommendations were: Install warning alarm system on machine just prior to wheels exiting. Adjust retarders to proper setting. "Install rail stops at the end of rails with guards to prevent tripping hazard." The last page, under the section marked "Equipment," the report contained the entry: "Retarders on exit track not strong enough to slow wheel sets."
In FELA cases admissibility of evidence is a procedural matter that is governed by the law of the forum. Keith v. Burlington Northern R. Co., 889 S.W.2d 911, 920 (Mo.App.1994). We review a trial court's decision on the admission of evidence only for abuse of discretion. Brown v. Hamid, 856 S.W.2d 51, 56 (Mo. banc 1993).
Generally, evidence of subsequent remedial measures is inadmissible in negligence actions. Pollard v. Ashby, 793 S.W.2d 394, 401 (Mo.App.1990) (en banc) *776 (citing Hefele v. National Super Markets, Inc., 748 S.W.2d 800, 803 (Mo.App.1988)). The admission of subsequent remedial measures to show negligence is prohibited for two reasons: First, if precautions taken could be used as evidence of previous improper conditions, no one, after an accident, would make improvements; and, second, subsequent changes are irrelevant to establish what the previous condition was. Pollard, 793 S.W.2d at 402. See also Stinson v. E.I. DuPont De Nemours & Co., 904 S.W.2d 428, 432 (Mo.App.1995); Brennan v. St. Louis Zoological Park, 882 S.W.2d 271, 272 (Mo.App.1994). Because public policy favors remedial measures, evidence that, after an accident has occurred, a defendant took precautions to prevent a reoccurrence of the accident, or made changes or repairs in the property or place causing the accident, is not competent evidence to be used against the defendant to show antecedent negligence or an admission of negligence. Diversified Metals Corp. v. Aaron Ferer & Sons, Inc., 498 S.W.2d 783, 786 (Mo.1973); Stoeppelman v. Hays-Fendler Construction Co., 437 S.W.2d 143, 152 (Mo.App.1968).
Plaintiff responds that the evidence in these exhibits did not constitute prohibited evidence of subsequent remedial measures because the evidence did no more than reiterate the existence of conditions that Amtrak was aware of prior to the accident and measures Amtrak had planned to take prior to the accident. We agree.
The problems identified and the remedial measures suggested in the two documents had been known and planned prior to the injury. Before the accident, Amtrak knew that the retarders were not working and that efforts to stop the wheels by other means were not satisfactory. Mr. Cross's notes from October 26, 2000, before he had notice of the incident that caused plaintiff's injury, show that Amtrak was aware prior to the accident that the wheels were coming out too fast and made plans to adjust the retarders and install a warning device. He reported:
We need to have maintenance adjust the retarder to slow the wheels.
We need to install a signal device to inform shop people that a wheel is about to be ejected from the washer.
There was also evidence that at the time of the accident the area had been barricaded to keep out pedestrian traffic. The problems and remedial measures identified in the post-accident reports were no different than those identified and proposed prior to the accident.
The public policy rationale for excluding evidence of post-accident remedial measures does not apply if the measures in question were planned, provided for, or undertaken prior to that accident. The purpose of the exclusionary rule is to protect a defendant who has been first alerted to the possibility of danger after an accident and has been induced by the accident to make the repair to prevent further injury. A defendant who is aware of the problem and has proposed measures for remediation prior to the accident is not entitled to the same protection. See Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585, 600 (1982) (new traffic control devices ordered prior to the accident could not be considered a subsequent remedial measure); Raymond v. Raymond Corporation, 938 F.2d 1518, 1523 (1st Cir.1991) (product modifications on the drawing board, but not yet implemented at the time of the accident, did not constitute a subsequent remedial measure).
In this case there was evidence that Amtrak was aware of the conditions reported in the two exhibits prior to the accident and had tried or proposed the suggested measures prior to the accident. The fact that these conditions and measures were reported again in post-accident *777 documents or suggested again after the accident does not, in the context of this case, make them inadmissible subsequent remedial measures. See Thornton v. National Railroad Passenger Corporation, 802 So.2d 816, 820 (La.Ct.App.2001). In Thornton, the Louisiana Court of Appeals held that trial court did not abuse its discretion in admitting defendant railroad's post-accident investigation committee report and safety alert because the recommended measures were those the defendant had implemented before the accident in other facilities. In this case, there was no risk that the challenged evidence unfairly injected inadmissible matters into evidence. The trial court did not abuse its discretion in admitting these documents. Point three is denied.
Conclusion
That part of the judgment granting a directed verdict in Mart's favor is reversed and the claims against Mart are remanded for a new trial. The judgment against Amtrak is affirmed.
GLENN A. NORTON, P.J., and MARY K. HOFF, J., concur.
NOTES
[1] The form of instructions and the manner in which the substantive law is submitted to the jury in a FELA case is governed by state law. Duren v. Union Pacific R. Co., 980 S.W.2d 77, 79 (Mo.App.1998).
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Case: 19-11390 Date Filed: 03/23/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11390
Non-Argument Calendar
________________________
D.C. Docket No. 1:19-cv-00543-ELR
EARNEST MARSALIS, JR.,
Plaintiff - Appellant,
versus
STM READER, LLC,
STM MEDIA, LLC, and
SUN-TIMES MEDIA GROUP, LLC,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 23, 2020)
Before MARTIN, HULL, and MARCUS, Circuit Judges.
PER CURIAM:
Case: 19-11390 Date Filed: 03/23/2020 Page: 2 of 9
On August 30, 2001, the Chicago Reader, a weekly newspaper in Chicago,
Illinois, reported on a police misconduct lawsuit against then-officer Earnest
Marsalis and the City of Chicago. Nearly seventeen years later, Marsalis,
proceeding pro se, sued the Reader and the Chicago Sun-Times in the Northern
District of Georgia alleging a variety of state torts. In response to a motion to
dismiss, the district court dismissed the case for lack of personal jurisdiction.
Marsalis, still proceeding pro se, then filed an amended lawsuit, alleging some of
the same tort claims under state law as well as new constitutional torts and a claim
for racial discrimination.1 The magistrate judge announced Marsalis’s new
complaint 2 would be subjected to a frivolity determination under 28 U.S.C.
§ 1915(e)(2)(B) and, on April 9, 2019, the district court sua sponte dismissed the
complaint. The district court based its dismissal on Marsalis’s failure to state a
claim under his federal causes of action, his failure to rectify the previously
identified defects in personal jurisdiction, and the court’s determination that
Marsalis’s complaint was an impermissible shotgun pleading. This is Marsalis’s
appeal.
1
We refer to the first case, No. 18-CV-1555 (N.D. Ga.), as “Marsalis I,” and the second
case, No. 19-CV-543 (N.D. Ga.), as “Marsalis II”. We also note that at the time of dismissal in
Marsalis I, Marsalis was proceeding against the Reader and the Sun-Times; while, in Marsalis II,
the defendants are the Reader, the Sun-Times, and Sun-Times Media Group, LLC. Either way,
we refer to the defendants collectively as the “Chicago Newspapers.”
2
For ease, we refer to the complaint filed in Marsalis II as the “complaint.”
2
Case: 19-11390 Date Filed: 03/23/2020 Page: 3 of 9
Following careful review, we affirm the dismissal of Marsalis’s complaint
and remand with instructions that the district court amend its April 9, 2019 order to
state that its dismissal is without prejudice.
I.
District courts must dismiss an action brought in forma pauperis if the action
(i) “is frivolous or malicious” or (ii) “fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B). Dismissal for frivolity is intended for
“indisputably meritless legal theor[ies]” and “those claims whose factual
contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327, 109 S.
Ct. 1827, 1833 (1989). Sua sponte dismissal for failure to state a claim under
§ 1915(e)(2)(B), meanwhile, is interpreted conterminously with dismissal under
Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997). We review a sua sponte frivolity dismissal for abuse of
discretion and review de novo a sua sponte dismissal for failure to state a claim.
Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003).
II.
A.
Regardless of whether federal jurisdiction is based on diversity between the
parties or the presence of a federal question, the plaintiff bears the burden of
establishing that the court’s exercise of jurisdiction over the defendant comports
3
Case: 19-11390 Date Filed: 03/23/2020 Page: 4 of 9
with the forum state’s long-arm statute. Sculptchair, Inc. v. Century Arts, Ltd., 94
F.3d 623, 626–27 (11th Cir. 1996). Under Georgia law, personal jurisdiction over
a nonresident may be established if the defendant (1) transacted business within the
state, giving rise to the plaintiff’s claim; (2) committed a tortious act within the
state; or (3) committed a tortious act outside the state but the defendant regularly
does business or derives substantial revenue from goods used or services rendered
in the state. O.C.G.A. § 9-10-91(1)–(3); Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3d 1249, 1258–60, 1264 (11th Cir. 2010). We interpret
and apply Georgia's long-arm statute “in the same way as would the Georgia
Supreme Court.” Diamond Crystal Brands, 693 F.3d at 1258.
B.
Marsalis asserts claims for “assault, intentional inflection of emotional
distress, misrepresentation, 5th Amend[ment] due process clause v[iol]ation,[]
invasion of privacy,” and racial discrimination. These torts were allegedly caused
by the Chicago Newspapers’ 2001 publication of the Article. Marsalis does not
assert that any of the Chicago Newspapers are Georgia residents. Instead, Marsalis
alleges that jurisdiction is proper because the Chicago Newspapers “used the
telephone, Internet, and Emails in order to perpetuate a Fraud, Misrepresentation
and other offenses.” The relevant question, then, is whether publication of the
4
Case: 19-11390 Date Filed: 03/23/2020 Page: 5 of 9
Article subjects the Chicago Newspapers to personal jurisdiction in Georgia under
any of the bases in the long-arm statute.
It does not. First, Marsalis cannot satisfy subsection (1) because his claims
do not arise out of any business transaction in Georgia. Jurisdiction exists on the
basis of transacting business in Georgia if “(1) the nonresident defendant has
purposefully done some act or consummated some transaction in this state, (2) if
the cause of action arises from or is connected with such act or transaction, and
(3) if the exercise of jurisdiction by the courts of this state does not offend
traditional fairness and substantial justice.” Amerireach.com, LLC v. Walker, 719
S.E.2d 489, 496 (Ga. 2011) (quotation marks omitted). Without reaching the
second and third aspects, we conclude that Marsalis has failed to satisfy this
inquiry. This Court has previously stated that the publication of a single news
article does not constitute the transaction of business under Georgia’s long-arm
statute. See Henriquez v. El Pais Q’Hubocali.com, 500 F. App’x 824, 828 (11th
Cir. 2012) (per curiam) (unpublished) (citing Aero Toy Store, LLC v. Grieves, 631
S.E.2d 734, 737 (Ga. Ct. App. 2006)). Because Marsalis has not alleged that the
Chicago Newspapers have committed any acts or omissions other than the online
publication of the Article, his claims cannot proceed under this prong of the long-
arm statute.
5
Case: 19-11390 Date Filed: 03/23/2020 Page: 6 of 9
Nor can Marsalis proceed under the second prong of the long-arm statute.
Under Georgia law, where a claim is based on a communication sent through the
internet or telephone, the conduct “occurs” at the physical place of transmission.
See LABMD, Inc. v. Tiversa, Inc., 509 F. App’x 842, 844 (11th Cir. 2013) (per
curiam) (unpublished); Huggins v. Boyd, 697 S.E.2d 253, 255 (Ga. Ct. App. 2010).
Marsalis does not allege that the Chicago Newspapers published the Article within
Georgia. Indeed, the Chicago Newspapers submitted an affidavit to the district
court stating that the Reader published the Article in Chicago, Illinois. As a result,
Marsalis’s claims cannot succeed under subsection (2) because he does not allege
the Chicago Newspapers committed any tort within Georgia.
Finally, Marsalis has not established jurisdiction under subsection (3)
because he does not allege that the Chicago Newspapers regularly conduct or
solicit business in Georgia, or that they have derived substantial revenue from
goods used or services rendered in Georgia. See Henriquez, 500 F. App’x at 828–
29. Much like with subsection (1), the mere publication of an online article is not
enough to satisfy this jurisdictional basis. See id. at 829 (holding that the third
prong of the long-arm statute is not satisfied based on “[t]he fact that a particular
website displays an advertisement that is viewable in Georgia or shows a company
that does business in Georgia” (citing Smith v. Air Ambulance Network, Inc., 427
S.E.2d 305, 305 (Ga. Ct. App. 1993)).
6
Case: 19-11390 Date Filed: 03/23/2020 Page: 7 of 9
Marsalis’s only response is to point to Evans v. Chicago Reader, No. 09-CV-
368 (CAP) (N.D. Ga. filed Feb. 11, 2009), which he claims shows that personal
jurisdiction in Georgia against the Reader has “long been established in previous
litigation.” Marsalis is mistaken. The Evans court never found that personal
jurisdiction against the Reader was proper in Georgia. In fact, the district court
never issued any merits decisions in that case: the action was dismissed with
prejudice on joint stipulation of the parties while a motion to dismiss was pending.
Stipulation for Dismissal with Prejudice, Evans, No. 09-CV-368 (CAP) (N.D. Ga.
Mar. 12, 2009) (ECF 9). Even accepting as true Marsalis’s allegation that Evans
was resolved through “a cash settlement made to the defendant,” that is irrelevant
because Marsalis’s claims have nothing to do with the facts at issue in Evans. Cf.
Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974)
(stating that a settlement agreement in the action at issue may constitute transaction
of business for long-arm statute); Lee v. Hunt, 483 F. Supp. 826, 832 (W.D. La.
1979) (“The negotiation and execution of a settlement agreement constitutes
transaction of business and, when that agreement is the subject of a lawsuit,
justifies resort to the long-arm statute.”), aff’d, 631 F.2d 1171 (5th Cir. 1980).
Evans does not establish that the Chicago Newspapers are subject to personal
7
Case: 19-11390 Date Filed: 03/23/2020 Page: 8 of 9
jurisdiction in Georgia. As a result, the district court did not err in dismissing the
complaint in Marsalis II for want of personal jurisdiction.3
III.
Although the district court dismissed the complaint in Marsalis II with
prejudice, we will remand with instructions that the district court amend its April 9,
2019 order to state that its dismissal is without prejudice. This is necessary for
several reasons.
First, a dismissal on jurisdictional grounds, as opposed to a merits dismissal,
cannot form the basis for a dismissal with prejudice. See Republic of Panama v.
BCCI Holdings (Lux.) S.A., 119 F.3d 935, 940 (11th Cir. 1997) (citing Madara v.
Hall, 916 F.2d 1510, 1514 n.1 (11th Cir. 1990)).
Second, while the district court’s dismissal order did reach the merits of the
claims in the complaint, this was error because “[a] defendant that is not subject to
the jurisdiction of the court cannot be bound by its rulings.” Id. In other words,
3
Although no party raised this issue, we note that district courts may not normally sua
sponte dismiss a complaint for lack of personal jurisdiction “without first giving the parties an
opportunity to present their views on the issue.” Lipofsky v. N.Y. State Workers Comp. Bd.,
861 F.2d 1257, 1258 (11th Cir. 1988). However, Lipofsky did not limit the district court here.
The Chicago Newspapers already objected to the complaint in Marsalis I on grounds of personal
jurisdiction. There is no reason to expect they would have waived this defense when faced with
an amended complaint with nearly identical jurisdictional allegations (and, by that same token,
defects). Furthermore, the Chicago Newspapers had the chance to litigate the issue of personal
jurisdiction in Marsalis II through this appeal. It is plain from their briefing—which urges
affirmance of the district court’s jurisdictional ruling—that they do not wish to waive this
defense. These facts lead us to conclude that Lipofsky did not prevent the district court from sua
sponte dismissing the complaint in Marsalis II on jurisdictional grounds.
8
Case: 19-11390 Date Filed: 03/23/2020 Page: 9 of 9
once the district court concluded that personal jurisdiction over the Chicago
Newspapers was improper in this forum, it should have ended its analysis rather
than reach the merits of Marsalis’s claims. See Madara, 916 F.2d at 1514. While
courts can “bypass the issue of personal jurisdiction if a decision on the merits
would favor the party challenging jurisdiction and the jurisdictional issue is
difficult,” Panama, 119 F.3d at 941, such a step would be improper in this case
given the relative ease of the jurisdictional issue. And given the relative ease of
the jurisdictional issue, we too need not, and do not, reach any merits issues.
IV.
For these reasons, we AFFIRM the district court’s dismissal of the
complaint in Marsalis II for lack of personal jurisdiction. We REMAND the case
to the district court for the limited purpose of amending its order to state that the
dismissal is without prejudice.
9
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89 Mich. App. 290 (1979)
279 N.W.2d 301
McELMURRY
v.
NINE
Docket No. 77-4994.
Michigan Court of Appeals.
Decided February 27, 1979.
Lavey & Taber, for plaintiff.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by John P. Jacobs and Charles T. McGorisk), for defendants.
Before: M.F. CAVANAGH, P.J., and D.E. HOLBROOK, JR., and N.J. KAUFMAN, JJ.
PER CURIAM.
Plaintiff filed suit charging the defendants with legal malpractice and seeking damages therefor. Defendants filed a motion for accelerated judgment. The basis for this motion was a mutual general release signed by the plaintiff and defendant, Paul L. Nine, following institution of this suit. The release referred specifically to the instant litigation.
At the hearing on the motion the defendants argued that the release was an absolute bar to the action. Plaintiff countered that defendant had violated the Code of Professional Responsibility by contacting plaintiff directly and inducing him to sign the release and that this conduct constituted fraud and duress. Plaintiff also argued that the defendant made certain false representations to the plaintiff which induced him to sign the release, including that the defendant would be financially ruined by the litigation, that he had never been sued for malpractice at any prior time, and that such litigation would adversely affect the plaintiff's business relationship with a business partner of the defendants. Plaintiff argued, therefore, that the release was obtained by fraud and duress. It was lastly urged by plaintiff that the release must fail for want of adequate consideration.
The trial court, after considering the foregoing arguments, granted accelerated judgment for defendants. Plaintiff now appeals by right.
*292 We have reviewed the record and briefs and have given, as we must, considerable weight to the trial court's findings. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969). We concur in its determination that the release was "fairly and knowingly" made. See Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957), and Farwell v Neal, 40 Mich App 351, 355; 198 NW2d 801 (1972).
Lastly, plaintiff's suggestion that the release was unenforceable for lack of consideration is without merit. The settlement of the parties' respective disputed claims furnishes good consideration. 6 Michigan Law & Practice, Contracts, § 58, p 319. See also MCL 566.1; MSA 26.978(1).
Affirmed. Costs to appellees.
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319 F.3d 284
Plato FOUFAS and Plato Foufas & Co., Plaintiffs-Appellees,v.Stanley J. DRU, Defendant-Appellant.
No. 02-1673.
United States Court of Appeals, Seventh Circuit.
Argued October 15, 2002.
Decided February 5, 2003.
Robert C. Keck, Jr. (argued), Keck & Associates, Chicago, IL, for Plaintiffs-Appellees.
Richard R. Winter (argued), Holland & Knight, Chicago, IL, for Defendant-Appellant.
Before POSNER, RIPPLE, and KANNE, Circuit Judges.
POSNER, Circuit Judge.
1
This appeal requires us to consider the proper interpretation of a release. The parties, Foufas and Dru (we can ignore Foufas's corporation), are engaged in the business of managing Indian casinos. They joined forces in the management of casinos for two tribes, the Lummi tribe in Washington and the Sycuan tribe in California, but then had a falling out that resulted in Foufas's suing Dru in a federal district court in Chicago, basing federal jurisdiction on diversity of citizenship. The parties settled the case by means of an agreement, which the district court retained jurisdiction to enforce, in two parts. In the first part, Dru agreed to pay Foufas $275,000 in respect of the management of the Lummi tribe's casino, and in the second part he agreed to pay 50 percent of any money that Dru received in respect of the management of the Sycuan tribe's casino, Dru and the tribe being at odds over what the tribe owed. The settlement was made in 1998. The following year the parties entered into a further settlement agreement. It states that whereas "on or about January 1, 1999, the Parties have entered into a resolution of their business differences" and "desire to terminate any potential liability that may exist between them pursuant to such business dealings," the parties agree to release each other "from and against any and all claims, rights, debts" etc. "of every nature, character and description, whether known or unknown, suspected or unsuspected, which the Parties hereto, or any of them, now own or hold, or have at any time heretofore owned or held, or may at any time hereafter own or hold." The release was dated January 22, 1999.
2
The reference to "on or about January 1, 1999" concerns the fact that in December 1998 Dru had advised Foufas that the Sycuan tribe was prepared to settle the dispute over the casino management contract, and that the following month Dru and Foufas had met over the matter and had agreed that Foufas would obtain a one-half interest in a piece of real estate owned by Dru, who in addition would pay Foufas 50 percent of any money that he received in the future from the Sycuan tribe.
3
Dru contends that the broad language of the release extinguished not only part two of the 1998 settlement agreement, the part related to the Sycuan tribe, which Foufas concedes was superseded by the "on or about January 1, 1999" deal and was extinguished by the new settlement agreement, the agreement of January 22 that we are calling the release, but also part one of the 1998 settlement, the part that related to Dru's agreement to pay Foufas $275,000 in respect of Foufas's management of the Lummi tribe's casino. Foufas disagreed with Dru's interpretation and moved the district judge — who, remember, had retained jurisdiction to enforce the settlement agreement — to order Dru to pay Foufas the $275,000. The judge agreed, and Dru appeals.
4
When a judge is interpreting his own order, such as a consent decree that he entered, his interpretation is entitled to greater weight than when he is interpreting a contract with the formation of which he had nothing to do. United States v. Alshabkhoun, 277 F.3d 930, 933-34 (7th Cir.2002); In re Weber, 25 F.3d 413, 416 (7th Cir.1994); In re Chicago, Rock Island & Pacific R.R., 865 F.2d 807, 810-11 (7th Cir.1988); United States v. Board of Education of City of Chicago, 717 F.2d 378, 382 (7th Cir.1983); Officers for Justice v. Civil Service Comm'n, 934 F.2d 1092, 1094 (9th Cir.1991); Brown v. Neeb, 644 F.2d 551, 558 n. 12 (6th Cir.1981). Not all courts agree, see County of Suffolk v. Alcorn, 266 F.3d 131, 137 (2d Cir.2001); Holland v. New Jersey Dept. of Corrections, 246 F.3d 267, 277-78 (3d Cir.2001), though they do not explain their disagreement. Support for extending the principle to a settlement approved by the judge though not incorporated in a formal consent decree — the logic of the principle embraces that case — may be found in Meyer v. Oppenheimer Management Corp., 764 F.2d 76, 80 (2d Cir.1985); id. at 88 (concurring opinion), and in Wilkinson v. FBI, 922 F.2d 555, 559 (9th Cir.1991), overruled on another ground, Hagestad v. Tragesser, 49 F.3d 1430 (9th Cir.1995), though a statement denying the extension of the principle to settlement agreements is found, but without elaboration, in United States v. Rand Motors, 305 F.3d 770, 774 (7th Cir. 2002).
5
The principle is not applicable here, however. Although the judge's order that is appealed from was an order enforcing the 1998 settlement agreement that he had approved, the order is the product of the judge's interpretation of the 1999 release, which he had not approved, and so we do not rest decision on the judge's interpretive discretion. South v. Rowe, 759 F.2d 610, 613 and n. 4 (7th Cir.1985); cf. Amax Land Co. v. Quarterman, 181 F.3d 1356, 1368 (D.C.Cir.1999). Compare Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 152-53, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991); Goluba v. School District of Ripon, 45 F.3d 1035, 1038 n. 5 (7th Cir.1995); South Shore Hospital, Inc. v. Thompson, 308 F.3d 91, 97 (1st Cir.2002); Lomak Petroleum, Inc. v. FERC, 206 F.3d 1193, 1198 (D.C.Cir.2000). An author may not be a privileged interpreter of his writings, but his interpretation is entitled to some weight. Judges are rarely the actual authors of the consent decrees that they sign or the (other) settlements that they approve, but having been present at the creation they may have insights into the meaning of the decree or other settlement that are denied to the appellate judges who review the judge's decision. (Or may not; their review may have been cursory, but we trust them not to claim to remember the circumstances of the formation of a settlement agreement if they do not.)
6
In holding that a consent decree is to be interpreted essentially as a contract, the Supreme Court was explicit that "the circumstances surrounding the formation of the consent order [= contract]" were among the aids to interpretation on which the court could rely. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975). (The analysis applies with equal force to a settlement agreement.) If those circumstances are known to the judge at first hand, his interpretation comes to the reviewing court with added weight. But the rationale for deferential review fails when as in this case the judge's decision does not turn on his interpretation of the agreement that he approved.
7
No matter; it is an easy case. Dru wants us to look only at the language of the release itself, and not at the "whereas" clauses that introduce it. We decline the invitation. To read language acontextually is an almost certain route to error. AM Int'l, Inc. v. Graphic Management Associates, Inc., 44 F.3d 572, 575, 577 (7th Cir. 1995); Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1013 (7th Cir. 1984) (en banc). Especially when the context is supplied by the very document that is being interpreted. The "whereas" clauses indicate that the context of the release is the parties' settlement of the second part of their dispute, the part concerning the Sycuan tribe's casino. Well, replies Dru, if that's the case, why didn't the parties just insert "except regarding the $275,000" in the release part of the document? The answer is that this would have implied that any other dispute the parties might have, now or in the future, would be subject to the release, even if it had nothing to do with the Sycuan tribe, because only the $275,000 issue had been excluded.
8
Dru misunderstands the architecture of a release. The releasing language must be very broad so that a party cannot, by merely refiling his claim or recasting it in other legal terms or embellishing it with new facts, escape the force of the release. The breadth of the release language in this case is not uncharacteristic, at least in releases governed like this one by California law. See, e.g., Vahle v. Barwick, 93 Cal.App.4th 1323, 113 Cal.Rptr.2d 793, 794-95 (2001); Wilshire-Doheny Associates, Ltd. v. Shapiro, 83 Cal.App.4th 1380, 100 Cal.Rptr.2d 478, 482 (2000); Parsons v. Tickner, 31 Cal.App.4th 1513, 37 Cal. Rptr.2d 810, 820 (1995). But then there has to be something, supplied by other language in the agreement or sometimes by extrinsic evidence of context, to tie the language to the circumstances out of which the parties' dispute arose. See Neverkovec v. Fredericks, 74 Cal.App.4th 337, 87 Cal.Rptr.2d 856, 865-67 (1999); Winet v. Price, 4 Cal.App.4th 1159, 6 Cal.Rptr.2d 554, 557 (1992); Atalla v. Abdul-Baki, 976 F.2d 189, 193 (4th Cir.1992). That something was supplied by the "whereas" clauses, which made clear that the release concerned the disputes that had arisen out of the management contract for the Sycuan tribe's casino.
9
Any other interpretation would produce absurd results, which is a good reason for declining an invitation to read contractual (or statutory, or constitutional) language literally, as we had occasion to note recently in FutureSource LLC v. Reuters Ltd., 312 F.3d 281, 284-85 (7th Cir.2002). At argument we asked Dru's lawyer whether the release would prevent Foufas from suing Dru for battery if Dru punched Foufas in the eye, and to our surprise the lawyer said that it would. We can imagine the parties rising from the settlement table and Dru telling Foufas, "Now that you've signed the release, I can do with impunity (and immunity) what I've been wanting to do for a long time — and that is punch you in the face." And (according to Dru's lawyer) Foufas couldn't sue.
10
Enough said.
11
AFFIRMED.
12
RIPPLE, Circuit Judge, concurring.
13
I join the judgment and, with the reservation expressed here, the opinion of the court.
14
I doubt the prudence of expressing, in what is admittedly dicta, a view on the appropriate degree of deference owed the interpretation of the trial judge who approved the settlement agreement. As my colleagues note, the issue is not entirely free from doubt, and resolution is not necessary to the decision in this case. All too often, dicta of this sort is treated as a settled principle in later cases, a result incompatible with our doctrines of stare decisis and precedent and often a destructive force in our collegial deliberations.
15
Here, my colleagues take the precaution of labeling the discussion as dicta and noting explicitly that it is not a controlling element in our decision today. It will be the responsibility of future panels to heed that cautionary language.
16
In all other respects, I join my colleagues' fine analysis of the problem before us.
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05/19/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0155
No. DA 20-0155
IN THE MATTER OF:
C.L.,
A Youth.
GRANT
Pursuant to authority granted under Mont. R. App. P. 26(1), the
Appellant is given an extension of time until June 19, 2020 to prepare,
file, and serve the Appellant’s opening brief.
Electronically signed by:
Bowen Greenwood
Clerk of the Supreme Court
May 19 2020
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13 Cal.Rptr.3d 777 (2004)
118 Cal.App.4th 1477
Binyam GEBREMICAEL, Plaintiff and Appellant,
v.
CALIFORNIA COMMISSION ON TEACHER CREDENTIALING, Defendant and Respondent.
No. C044181.
Court of Appeal, Third District.
May 27, 2004.
*778 Rothschild, Wishek & Sands, Michael Rothschild, Sacramento, and Yana U. Berrier, Yuba City, for Plaintiff and Appellant.
Bill Lockyer, Attorney General, James M. Humes, Senior Assistant Attorney General, Frank S. Furtek, Supervising Deputy Attorney General, Julie Weng-Gutierrez, Deputy Attorney General, for Defendant and Respondent.
NICHOLSON, Acting P.J.
Plaintiff Binyam Gebremicael appeals from the trial court's determination the reduction of his prior felony conviction to a misdemeanor pursuant to Penal Code section 17 had no effect on his eligibility to apply for a teaching credential. We reverse.
FACTS AND PROCEDURAL HISTORY
In 1994, plaintiff pled no contest to one count of violating Penal Code section 246.3, discharge of a firearm in a grossly negligent manner, a felony. The trial court found defendant guilty as charged, but it suspended the imposition of sentence and admitted plaintiff to probation for three years, subject to plaintiff serving 90 days in the county jail.[1]
In 1998, the trial court granted plaintiff's petition to reduce the felony conviction to a misdemeanor pursuant to Penal Code section 17. In December 2002 and pursuant to Penal Code section 1203.4, the trial court granted plaintiff's petition to withdraw his plea and have the matter dismissed.
Meanwhile, in December 2001, plaintiff applied to defendant California Commission *779 on Teacher Credentialing (Commission) for a teaching credential. As required by the application, plaintiff admitted he had been convicted in 1994 of violating Penal Code section 246.3. He also noted his conviction had been reduced to a misdemeanor in 1998. Court documents subsequently requested by the Commission confirmed these facts.
In July 2002, plaintiff filed another application with the Commission, this one for an emergency substitute teaching credential. Plaintiff again disclosed his prior conviction and its subsequent reduction to a misdemeanor.
By letter dated September 11, 2002, the Commission denied both of plaintiff's applications. The Commission explained Education Code section 44346.1 mandated it to deny applications for credentials to any person who had been convicted of a serious felony, and plaintiff's prior conviction was a serious felony for that purpose.
Plaintiff filed a petition for writ of mandate and complaint for declaratory relief against the Commission. He argued the trial court's reduction of his conviction to a misdemeanor "for all purposes" under Penal Code section 17 included for purposes of teacher credentialing. The Commission, he asserted, was not obligated to reject his applications where his felony had become a misdemeanor by the time he applied. He also sought attorneys fees pursuant to Code of Civil Procedure section 1021.5 and Government Code section 800.
The trial court denied the petition and complaint. Plaintiff timely appealed.
DISCUSSION
Plaintiff claims the mandatory denial provision of Education Code section 44346.1 does not apply to him because at the time of his applications he stood convicted of a misdemeanor, not a felony. We agree.
Education Code section 44346.1 reads in pertinent part:
"(a) The commission shall deny any application for the issuance of a credential made by an applicant who has been convicted of a violent or serious felony....
"(b) This section applies to any violent or serious offense which, if committed in this state, would have been punishable as a violent or serious felony.
"(c) For purposes of this section, a violent felony is any felony listed in subdivision (c) of Section 667.5 of the Penal Code and a serious felony is any felony listed in subdivision (c) of Section 1192.7 of the Penal Code.
"(d) Notwithstanding subdivision (a), the commission may, but is not required to, grant a credential to an applicant who has been convicted of a violent or serious felony if the person is eligible for, and has obtained, a certificate of rehabilitation and pardon pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code."
Plaintiff pled no contest to violating Penal Code section 246.3, a wobbler punishable as either a felony or a misdemeanor and listed as a violent felony under Penal Code section 667.5, subdivision (c), and a serious felony under Penal Code section 1192.7, subdivision (c). A wobbler offense stands as a felony unless and until one of the conditions listed in Penal Code section 17, subdivision (b), is satisfied. (Pen.Code, § 17, subds.(a), (b); In re Trummer (1964) 60 Cal.2d 658, 660, 36 Cal.Rptr. 281, 388 P.2d 177.)
Here, the trial court, upon plaintiff's petition, reduced plaintiff's felony conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b)(3), which reads in relevant part:
*780 "(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] ... [¶]
"(3) When the court grants probation to a defendant without imposition of sentence and ... on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." (Italics added.)[2]
Relief under Penal Code section 17, subdivision (b), is not retroactive in operation. (People v. Marsh (1982) 132 Cal.App.3d 809, 813, 183 Cal.Rptr. 455.) A crime subject to its provisions is regarded as a misdemeanor only for purposes subsequent to judgment. (People v. Weaver (1943) 56 Cal.App.2d 732, 737-738, 133 P.2d 818.)
However, once a court has reduced a wobbler to a misdemeanor pursuant to Penal Code section 17, the crime is thereafter regarded as a misdemeanor "for all purposes." This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as plaintiff stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring.
In People v. Banks (1959) 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102 (Banks), the Supreme Court shed light on how Penal *781 Code section 17 operates. That case arose from a defendant's conviction of unlawfully possessing a firearm by a felon under Penal Code section 12021. The defendant contended he was not a previously convicted felon. He had earlier pled guilty to a Vehicle Code wobbler offense, but the trial court suspended imposition of sentence and ordered him to probation plus 12 months in the county jail. Defendant completed probation without violation, and argued these facts demonstrated he had been convicted only of a misdemeanor.[3] (Id. at pp. 375-377, 1 Cal.Rptr. 669, 348 P.2d 102.)
The court disagreed, finding he remained convicted of felony because he failed to take the available procedural steps to reduce his conviction to a misdemeanor. However, in reaching its conclusion, the court explained in dicta the operation and effect of a felony conviction to a wobbler offense that may subsequently be reduced to a misdemeanor. Because of the discussion's application here, we quote it at length:
"An integral and important part of the penological plan of California is the discretionary retention in the trial court of jurisdiction over the defendant and the cause of action against him in a large area of crimes by virtue of the probation procedures. It is apparent from mere perusal of the pertinent legislation that a verdict or plea of guilty in a superior court criminal case is not ipso facto a final conviction. If judgment is pronounced it may be reversed on appeal and set completely at naught; thereby, if there is not a new trial and a new conviction the defendant will be a person who has not for any purpose whatsoever been convicted of a felony. The conviction may also be set at nought, except for expressly defined purposes, when jurisdiction and control over the defendant and the cause of action have been retained in the court under the probation law (with or without pronouncement of sentence) and the probation procedures have been fully executed. If jurisdiction over the subject and res of the action ceases to exist in the court (trial or appellate) the judgment becomes final and the trial procedures have ended....
"When the verdict or plea of guilty comes in, the trial court, if it chooses to retain jurisdiction under the probation statutes, may either (1) pronounce judgment and suspend its execution; i.e., refrain from issuing a commitment of the defendant to the adult or other prison authority pending administration of the probation plan, or (2) it may suspend (refrain from) the pronouncement of judgment, subject to administration of the probation laws. Of course in the latter case, it does not suspend execution of the judgment and withhold commitment to the adult or other prison authority because without having pronounced judgment it has no power to commit the defendant to the prison authority....
"... Upon pronouncement of `sentence of imprisonment in a state prison for any term less than life' (Pen.Code, § 2600) the defendant acquires the legal status of a person who has been both convicted of a felony and sentenced to such imprisonment.... [¶] ... [¶]
"By contrast, the defendant whose guilt has been established (by plea, finding or verdict) but who has not been sentenced to prison, i.e., where probation has been granted and the proceedings have been *782 suspended without entry of judgment, is subject to no disabilities whatsoever except those specifically declared by some other provision of law or affirmatively prescribed by the court as terms or conditions of probation.... He does, however, for some specific purposes for administration of the probation law and other laws expressly made applicable to persons so situated stand convicted of a felony. For example, under the statute probation may be revoked at any time (Pen.Code, § 1203.3) and the probationer may be arrested without warrant. (Pen.Code, § 1203.2; see also Pen.Code, § 1203.2a.) Such conviction, in itself and without pronouncement of judgment, establishes a status which is attended by certain disabilities. Here, upon his plea of guilty in the [prior case], the defendant acquired the status not then final, and conditionally subject to expungement but nevertheless existing of a person convicted of a felony. He was a member of that class at the time he was admitted to probation. It is true that the essential attribute of that class was only provisional; it could, in due course, have been changed to that of a misdemeanant by pronouncement of a sentence to the county jail or for a fine. And even the record of misdemeanor conviction could have been changed to not guilty and the accusation dismissed by compliance with section 1203.4. But none of these things was done....
"... And here it is to be presumed that the ... judge who suspended imposition of sentence for [the Vehicle Code violation] did so with recognition that defendant would remain classified as one convicted of a felony within the meaning of section 12021 of the Penal Code until and unless the ... offense was reduced to a misdemeanor by imposition of appropriate sentence or until defendant successfully completed probation and received the statutory rehabilitation provided for by section 1203.4 of the Penal Code." (Banks, supra, 53 Cal.2d at pp. 383, 384, 385, 386-387, 388, 1 Cal.Rptr. 669, 348 P.2d 102, original italics omitted, italics added.)
The Commission argues we must focus on the nature of the crime charged and not the actual punishment imposed in determining whether plaintiff stands convicted of a felony for purposes of Education Code section 44346.1. The express language in the pertinent statute, as illustrated by Banks, contradicts the Commission. The relevant language in Penal Code section 12021 and Education Code section 44346.1 is similar. Both statutes apply to a person who has been convicted of a felony.[4] However, as the Banks court observed, a person whose felony conviction is reduced to a misdemeanor will no longer be classified as one convicted of a felony within the meaning of Penal Code section 12021. (Banks, supra, 53 Cal.2d at p. 388, 1 Cal.Rptr. 669, 348 P.2d 102.)
Whether a crime is a felony in California is not determined by its nature. It is the potential punishment for an offense which determines whether the offense is a felony or a misdemeanor, except as the offense is subject to the circumstances in Penal Code section 17, subdivision (b), that render it a misdemeanor for all purposes. (Pen.Code, § 17, subd. (a); People v. Nguyen (1997) 54 Cal.App.4th 705, 711, 63 Cal.Rptr.2d 173.) As Banks observes, a person convicted of a wobbler but admitted into probation is a felon only provisionally, and he can become a person *783 convicted of a misdemeanor upon the determination of a trial court under the requirements of Penal Code section 17. That is what occurred here.
The Commission admits plaintiff had only a misdemeanor on his record at the time he applied for his credentials, but argues subdivision (b) of Education Code section 44346.1 authorizes it to look to the nature of the crime and continue treating the conviction as a felony when considering an application for a teaching credential. Subdivision (b) makes the statute applicable to "any violent or serious offense which, if committed in this state, would have been punishable as a violent or serious felony." (Italics added.) The Commission asserts this clause extends the statute to any wobbler conviction because all wobblers are punishable as felonies. We disagree. This clause merely extends the statute's coverage to crimes committed outside California by persons who apply for a credential. By its own language, the clause applies only to crimes that were not committed in California. Crimes committed in California are addressed in subdivision (a). The Commission's interpretation would render subdivision (a) surplusage.
The Commission claims excluding a person whose felony conviction is reduced to a misdemeanor from the mandatory denial provisions of Education Code section 44346.1 is contrary to the statute's legislative history. We need not review legislative history when enforcing unambiguous statutory language. (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 412, 267 Cal.Rptr. 589, 787 P.2d 996.)
Moreover, as observed in Banks, when the Legislature wants to continue treating a felony reduced to a misdemeanor under Penal Code section 17 as a felony, it expressly says so, and the court will treat the person as such only upon those occasions. For example, state statute requires the immediate suspension of an attorney from practicing law if the attorney is convicted of a felony. (Bus. & Prof.Code, § 6102.) The Legislature expressly stated a felony reduced to a misdemeanor under Penal Code section 17, subdivision (b)(3), is still treated as a felony for purposes of this disciplinary rule. (Bus. & Prof.Code, § 6102, subd. (b).)
Similarly, for purposes of the "Three Strikes law", the Legislature has declared a prior felony conviction proven by the prosecution as a prior strike retains its status as a felony even if it had been reduced after initial sentencing to a misdemeanor under Penal Code section 17. (Pen.Code, §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).)
"`"It is a settled rule of statutory construction that where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statute. [Citation.]"'" (In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1499, 69 Cal.Rptr.2d 880.) Here, the Legislature included no such exception to Penal Code section 17 when it adopted Education Code section 44346.1.
"By its very terms, Penal Code section 17, subdivision (b)(3) contemplates that a probationer might come before the court by way of application to seek a reduction of his felony wobbler offense to a misdemeanor. Where such a motion is granted, as it was here, the unambiguous language of Penal Code section 17 requires that the offense be treated as a misdemeanor thereafter `for all purposes,' and we may not create exceptions to that rule without further legislative guidance. [Citations.]" (People v. Camarillo (2000) 84 Cal.App.4th 1386, 1394, 101 Cal.Rptr.2d 618.)
*784 The Commission inappropriately relies on Rusheen v. Drews (2002) 99 Cal.App.4th 279, 120 Cal.Rptr.2d 769 (Rusheen) as authority for treating plaintiff's conviction as a felony. Under Penal Code section 1016, a plea of guilty or no contest to a crime punishable as a felony is admissible as a party admission in a civil suit growing out of the criminal act. (Pen.Code, § 1016, subd. 3.) The Rusheen defendant had pled no contest to a felony. Her conviction was subsequently reduced to a misdemeanor under Penal Code section 17. (Rusheen, supra, 99 Cal.App.4th at p. 282, 120 Cal.Rptr.2d 769.) In a civil suit against her, the defendant argued reduction of her prior felony conviction "for all purposes" under Penal Code section 17 retroactively rendered her plea as a plea to a misdemeanor, a plea which is not admissible in a subsequent civil action. (Id. at p. 284, 120 Cal.Rptr.2d 769.)
The appellate court reasoned Penal Code section 17, subdivision (b) did not change the fact the defendant pled no contest to a crime punishable as a felony, and under the more specific terms of Penal Code section 1016, that plea was admissible in civil actions. (Rusheen, supra, 99 Cal.App.4th at pp. 285-287, 120 Cal.Rptr.2d 769.) The ruling is also consistent with cases cited above holding relief under Penal Code section 17, subdivision (b) does not apply retroactively.
Here, plaintiff does not claim Penal Code section 17, subdivision (b) operates retroactively to change his conviction to a misdemeanor for all purposes before the trial court granted him relief. Also, as discussed above, Education Code section 44346.1 does not contain a specific exception to Penal Code section 17's reduction of plaintiff's crime to a misdemeanor "for all purposes."
Furthermore, Education Code section 44346.1 prevents only those persons convicted of a felony from receiving a credential. The statute at issue in Rusheen, Penal Code section 1016, authorized the admission of pleas to crimes punishable as a felony. Had the Legislature intended to prevent people such as plaintiff from ever obtaining a credential, it could have written Education Code section 44346.1 to apply to all persons convicted of a crime punishable as a felony. Its decision not to so draft the statute indicates the Legislature did not have that intent.
The Commission also incorrectly supports its position by asserting plaintiff should be subject to the mandatory denial provision because he can obtain a certificate of rehabilitation and pardon. Because plaintiff now stands convicted of a misdemeanor for all purposes, he is ineligible for a certificate of rehabilitation. Such relief is available only to persons convicted of felonies or certain misdemeanor sex offenses. (Pen.Code, § 4852.01, subds. (c), (d).)[5]
Moreover, because plaintiff is ineligible for a certification of rehabilitation and pardon under Penal Code section 4852.01, the Commission's interpretation of Education Code section 44346.1 would work the anomalous result of barring plaintiff, now convicted of a misdemeanor, and who never served time in state prison, from ever obtaining a credential but allowing a person convicted of a straight felony who served time in state prison to obtain a credential. We do not construe statutes to impose *785 such ludicrous effects. (See, e.g., Newland v. Board of Governors (1977) 19 Cal.3d 705, 712-713, 139 Cal.Rptr. 620, 566 P.2d 254 [statute requiring person convicted of crimes to obtain a certificate of rehabilitation in order to obtain teaching credential violated misdemeanant's equal protection rights because they, unlike felons, were not eligible to obtain a certificate of rehabilitation].)
We also reject the trial court's reliance on Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 1 Cal.Rptr.2d 138 (Adams) as the basis for its decision against plaintiff. Adams concerned a felon whose convictions for two straight felonies, burglary and larceny, were expunged under Kansas law. He nonetheless was denied admission to the Sacramento County Sheriff's recruit academy under Government Code section 1029, which bars any person convicted of a felony from employment as a peace officer. (Id. at pp. 875-876, 1 Cal.Rptr.2d 138.)
The felon argued the expungement resulted in him not having been convicted at all and thus rendered him eligible to become a peace officer. This court disagreed, noting California's judiciary had consistently held this state's expungement statute, Penal Code section 1203.4, had no effect on a licensing agency's statutory power to deny a license on the basis of a prior felony conviction or conviction of an offense involving "moral turpitude." (Adams, supra, 235 Cal.App.3d at pp. 880-881, 1 Cal.Rptr.2d 138.)
Adams, however, did not involve a wobbler conviction reduced to a misdemeanor under Penal Code section 17. Penal Code section 1203.4 "merely frees the convicted felon from certain `penalties and disabilities' of a criminal or like nature." (Adams, supra, 235 Cal.App.3d at pp. 877-878, 1 Cal.Rptr.2d 138.) Relief under Penal Code section 1203.4 affects only the punishment. By contrast, Penal Code section 17 reduces a wobbler felony to a misdemeanor "for all purposes." Relief under Penal Code section 17 changes the fundamental character of the offense. Adams is not controlling authority on this issue.
For all the stated reasons, we conclude the trial court erred when it denied plaintiff's petition for writ of mandate. Accordingly, we need not reach plaintiff's other arguments, and will allow the trial court on remand to address plaintiff's request for statutory attorneys fees.
DISPOSITION
The judgment is reversed and the case remanded for further proceedings consistent with this opinion. We award costs on appeal to plaintiff. (Cal. Rules of Court, rule 27(a).)
We concur: RAYE and ROBIE, JJ.
NOTES
[1] An arrest report on the 1994 incident leading to plaintiff's conviction stated plaintiff and another person began arguing over a baseball cap while attending a party. The argument became a fight, and one of plaintiff's companions joined the fray. At one point, plaintiff pointed a loaded .380-caliber handgun at one of the victims, threatened him, then pointed the gun in the air and fired it. Plaintiff and his companion then left the scene.
[2] Penal Code section 17 reads in its entirety:
"(a) A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.
"(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
"(1) After a judgment imposing a punishment other than imprisonment in the state prison.
"(2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor.
"(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.
"(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.
"(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.
"(c) When a defendant is committed to the Youth Authority for a crime punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, the offense shall, upon the discharge of the defendant from the Youth Authority, thereafter be deemed a misdemeanor for all purposes.
"(d) A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when:
"(1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or;
"(2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.
"(e) Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty."
[3] At that time, Penal Code section 17 did not authorize a court to declare a wobbler a misdemeanor upon the court granting probation without imposing sentence. (Stats.1959, ch. 532, § 1, p. 2498.) The Legislature provided this authority by adding what is now subdivision (b)(3) to Penal Code section 17 in 1963. (Stats.1963, ch. 919, § 1, pp. 2169-2170.)
[4] Penal Code section 12021 reads in relevant part: "Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, ... who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." (Pen.Code, § 12021, subd. (a)(1).)
[5] Although the Governor's constitutional clemency authority (Cal. Const., art 5, § 8, subd. (a)) is not confined to statutory applicants for pardons, Education Code section 44346.1 limits relief from its prohibition to those felons who have obtained a certificate of rehabilitation and pardon pursuant to the statutory procedure of Penal Code section 4852.01 et seq. (See Ed.Code, § 44346.1, subd. (d).)
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 05-50618
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO BALDERAS-GALVAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-2623-ALL
--------------------
Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Armando Balderas-
Galvan raises arguments that are foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998), which held that a
prior conviction is a sentencing factor under 8 U.S.C.
§ 1326(b)(2) and not a separate criminal offense. The
Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.
*
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.
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In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-08-00809-CV
____________
CHARTAMIA WASHINGTON, Appellant
V.
INSUREX, INC., Appellee
On Appeal from the County Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 921854
MEMORANDUM OPINION
Appellee, Insurex, Inc., filed a motion to dismiss for want of jurisdiction on
October 30, 2008. Appellant, Chartamia Washington, has not filed a response.
Washington filed a claim in the Small Claims Court of Harris County against
Insurex. The small claims court rendered summary judgment in favor of Insurex,
dismissing Washington's claims. Washington appealed the Small Claims Court's
ruling to Harris County Court at Law No. 3. The County Court at Law upheld the
Small Claims Court's ruling.
The judgment of a county court at law, acting as an appellate court in an appeal
from a case originating in small claims court, is final and may not be appealed to the
courts of appeals. Tex. Gov't Code Ann. § 28.053(d) (Vernon 2004); Sultan v.
Matthew, 178 S.W.3d 747, 748 (Tex. 2005). Thus, we do not have jurisdiction over
this case that originated in small claims court. Sultan, 178 S.W.3d at 748. We dismiss
this appeal for lack of subject matter jurisdiction.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Alcala and Hanks.
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77 F.3d 469
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.Enwelim Reginald MEKEA, Petitioner,v.U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 95-1997.
United States Court of Appeals, Fourth Circuit.
Submitted: Feb. 6, 1996.Decided: Feb. 26, 1996.
On Petition for Review of an Order of the Immigration & Naturalization Service. (A91-676-980)
Michael B. Schwartz, Rockville, Maryland, for Petitioner. Frank W. Hunger, Assistant Attorney General, Charles E. Pazar, Senior Litigation Counsel, Kristin A. Cabral, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
I.N.S.
AFFIRMED.
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
OPINION
PER CURIAM:
1
Enwelim Mekea ("Mekea") petitions for review of an order of the Board of Immigration Appeals ("the Board") dismissing his appeal. For the reasons set forth below, we affirm.
2
Mekea is a citizen of Nigeria. On September 23, 1992, Mekea pled guilty to two separate counts of misuse of a credit card. The first count concerned Mekea's use of another person's credit card to purchase a watch at a department store. The offense underlying the second count occurred within a few days of the first. That offense involved Mekea using a different credit card, also not his, to rent a car. Based on these convictions, the Immigration and Naturalization Service instituted deportation hearings pursuant to section 241(a)(2)(A)(ii) of the Immigration and Naturalization Act ("INA"), which provides for the deportation of aliens who are convicted of two or more crimes involving moral turpitude.
3
At his deportation hearing, Mekea contended that he was not deportable because his crimes occurred within a single scheme of criminal conduct. The Immigration Judge ("IJ"), however, found that Mekea had committed two separate offenses which were not part of a single scheme and, thus, Mekea was deportable under section 241(a)(2)(A)(ii) of the INA.
4
Mekea appealed the IJ's decision to the Board, contending that the crimes for which he was convicted arose out of a single scheme of criminal misconduct. The Board dismissed the appeal, concluding that the IJ properly found that Mekea was convicted of two crimes of moral turpitude not arising out of a single scheme.
5
Section 241(a)(2)(A)(ii) of the INA states that:
6
Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
7
8 U.S.C.A. § 1251(a)(2)(A)(ii) (West 1995). On appeal, Mekea claims that the Board's interpretation and application of the statutory language "not arising out of single scheme of criminal misconduct," was erroneous.
8
The Board of Immigration Appeals has interpreted the phrase "single scheme of criminal misconduct" as follows:
9
when an alien has performed an act which, in and of itself, constitutes a complete, individual and distinct crime then he becomes deportable when he again commits such an act, provided he is convicted of both. The fact that one may follow the other closely, even immediately, in point of time is of no moment. Equally immaterial is the fact that they may be similar in character, or that each distinct and separate crime is a part of an overall plan of criminal misconduct.
10
In re D, 5 I & N Dec. 728, 729 (BIA 1954). The Board reaffirmed its adherence to In re D, in In re Adetiba, Interim Decision 3177, 1992 WL 195812 (BIA May 22, 1992)). We have previously concluded that this interpretation of the statute by the Board is reasonable and must be followed. Akindemowo v. INS, 61 F.3d 282, 286 (4th Cir.1995).
11
Thus, applying the Board's interpretation to the facts of Mekea's case, it is clear that his crimes did not arise out a single scheme of criminal misconduct. Mekea's offenses occurred on two separate days. During each offense he was using a different credit card. Further, the offenses took place at two different businesses.
12
Accordingly, we affirm the Board's order. We dispense with argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 4, 2007
No. 06-15682 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00074-CR-T-27-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAUREEN SUE HILL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 4, 2007)
Before BLACK, CARNES and MARCUS, Circuit Judges
PER CURIAM:
Alec Fitzgerald Hall, appointed counsel for Laureen Sue Hill in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED, and Hill’s convictions and sentences
are AFFIRMED.
2
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338 F.Supp. 819 (1972)
Ernest Jackson COTTLE, Petitioner,
v.
Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent.
No. 70-986-Civ.-J.
United States District Court, M. D. Florida, Jacksonville Division.
February 28, 1972.
*820 Morton A. Kesler, Gutman & Kesler, Jacksonville, Fla., for petitioner.
Wallace E. Allbritton, Asst. Atty. Gen., Robert L. Shevin, Atty. Gen., Tallahassee, Fla., for respondent.
ORDER
McRAE, Chief Judge.
Petitioner Ernest Jackson Cottle was convicted of robbery in the Duval County Criminal Court of Record and, on September 14, 1956, sentenced to serve a term of twelve years in the state penitentiary. On November 28, 1961, petitioner was released on parole. For the next six years he managed to conduct himself in a fashion that the Florida Parole Commission found unobjectionable. In April of 1968, however, he was convicted of public drunkenness in violation of North Carolina law.[1] The maximum penalty for a first offense twenty days' imprisonment was imposed but suspended. A month and a half later, petitioner was again convicted of public drunkenness. Pursuant to sentence imposed for this second infraction, he served twenty days in jail although he faced a possible penalty of imprisonment for six months, having been convicted for a second time within a twelve months' period.[2] Insofar as appears from the record, at neither of the North Carolina trials was petitioner represented by counsel, nor was he informed that the state would provide counsel if he could not afford to retain counsel himself.
On August 2, 1968, the Florida Parole Commission conducted a hearing that resulted in the revocation of petitioner's parole effective retroactively to July 6, 1968. Petitioner challenges the revocation of his parole on two grounds, both of which were argued unsuccessfully in the state courts. The first is that he did not have counsel at the revocation hearing solely because he was unable to bear the expense of private counsel. He contends that this circumstance amounted to a denial of the equal protection of the laws.
A narrow application of the equal protection doctrine is of no avail to petitioner here because he waived the right to an attorney at the hearing, both orally and in writing. If a man of means had made such a waiver, he would be bound by it no less than an indigent citizen. But such an approach obscures the important fact that a man unable to obtain the services of a lawyer has no real choice, while an affluent citizen does.
The doctrine of estoppel addresses itself to those situations where a meaningful choice has been exercised voluntarily. It is grounded on considerations arising out of the public interest in avoiding repetitious litigation and in conclusively resolving disputes as promptly as may fairly be done. A litigant may not have it both ways where *821 the result is expense and delay for his adversary uncompensated by any significant enhancement of the likelihood of a sounder determination the second time around.
Here these considerations militate against an estoppel. There was considerable factual dispute at the revocation hearing. Trained advocacy has long been recognized as being of great importance in the fair resolution of conflicting factual claims.[3] Petitioner's agreement to proceed without counsel at the revocation hearing was acquiescence in the one manner of proceeding available to him. Petitioner waived nothing other than the right to retain private counsel and of the loss of this right he does not complain, since it was worthless to him.
The question remains whether the equal protection clause of the fourteenth amendment requires that indigent citizens be afforded the assistance of counsel at parole revocation proceedings when such assistance is available to those who can afford to pay an attorney. Distinctions in the law between rich and poor are generally the least likely to bear up under constitutional scrutiny, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and no compelling state interest[4] requires an exception in this case. Cf. Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L.Ed.2d 169 (1966).
In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Court held that a right to counsel existed as a matter of due process in a certain proceeding under Washington law, "whether it be labeled a revocation of probation or a deferred sentencing."[5] Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 258 (1967). In the Fifth Circuit, the rule is that the right to counsel in probation revocation proceedings exists only if sentencing takes place at the same time. Shaw v. Henderson, 430 F. 2d 1116 (5th Cir. 1970). Contra, Hewett v. State of North Carolina, 415 F.2d 1316 (4th Cir. 1969). This rule limits *822 Mempa v. Rhay to its facts and proceeds upon the rationale that the right to counsel extends only to "every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." Shaw v. Henderson, 430 F.2d at 1118.
Although the Fifth Circuit has not decided the question of whether due process requires that counsel be available at parole revocation hearings, Shaw v. Henderson strongly suggests that there is no constitutional right to counsel at parole revocation hearings. Other courts have reached this conclusion,[6] although the question is not a settled one and there is respectable authority for the contrary proposition.[7] But the question of whether due process requires that lawyers be allowed to participate in revocation proceedings as advocates for parolees is different from the equal protection problem now presented. The State of Florida permits representation by privately retained counsel at parole revocation hearings.[8] May it then deny representation to indigent convicts, even though assuming an extension of Shaw it need not permit the participation of counsel at all?
The Court finds persuasive the teaching of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) that
"there can be no equal justice where the kind of trial a man gets depends on the amount of money he has," (at 19, 76 S.Ct. at 591)
and holds that petitioner has a right to counsel coextensive with the right to counsel Florida law affords a person with means.[9] Of course the present case is a parole revocation proceeding whereas Mempa involved probation revocation, but a man's liberty is at stake no less than at the original trial.[10]
Petitioner's second contention is that his parole revocation cannot lawfully be predicated on the two North Carolina convictions for public drunkenness. At the trials on the North Carolina charges he was not represented by counsel because of his indigency.[11]
Relevant to this claim is the recent decision in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. There Mr. Justice Stewart, speaking for the Court, declared illegal the use of convictions judicially determined to have been procured in violation of the dictates of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), as the basis for sentencing in a later trial for a separate offense.
*823 Tucker differs from the present case in that the prior convictions were invalid in Tucker without reference to collateral consequences at the subsequent trial on different criminal charges. Here the North Carolina convictions are not invalid and present no constitutional problem[12] when viewed independently of their consequences in the parole revocation proceeding. But the consequences at a parole hearing have here proven very serious ones, much more serious than the "total potential penalty," Matthews v. State, 422 F.2d 1046 (5th Cir. 1970), necessary for the right to counsel to arise in a misdemeanor prosecution in this circuit.
The Court now holds not that the North Carolina convictions are tainted but that their use in Florida parole revocation proceedings must be foregone because petitioner was not represented at the trials eventuating in the convictions, solely because of his indigency.
It is, therefore,
ORDERED:
1. Petitioner shall be forthwith released on his own recognizance.
2. Unless a revocation hearing resulting in a finding of a violation takes place within 30 days' time, petitioner shall be re-admitted to parole on the same conditions as obtained before the revocation of August 6, 1968.
3. If a parole revocation hearing is held, petitioner shall be afforded the services of an attorney.
4. If such revocation hearing is held, the North Carolina convictions shall not be introduced into evidence, although the underlying circumstances may be established by independent evidence.
NOTES
[1] N.C.Gen.Stat. ch. 14, § 335.
[2] "Upon conviction for any subsequent offense ... within a 12-month period he shall be punished by a fine ... or by commitment ... for an indeterminate sentence of not ... more than six months." Id., Sec. (a).
[3] See Judge Sobeloff's concurrence in Jones v. Rivers, 338 F.2d 862 (4th Cir. 1964).
[4] Respondent has taken the position that the question of counsel at state parole revocation hearings is without the scope of federal power first by virtue of the tenth amendment, which begs the question, and secondly because, it is said, the equal protection clause of the fourteenth amendment does not extend to such proceedings. Certainly the fact that they are state proceedings is insufficient in itself to defeat federal power. Cf. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed. 2d 828 (1966). Nor does the additional fact that parole revocation is an exercise of state executive rather than judicial power or that parole is a matter of "grace" rather than a legal right in the strict sense serve to insulate these hearings from the commands of the fourteenth amendment. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The state interest here is control over the allocation of public moneys and it is an important one. But state control is very little circumscribed by a requirement that what is given to men of means must be given alike to those without, when the state remains free, under Shaw v. Henderson, 430 F.2d 1116 (5th Cir. 1970), to grant or, in order to conserve public moneys, withhold altogether the right to counsel at parole revocation hearings. See generally Railway Express Agency v. New York, 336 U.S. 106, 111-113, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (separate opinion of Mr. Justice Jackson).
[5] Washington law permits a trial court to defer imposition of sentence on a criminal defendant adjudged guilty, conditioned on satisfactory compliance with the terms of his probation. If probation should be revoked, the trial court must impose the maximum sentence since there is no discretion in this regard under Washington procedures. The trial judge is required, however, "to furnish the [Washington State Board of Prison Terms and Paroles] with a recommendation as to the length of time that the person should serve." Mempa v. Rhay, supra, 389 U.S. at 135, 88 S.Ct. at 257. When the authorities seek to revoke a man's probation, a fact-finding hearing must be held. If a violation of the terms of probation is established, the trial judge pronounces sentence at the same proceeding. Mempa v. Rhay holds that a criminal defendant has a right to counsel at this proceeding, at least if he has been adjudged guilty on the basis of a plea of guilty.
[6] Firkins v. Colorado, 434 F.2d 1232 (10th Cir. 1970) (per curiam); Gonzales v. Patterson, 370 F.2d 94 (10th Cir. 1966); Williams v. Dunbar, 377 F.2d 505 (9th Cir. 1967); Rose v. Haskins, 388 F.2d 91 (6th Cir.), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (6th Cir. 1968).
[7] United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079 (2nd Cir. 1971); Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969); Warren v. Michigan Parole Board, 23 Mich.App. 754, 179 N.W.2d 664 (Ct.App. 1970), appeal dismissed, 184 N.W.2d 457 (Mich.1971); People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S. 2d 449, 267 N.E.2d 238 (1970).
[8] Fla.Stat. § 947.23(1), F.S.A.
[9] Indigent Federal parolees have the right to counsel at revocation hearings by statute. 18 U.S.C. § 3006A(a) (3) (1970). Before this enactment, the same result was held constitutionally compelled. Earnest v. Willingham, 406 F.2d 681 (10th Cir. 1969). Contra, Jones v. Rivers, 338 F.2d 862 (4th Cir. 1965). But cf. Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969).
[10] When petitioner was released on parole, he had served five years and six weeks in prison. Revocation of his parole means incarceration for an additional six years and 46 weeks.
[11] As to petitioner's indigency, there is no dispute. On a silent record, we are unable to assume a waiver. Carnley v. Cochran, 369 U.S. 506, 513-516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
[12] At least no constitutional problem with the North Carolina convictions standing alone arises in the present case. The second conviction carried a possible penalty of six months. Under the Fifth Circuit rule, this conviction is invalid. Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965). In the Fourth Circuit, at this time, a challenge to the second conviction would be delayed pending a ruling by the Supreme Court in Argersinger v. Hamlin, 236 So.2d 422 (Fla.), cert. granted 401 U.S. 908, 91 S.Ct. 887, 27 L.Ed.2d 805 (1971).
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33 F.3d 49
Galanisv.U.S.
NO. 94-2097
United States Court of Appeals,Second Circuit.
July 25, 1994
1
Appeal From: S.D.N.Y.
2
AFFIRMED.
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541 U.S. 911
PONCE CASTELLON, AKA CASTELLON PONCEv.UNITED STATES.
No. 03-8758.
Supreme Court of United States.
March 8, 2004.
1
C. A. 9th Cir. Certiorari denied. Reported below: 80 Fed. Appx. 562.
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738 F.2d 440
Squire, In re
83-3536
United States Court of Appeals,Sixth Circuit.
6/7/84
N.D.Ohio
VACATED AND REMANDED
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972 So.2d 184 (2008)
MOSS
v.
MOSS.
No. 2D07-5562.
District Court of Appeal of Florida, Second District.
January 10, 2008.
Decision without published opinion. App. dismissed.
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294 F.Supp. 1327 (1969)
Elaine WENTZ, Plaintiff,
v.
ALBERTO CULVER COMPANY, a Delaware Corporation, Defendant.
No. 1382.
United States District Court D. Montana, Helena Division.
January 27, 1969.
Thomas H. Mahan, Helena, Mont., Roland V. Colgrove, Miles City, Mont., John Marriott Kline, L. Neil Axtell, Glasgow, Mont., for plaintiff.
Keller, Magnuson & Reynolds, Drake & DeGrandpre, Helena, Mont., Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for defendant.
RUSSELL E. SMITH, Chief Judge.
This opinion is concerned with the problem of relation back under Rule 15 (c) of the Rules of Civil Procedure as amended in 1966, and with the problem of jurisdiction arising upon the removal of a case to this court from the state court by a corporation nonexistent under the description of it used in the removal petition.
The facts are these: On January 31, 1966, plaintiff filed in the state court a complaint charging Alberto-Culver Company, an Illinois corporation (hereafter called the Illinois corporation) with negligence and breach of an implied warranty in connection with the manufacture and distribution of Alberto Culver *1328 VO-5 hair spray. At that time there was no such Illinois corporation. It had been dissolved in 1961 and its assets acquired by Alberto-Culver Company, a Delaware corporation (hereinafter called the Delaware corporation). That corporation first had notice of the action on February 15, 1966. Although service of summons was not made on anyone until May 20, 1966, the Delaware corporation did on March 5, 1966 advise Montana counsel that it was not an Illinois corporation, and directed Montana counsel to resist the jurisdiction of the Montana courts. On June 8, 1966 a petition for removal was filed in this court accompanied by a bond. The petition for removal alleged "the defendant Alberto-Culver Company, an Illinois corporation at the time this action was commenced, was and still is a citizen of the State of Illinois."[1] The petition contained no allegation as to the principal place of business of the petitioner. The bond was signed Alberto Culver Company, by its attorney, and by the United States Fidelity and Guaranty Company as surety. Thereafter a motion to quash service of summons was made in the name of the Illinois Corporation, and was granted. Another summons was served and another motion to quash made in the name of the Illinois corporation. This motion was denied. Finally on July 31, 1967, more than a year after the initial appearance, an answer was filed by the Illinois corporation, which alleged as a Third Defense that it had been dissolved in 1961 and that it "is not in existence and was not in existence at any of the times mentioned in plaintiff's Complaint." On March 5, 1968 plaintiff finally got around to filing a motion to amend the complaint to change the name of defendant from Alberto-Culver Company, an Illinois Company, to Alberto-Culver Company, a Delaware corporation. The proposed amended complaint was lodged with the clerk on March 29, 1968. Defendant resists the motion to amend the complaint on the ground that plaintiff's action is barred by Section 93-2605(3), R.C.M.1947, providing a three year limitation for tort actions. The facts relative to the accrual of the cause of action so far as they are disclosed by the proposed amended complaint are: Plaintiff purchased the hair spray February 1, 1963. She used it from February to October, 1963. At some undisclosed time she became ill.
Rule 15(c), Rules of Civil Procedure, as amended July 1, 1966, provides that an amendment changing parties may relate back to the filing of the complaint if the party to be brought in received notice of the "institution of the action" within the period provided by law for commencing the action. The Delaware corporation, although advised that plaintiff was claiming damages on account of her use of the spray, as early as 1964,[2] did not know of the institution of the action until February 15, 1966.
The motion to amend is granted and in any further problems relating to limitations the court will hold that January 31, 1966, the date upon which the complaint was filed in the state court, (one day less than three years after the purchase), is the crucial date. This result is not reached by an application of that portion of Rule 15(c) added by the 1966 amendment and could not be reached under that portion of the rule because notice of the existence of a claim is not "notice of the institution of the action." The court holds that there is a difference between correcting a misnomer and changing a party and that a misnomer may be corrected under the amendment power expressed in the first sentence of Rule 15(c). Prior to the *1329 amendment of Rule 15 in 1966, and when that rule contained only what is now the first sentence there was respectable authority[3] which permitted an amendment to correct a misnomer and which related it back to the filing of the complaint. In this case the corporate name of the defunct Illinois corporation and of the extant Delaware corporation was Alberto-Culver Company. Words designating the state of incorporation were not a part of either name. At the time the complaint was filed there was but one Alberto-Culver Company and it was the Delaware corporation. Before the complaint was filed correspondence addressed to Alberto-Culver Company reached the Delaware corporation which, through its agents, responded in the name of Alberto-Culver Company. The process served in tihs case reached the Delaware corporation whose agents, on at least one occasion, receipted for the complaint and summons with the signature "Alberto Culver Co."
Since the 1966 amendment did not change the first sentence of Rule 15(c), and since the purpose of the amendment was to liberalize rather than to restrict the right to amend, the vitality of the authority cited in footnote 3, supra, has not been diminished.[4]
In the course of reviewing the file in connection with the problems relating to the amendment, problems of jurisdiction, not mentioned by counsel, have come to the court's attention. As indicated, the petition for removal was ostensibly filed on behalf of the Illinois corporation which the court now knows to have been nonexistent. It is probable that the ghost of a dissolved corporation could not effectuate a removal. If it could, the petition was still defective in that it did not negate Montana as the principal place of business of the corporation.[5] A presence has been felt in this court; a petition was filed, a bond was filed, motions were made, stipulations were entered into. There was a viable presence here. That presence was of course the Delaware corporation. It is probable that at the time the removal petition was filed diversity of citizenship did exist, and that wherever the Delaware corporation's place of business, it was not Montana. Since the court has held that the Delaware corporation was the defendant from the beginning, it is consistent to give that corporation a right to amend[6] its petition for removal.
*1330 It is ordered that the defendant, Alberto-Culver Company, a Delaware corporation, shall, if so advised, file a petition to amend the petition for removal within twenty (20) days from the filing of this order. If such petition is not so filed the court will, after a hearing to determine the assessment of costs for improvident removal, remand this case to the state court. The order staying proceedings, except of course as to the matters required by this order, is continued in force.
NOTES
[1] The attorney who signed and verified the petition for removal is now dead and for that reason the court has not inquired into the propriety of what was done here.
[2] The Delaware Company had employed an investigator to do some investigation and negotiation. He sought information from the plaintiff concerning her claim. There was no deception employed by the investigator as to the identity of the defendant.
[3] County Theatre Co. v. Paramount Film Dist. Corp., 166 F.Supp. 221 (E.D.Pa. 1958), aff'd sub. nom. Shapiro v. Paramount Film Dist. Corp., 274 F.2d 743 (3 Cir. 1960).
Defendant relies upon the case of Martz v. Miller Brothers Company, 244 F.Supp. 246 (D.Del., 1966) which may be to the contrary. In that case there was a corporation in existence bearing the name used in the complaint sought to be amended not so here. In this case the misnomer was caused by the use of words which were not a part of the name of the defendant named in the complaint, or of the corporation sought to be suednot so in Martz. There the words which had to be changed were a part of the corporate names rather than words unnecessarily used to describe the corporation. If these differences do not fairly distinguish Martz, then the court here refuses to follow it.
[4] The court deems the correction of misnomers to be a matter of federal procedural law, and under the theory here adopted it has been unnecessary to determine when the cause of action accrued under state law. If the case should ultimately be decided in the state court and if the state court determines as a matter of its own procedure that a different rule as to misnomers should apply, the state court may be faced with the problem under its own Rule 15 of whether the cause of action accrued before the Delaware corporation had knowledge of the institution of the action. If so, it will be free to choose from among the several alternatives (See 11 A.L.R.2d 277) unembarrassed by any opinion of this court.
[5] 1A Moore's Federal Practice, 2d ed., pp. 1203-1204.
[6] Where jurisdiction did in fact exist, this may be done. Firemen's Ins. Co. of Newark, N. J. v. Robbins Coal Co., 288 F.2d 349 (5 Cir. 1961); 1A Moore's Federal Practice 2nd ed., p. 317.
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382 Mich. 559 (1969)
170 N.W.2d 842
PEOPLE
v.
OLARY.
Calendar No. 20, Docket No. 52,018.
Supreme Court of Michigan.
Decided October 6, 1969.
*562 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Walter W. Turton, Prosecuting Attorney, for the people.
William R. Walsh, Jr., for defendant.
DETHMERS, J.
Defendant was convicted by jury verdict in a justice of the peace court of the crime of cruelty to animals in violation of CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161). He was there sentenced to 2 years' probation and to pay fine and costs of $79.75. He took an appeal to circuit court and, as provided by law, had a trial de novo there before a jury. A verdict of guilty was again returned and the circuit court imposed a sentence to serve 75 days in the county jail and pay costs of $75. On appeal therefrom to the Court of Appeals, it affirmed the circuit court judgment and sentence. From that, defendant's appeal is here on leave granted. 381 Mich 777.
Two questions are raised on this appeal by defendant: (1) whether the proofs sustain a verdict of guilty of cruelty to animals under the statute and, particularly, whether proof of failure to provide medical treatment for cows, as needed, establishes such guilt; (2) whether it was lawful for the circuit court, upon conviction at the de novo proceedings in *563 that court, to impose a greater sentence than that previously pronounced by the justice of the peace.
The statute making cruelty to animals a crime reads as follows:
"Whoever overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, or causes or procures to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated, or cruelly killed, any animal, and whoever having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same, or wilfully fails to provide the same with proper food, drink, shelter, or protection from the weather, shall, for every such offense, be punished by imprisonment in jail not exceeding 3 months or by fine not exceeding 100 dollars, or by both such fine and imprisonment."
This is a misdemeanor.
The warrant charged defendant as follows:
"Count 2. That George Olary, late of the township of Emmett, county of St. Clair and State of Michigan, being the owner of a herd of cattle inflicted unnecessary cruelty upon the same, and wilfully failed to provide the same with proper food, drink, shelter or protection from the weather, contrary to CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161)."
Witnesses for the people at the circuit trial were an inspector for the humane society, a deputy sheriff, and a veterinarian. They saw a lame, injured, disabled, and emaciated cow on defendant's farm that appeared to have been beaten and had a puncture wound of the stifle joint and other wounds that looked like they had been caused by forceful pressure on the cow's side and back with a pitchfork. *564 An abscess had formed at one puncture wound which the veterinarian estimated had been developing for a period of from 30 to 45 days. Witnesses also saw, lying in the pasture there, the emaciated bodies of 2 dead cows, partially decayed, which had been beaten and abused, covered with abrasions and dead for some length of time. They talked with defendant at the time of their visit at his farm and he told them that the cows had been well just a short time before. The witnesses said that the evidences were such that this could not have been true. He also told them, when asked why the cattle were in the shape they were in, that the cows had been fighting and that two had died but that he did not know the cause of death. Defendant testified at trial, however, that enemies of his had beaten and injured the cows. He said that he had not called a veterinarian nor treated or caused the injured cows to be treated nor placed in the barn. He just left them in the pasture. It did appear that there was ample pasturage and water for these and defendant's other cattle.
Defendant, on this appeal, argues that there was no evidence that defendant had caused the injuries to the cows, that the Court of Appeals has upheld the conviction on the theory that, regardless of who inflicted the injuries, defendant was guilty of cruelty to animals by his inattention to the condition of the animals and failure to provide them with medical treatment, but that the statute does not, in its definition of cruelty, include failure to give medical attention.
Defendant also says that to hold defendant's inattention to constitute a violation of the statute would amount to permitting a criminal conviction for action or inaction which an advance reading of the statute would not have informed defendant was a criminal offense.
*565 We think, however, that the record, as briefly sketched above, is ample to support a finding of cruelty consisting of conduct which defendant, a farmer, could well have realized was cruel and which the jurors readily recognized as such. We think the conviction lawful and proper.
Defendant had a right to take an appeal from justice to circuit court. Such appeal calls for trial de novo in the circuit court. This the defendant had before a second jury. That appeal amounted to a vacating and superseding of the judgment appealed from and placed the case within the circuit court jurisdiction to be proceeded in as if it were an original proceeding in that court. People v. Underwood (1920), 209 Mich 348. As said in People v. Powers (1935), 272 Mich 303, about an appeal from justice to circuit court in a criminal case:
"The defendant, however, had a right to appeal * * * and, when he did so, he conferred jurisdiction upon the circuit court to try the case anew and render judgment thereon as provided for in the statute."
The sentence here imposed in circuit court was within the limits provided in the governing statute above quoted. The fact of a lesser previous sentence by the justice of the peace, which had been vacated by the appeal to the circuit court, in no way limited the circuit court powers to fix sentence at any amount permitted by that statute.
In this connection we are aware of the decisions and opinions handed down by the Supreme Court of the United States on June 23, 1969, in the combined cases of North Carolina v. Pearce and Simpson v. Rice (1969), 395 US 711 (89 S Ct 2072, 23 L Ed 2d 656). These are State cases in which convictions in trial courts were later set aside by State appellate courts because they were held to have been the *566 product, in part, of procedures which represented denial of Federal constitutional rights. Accordingly, the cases were remanded to the trial courts from which they had come, for retrial, and, upon second convictions, the original sentencing trial courts imposed harsher sentences than the first. While it appears that a majority of the Supreme Court did not view the increase of sentence as amounting to double jeopardy or denial of equal protection, they did see, in such situation, the possibility of violation of due process of law. It is said in one of the opinions that for a trial court to follow an announced practice of imposing heavier sentence as punishment for defendant's having pursued his constitutional rights and getting his original conviction set aside because of constitutional or even other errors, would render an appeal on the part of the accused hazardous and that such course would be vindictive and unconstitutional. A court may not place such a price on an appeal. The opinion goes on to say, however, that the prevalent modern philosophy of penology is that the punishment should fit the offender and not merely the crime. Then the rather amazing requirement seems to be expressed that, if a greater sentence is imposed after the second conviction, the sentencing judge must cause to be placed in the record his reasons for so doing, based on conduct of the defendant occurring after the first sentencing or, at least, on subsequent information coming to the judge after the first sentence.
Whatever may be thought of such a holding and requirement, especially in those cases in which the judge could have had no knowledge, at time of the second sentence, that such a requirement was later to be announced by the United States Supreme Court, at all events it has no application here. The differences *567 between the cases under consideration by that court and the instant one are numerous. In the first place, the cited cases are those in which the first convictions were improperly obtained, reversed on appeal for constitutional or other error, and then remanded for a second trial in the same court. There it could be said that if defendant had been properly tried the first time and convicted, his sentence undoubtedly would have been the same as was imposed on him and that, therefore, with errors and violations of his constitutional rights having occurred which contributed to his first conviction, the harsher second sentence would amount to penalizing him for appealing and seeking a fair and valid trial. That this could give rise to a question of whether defendant had been accorded due process is evident. Here, under Michigan procedure then in effect, no such thing has happened. Defendant was convicted in justice court, took an appeal as of right to circuit court in which the question of possible errors in the first trial is not considered, but a trial de novo, without regard to the first, is accorded defendant. He sought de novo proceedings in circuit court and got it, both as to trial and sentence. Second, the original sentence was imposed by a justice of the peace, not required to be legally trained, and the second sentence was by a circuit judge, a duly licensed lawyer, after report to him, as provided by statute, by the probation officer as to defendant's background, record and attitude, to enable the circuit judge to fit the punishment to the offender. This benefit the justice of the peace did not have. An understanding of all these circumstances and applicable Michigan practice and procedure makes it clear that nothing in the nature of judicial vindictiveness or an attempt to punish for the temerity of taking an appeal and establishing error in the first trial is involved in this *568 case. Even in cases of felonies, in which jurisdiction to try rests only with the circuit court and the first trial occurs there, the judge is not required to incorporate in the records his reasons for meting out the punishment he did, nor is that the practice in this State. There was, then, no reason here for the circuit judge to place in the record his reason for a different second sentence because he had not imposed the first one, but was merely doing, within the limits of the statute, what he, as a law-trained judge with the benefit of probation officer's report, thought just and proper. Neither this Court nor any other has occasion to call that into question.
Affirmed.
T.E. BRENNAN, C.J., and KELLY, BLACK, and ADAMS, JJ., concurred with DETHMERS, J.
T.G. KAVANAGH, J. (dissenting).
This is not a pleasant case. Several of his cows were cruelly injured and died, and the 66-year-old defendant's bizarre explanation that gangsters in the employ of his divorced wife inflicted the injuries is incredible.
It would be more comfortable to affirm this misdemeanor conviction and righteously approve the $75 cost exaction and the 75-day sentence.
But the point of law raised by this appeal is more important than our sensibilities.
At the close of the people's case the defense moved for dismissal of the charges on the ground that the record contained no evidence of the defendant's treatment of the cows and hence no proof of cruelty.
The trial court ruled that since the defendant was the owner of the cows and since the injuries to the cows were evident to the naked eye and the defendant must have seen this condition, it was a reasonable inference that he was responsible for not calling *569 a doctor for the injured cows. The court then ruled that it was "inflicting unnecessary cruelty when you see a cow obviously suffering from open wounds and don't either put her out of her misery or call the doctor to do so or attempt to treat her" and denied the motion.
A majority of the Court of Appeals panel held the trial judge thereby committed no error. (10 Mich App 640, 643.) We do not agree.
We think the dissent of Judge LEVIN[1] adequately and correctly states the law. We adopt it as our own. The quoted statute[2] does not impose a duty on the owner or custodian of animals to provide medical attention for them under pain of conviction for cruelty.
We would hold that the trial court should have dismissed the charges at the close of the people's case.
In view of our holding on this question we would deem it unnecessary to consider the other question raised by the appellant.
We would set aside the conviction and order defendant discharged.
T.M. KAVANAGH, J., concurred with T.G. KAVANAGH, J.
NOTES
[1] 10 Mich App 640, 644-650.
[2] CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161).
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180 F.2d 551
PENWELL et al.v.NEWLAND et al.
No. 12271.
United States Court of Appeals Ninth Circuit.
February 21, 1950.
Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, George D. Webster, Francis W. Sams and L. W. Post, Washington, D. C., John B. Tansil, U. S. Atty., Billings, Mont., Harlow Pease, Asst. U. S. Atty., Butte, Mont., and Emmett C. Angland, Asst. U. S. Atty., Great Falls, Mont., for appellants.
T. J. Davis and L. C. Myers, Butte, Montana, for appellees.
January 19, 1950. Appeal dismissed without opinion.
Upon Petition for Rehearing on the order dismissing the appeal, because not taken by the petitioners.
Before DENMAN, Chief Judge, BONE, Circuit Judge, and McCORMICK, District Judge.
DENMAN, Chief Judge.
1
In this case appellees' first act after receipt of a purported notice of appeal was to claim in their reply brief that this court is without jurisdiction to entertain it. At the same time, they filed a motion to dismiss the appeal. Petitioners filed an opposition citing two irrelevant cases not mentioned in the petition for rehearing. They also moved to substitute in the notice of appeal the names of the petitioners for that of the dead collector. Their more comprehensive petition for rehearing has lead to this opinion, deemed our opinion on our order dismissing the appeal.
2
The grounds stated for the motion to dismiss are (a) the appeal had not been taken by any party to the suit as required by Federal Rules of Civil Procedure, Rule 73(a), 28 U.S.C.A., providing that "a party may appeal from a judgment by filing with the district court a notice of appeal," and (b) that the notice of appeal does not specify the parties taking the appeal as required by Rule 73(b), providing "The notice of appeal shall specify the parties taking the appeal".
3
The purported appellants concede that neither requirement of Rule 73 was satisfied, the notice having been filed by Lewis Penwell, individually and as Collector of Internal Revenue, who had brought the suit but who had ceased to be a party by his death, the substitution of the executors of his estate as parties having been made over four months before the appeal was taken.
4
One of the contentions of the executors seems to be that appellees are estopped to raise the question of jurisdiction by failing to move at once to dismiss the appeal, pointing out that they would have been saved the cost of printing the record and opening brief here. There is no merit in this contention since jurisdiction cannot be created by estoppel. We regard the appellees' first required action, their reply brief and accompanying motion to dismiss, as action within proper time to raise the question then shown on the record.
5
The judgment was entered on February 7, 1949. The purported notice of appeal was filed on April 6, 1949, but two days before the time to appeal expired. Nothing further was done until May 13, 1949, when the executors obtained an ex parte order extending for 30 days the time to docket the appeal, followed by a second ex parte order extending that time to June 14, 1949. They designated the entire record. As stated, the first action required of appellees was the filing of their reply brief, in which the jurisdictional question is raised.
6
It is also contended that the notice of appeal is valid because it advised appellees that somebody wanted to appeal from the judgment. So this would be true if the appeal had been taken in the name of Bill Jones or the Mayor of Oshkosh. The privilege of appeal is given only to a party to the action, not to a dead man no longer such a party.
7
The executors contend that the Fifth Circuit has held contra to our decision in Crump v. Hill, 104 F.2d 36, 37. We do not agree. There the appellee waived notice of appeal, appeared as a party to the appeal and designated his portion of the record within the time for the taking of the appeal. Here there was no waiver of notice and no appearance by appellees until long after the time for appeal had expired and then to raise the jurisdictional question.
8
Nor is there anything contra in Martin v. Clarke, 7 Cir., 105 F.2d 685, 686, 124 A.L.R. 497. There the notice of appeal filed by the appellant was held within Rule 73(b). It named the judgment appealed from but misdescribed it as being in favor of appellant instead of adverse to him. All Rule 73(b) requires is that the notice of appeal "shall designate the judgment or part thereof appealed from". The judgment was designated. That it was misdescribed is irrelevant technical error.
9
In Reconstruction Finance Corp. v. Prudence Securities Advisory Group, 311 U.S. 579, 61 S.Ct. 331, 95 L.Ed. 364, a Chandler Act 11 U.S.C.A. § 1 et seq., case, the petition for appeal was filed in the district court instead of in the circuit court of appeals, because of a prior misleading decision of the court of appeals. The court held that the court of appeals could allow the appeal because of the uncertainty of the law, but stated, 311 U.S. at page 582, 61 S.Ct. at page 333: "Normally the Circuit Court of Appeals would be wholly justified in treating the mere filing of a notice of appeal in the District Court as insufficient." Cf. Cutting v. Bullerdick, 9 Cir. 1950, 178 F.2d 774.
10
Here there is no uncertainty as to the law. "Normally" an appeal can be taken only by a party to the action. Under the rule of liberal construction, the taking of an appeal by a non-existent person is not an unsubstantial "procedural irregularity," such as considered in the Reconstruction Finance Co. case, supra. Nor is it the "harmless error" of Federal Rules of Civil Procedure 61 and of Commercial Banking Corp. v. Martel, 2 Cir., 123 F.2d 846, 847 and University City v. Home, etc. Insurance Co., 8 Cir., 114 F.2d 288, 295, also cited by petitioner.
11
The petition for rehearing is denied.
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12 Cal.App.3d 732 (1970)
90 Cal. Rptr. 783
THE PEOPLE, Plaintiff and Respondent,
v.
THOMAS CURLEY, Defendant and Appellant.
Docket No. 16882.
Court of Appeals of California, Second District, Division Two.
November 6, 1970.
*734 COUNSEL
Frank P. Rosen, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Blanche C. Bersch, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
FLEMING, J.
Defendant appeals his conviction for arson (Pen. Code. § 448a),[1] arguing insufficiency of the evidence to support the finding of guilt, improper admission of evidence seized from his automobile, and improper admission of his statements to the police at the hospital.
During the early morning hours of 25 August 1968 a fire of incendiary origin largely destroyed a restaurant in Covina. Partially filled containers of gasoline were found inside the building, and an empty container with volatile fractions which resembled gasoline was found outside the rear door. *735 A trail of burnt cloth approximately 50 feet long led from the rear door to a parking space behind the building.
An hour or so after the discovery of the fire the police learned that defendant, a part-time employee of the restaurant, had just been admitted to a hospital for treatment for severe fire burns. Later they were told by defendant's brother that defendant had returned home early that morning, naked, and suffering from fire burns over much of his body. Despite the obvious severity of the burns defendant and his brother attempted to treat his condition with ice water baths and applications of sunburn spray purchased from a 24-hour grocery store.
That same morning the police found a piece of burnt cloth in defendant's automobile, cloth which had the identical thread count and could have come from the same source as the burnt cloth at the scene of the fire. The police subsequently discovered that two days before the fire defendant had purchased 3 gallons of gasoline and taken it away in 1-gallon containers, a fact he initially denied and then later admitted.
A police officer who accompanied defendant to the hospital in the ambulance asked him "how he had gotten burnt. He said up fighting the fire. I referred to the fire up in the mountains and he says yes." The following day defendant was interviewed by officers investigating the restaurant fire. The interview was brief, and defendant's only statement was that he had gotten his burns in the Fish Canyon area. A month later defendant, after having been advised of his constitutional rights, gave an extensive statement to the police setting forth the basic theme of his defense, i.e., he had not been fighting a mountain fire but had been surreptitiously hunting at night in the area of the fire and had avoided established roadblocks to do so.
At his trial defendant testified he had devised a method for simultaneously holding a flashlight and a rifle in such a way that he could shoot rabbits at night. While thus engaged he had slipped on shale and rolled through a wall of flame which rose 50 feet into the air. Thereafter, he tore off his burning clothes, walked two to three miles to his automobile, and then drove several miles to his residence without stopping to seek medical assistance or first aid.
On rebuttal, an expert testified that the combustible material in the San Gabriel mountain range was capable of producing temperatures above 2,500 degrees, that if flames were shooting up in the manner described by defendant it would be highly unlikely that anyone could pass through them and survive. A deputy sheriff testified that at the time of the mountain fire he had been in charge of a command post which blocked the only road up Fish Canyon and at no time did he see defendant in the area.
*736 I
(1) In weighing the evidence the trial judge rejected defendant's version of the manner in which he sustained his extensive burns, stating "I find his story incredible and do not accept it." We agree with this conclusion of the trial judge, and we consider the evidence more than sufficient to support the finding of guilt.
II
The events relating to the discovery and seizure of the burnt cloth from defendant's automobile unfolded in the following order:
5:03 a.m. Restaurant premises discovered engulfed in flames.
5:30 a.m. Assistant Fire Chief Johnson, an expert in arson, arrived on the scene. He found partially empty containers of gasoline on the premises and he noted that the rear door was unlocked and ajar and its frame had no pry marks. From these and other observations he concluded that the fire was of incendiary origin.
6:30 a.m. Chief Johnson learned that defendant, a part-time employee of the restaurant, had just been taken to the hospital suffering from severe fire burns on his arms, legs, and torso.
9 a.m. At defendant's residence Chief Johnson and two police officers talked to defendant's brother, who said that defendant had driven home about 6 a.m. after having been burned in a mountain fire. Defendant's automobile was parked in the backyard, and the brother gave the officers permission to look at it. When Chief Johnson looked inside the automobile's window on the driver's side he saw what appeared to be a piece of burnt cloth. He took this burnt cloth, returned to the restaurant premises, and there found a trail of apparently the same material leading from the rear door of the restaurant to a parking space 50 feet away. A subsequent comparison of the burnt cloth found in the automobile with that found at the scene of the fire showed that both materials had the same thread count.
Clearly, from the outset of their investigation the authorities had reasonable cause to believe that arson had been committed. While there was no initial indication of the identity of the arsonist, when the investigating officers learned that a part-time employee of the restaurant had been severely burned that same morning he became an obvious subject for their investigation. The officers' interest in his activities was intensified when they learned he had driven home about 6 a.m. and told his brother he had been burned in a fire. Chief Johnson sought and received permission from the brother, a resident of the premises, to enter the backyard in order *737 to look at defendant's automobile. Thus, when he looked in the window of the automobile he was doing so with the permission of its temporary custodian from a place in which he was entitled to be. (People v. Smith, 63 Cal.2d 779, 799-800 [48 Cal. Rptr. 382, 409 P.2d 222].) At that time Chief Johnson was neither trespassing nor engaging in an unlawful search, and unquestionably he was entitled to testify about what he had seen in plain view through the window. (People v. Roberts, 47 Cal.2d 374, 380 [303 P.2d 721]; People v. West, 144 Cal. App.2d 214, 219-220 [300 P.2d 729]; Ker v. California, 374 U.S. 23, 43 [10 L.Ed.2d 726, 743, 83 S.Ct. 1623].)
(2) The problem of seizure arises because after Chief Johnson saw the burnt cloth he took it away without the permission of its owner or custodian. The legal question is whether he was entitled to seize without warrant an item which did not fall within any of the three categories of property subject to seizure at common law (fruits of crime, instruments of crime, and contraband) and which he had not obtained in the course of a lawful search or lawful arrest. The item seized is best described as potential evidence, and the issue, broadly put, is whether a peace officer[2] in the course of an investigation can seize without warrant potential evidence which he believes will assist in the solution and prosecution of crime. If he can, what circumstances entitle him to do so?
There appears a dearth of precedent on the point, undoubtedly because prior to the decisions in People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513], and Mapp v. Ohio (1961) 367 U.S. 643, 655-657 [6 L.Ed.2d 1081, 1089-1091, 81 S.Ct. 1684, 84 A.L.R.2d 933], evidence was legally admissible regardless of the methods by which obtained. This was the rule at common law and is still the rule in England.[3] Even after Cahan most warrantless seizures litigated in the courts were connected with a search or an arrest, and the courts tended to focus their attention exclusively *738 on the validity of the search or arrest and treat the seizure as a wholly dependent question. Because of the absence of direct precedent, we examine the question of authority to seize in some detail.
Seizure Under the Fourth Amendment
Our starting point in the consideration of seizure without warrant is the Fourth Amendment to the federal Constitution (substantially incorporated in the California Constitution as article I, section 19): "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." While this amendment places general limitations on the seizure of persons, papers, effects, and things, it does not prohibit all seizures, only those which are unreasonable, and we must therefore explore the content of reasonableness as it relates to a seizure of potential evidence.
Our first question is whether under the Fourth Amendment any warrantless seizure of potential evidence, apart from lawful search or lawful arrest, is permissible. On this point the key case is Warden v. Hayden, 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642]. There, the police learned that an armed robbery had just taken place and a suspect gone inside a certain house. Officers entered the house to search for the suspect and in due course found him in an upstairs bedroom. Meanwhile an officer had been searching the cellar, and he found in a washing machine a jacket and trousers of the type said to have been worn by the robber. The police seized these clothes and used them as evidence at the trial. Since the seizure was not directly incident to the suspect's arrest and since the clothes could not be classified as fruits of crime, instruments of crime, or contraband, the use of the clothes as evidence raised the question whether the prohibition against a seizure of mere evidence, formulated in Gouled v. United States, 255 U.S. 298 [65 L.Ed. 647, 41 S.Ct. 261], was still valid. The court overruled Gouled, rejected as discredited the premise that the law of property exclusively governs the validity of a seizure, and concluded that nothing in the Fourth Amendment supported a distinction between seizure of mere evidence on the one hand and seizure of fruits, instruments, or contraband on the other. The court then introduced two new elements for use in the evaluation of a particular search and seizure. The first was a person's reasonable expectation of privacy. Since in the case before it police entry into the house had been justified by exigent circumstances, specifically, hot pursuit of a suspect, reasonable expectation of privacy did not foreclose *739 the police from conducting their search without warrant. The second new element was recognition of a governmental interest in seizing evidence in order to solve crime and apprehend and convict criminals. In outlining the boundaries of that interest, the court said: "There must, of course, be a nexus automatically provided in the case of fruits, instrumentalities or contraband between the item to be seized and criminal behavior. Thus in the case of `mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. Cf. Kremen v. United States, 353 U.S. 346 [1 L.Ed.2d 876, 77 S.Ct. 828]. But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit." (387 U.S. at p. 307 [18 L.Ed.2d at p. 792]; italics added.)
Two points should be noted from the case. First, the court entered a final decree of divorce between the law of property and the law of seizure, and the rules of the former no longer wholly determine the validity of the latter. Second, the seizure was upheld on the specific ground that the seized items qualified as evidence to aid in the prosecution of a crime.
Further comment on the right to seize evidence without a warrant is found in Harris v. United States (1968) 390 U.S. 234 [19 L.Ed.2d 1067, 88 S.Ct. 992]. A police officer was searching an impounded automobile held as evidence of a robbery, and in the course of making the automobile secure for purposes of the impound (tagging it, locking it, putting up the windows, etc.) he found a registration card which belonged to the victim of the robbery. Petitioner contended that the registration card had been illegally seized during a warrantless search of his automobile. In rejecting petitioner's claim of illegal search and seizure the court said the registration card had not been discovered as the result of any illegal search but had been seen by the officer in plain view while he was taking measures to protect the car during its stay in police custody. The court then declared, "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." (390 U.S. at p. 236 [19 L.Ed.2d at p. 1069].) In support of its declaration the court cited Ker v. California (1963) 374 U.S. 23, 42-43 [10 L.Ed.2d 726, 743-744, 83 S.Ct. 1623]; United States v. Lee (1927) 274 U.S. 559 [71 L.Ed. 1202, 47 S.Ct. 746], and Hester v. United States (1924) 265 U.S. 57 [68 L.Ed. 898, 44 S.Ct. 445]. None of these cases precisely supports a seizure of objects which are mere evidence, since Ker, Lee, and Hester each dealt with a seizure of contraband (narcotics, bootleg liquor, and moonshine). And since the item *740 seized in Harris (the registration card) was stolen property and the items in Hayden were seized during hot pursuit, it can be argued that factually none of these cases involved any departure from previous limitations on seizure without warrant.
Yet in fact the court has broken new ground. This became apparent in Frazier v. Cupp, 394 U.S. 731 [22 L.Ed.2d 684, 89 S.Ct. 1420], where the police arrested a codefendant and asked for and obtained permission to search a duffel bag. During the search the officers came upon petitioner's clothing and seized it. The court said that since the codefendant was a joint user of the duffel bag he clearly had authority to consent to its search. "The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court's past decisions, they were clearly permitted to seize it. Harris v. United States, 390 U.S. 234 [19 L.Ed.2d 1067, 88 S.Ct. 992] (1968); Warden v. Hayden, 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642] (1967)." (394 U.S. p. 740 [22 L.Ed.2d p. 693].)
None of the rather cryptic statements on seizure found in Hayden, Harris, and Frazier, undertook any extensive analysis of the elements involved in search or seizure without warrant, and for such an analysis we turn to the dissenting opinion of Frankfurter, J., in United States v. Rabinowitz, 339 U.S. 56, 68 [94 L.Ed. 653, 661, 70 S.Ct. 430], a case of search incident to arrest. In that opinion Frankfurter argued that search incident to arrest should be limited to the immediate area over which the arrested person has control and to those effects which may fairly be deemed an extension of his person, an argument which the court has since adopted in Chimel v. California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034]. Frankfurter began his consideration of search with the premise that every search is unreasonable unless authorized by a warrant issued on probable cause or unless justified by absolute necessity. He then inquired into the nature of necessity and answered his own query by furnishing two examples. First, the search of an arrested person. Such a search is necessary and therefore permissible for two reasons: first, to protect the arresting officer from harm and deprive the arrested person of potential means of escape; second, to prevent destruction of evidence by the arrested person. (339 U.S. at p. 72 [94 L.Ed. at p. 663].) In this example it is apparent that necessity is tied to the factor of preservation, i.e., a search is justifiable to keep matters as they are. Frankfurter would confine such a search to the strict requirements of the situation. Frankfurter's second example of necessity is the search without warrant of moving vehicles and vessels. Such warrantless searches are sanctioned, he declared, because it is not practicable to secure a warrant to search a vehicle which can be moved out of the jurisdiction before the warrant can issue. The search of moving vehicles and vessels *741 is therefore justified by a lack of time to secure a warrant. Here necessity is tied to the factor of time. In the second example the searching officer must be able to show the court probable cause for acting as he did. (339 U.S. at p. 73 [94 L.Ed. at p. 664].) During the course of his opinion Frankfurter suggested a third exception to the requirement of a warrant for search and seizure, this one specifically relating to seizure in connection with an arrest. He referred to the right to seize instruments or fruits of crime which are in open view at the time of an arrest, but he added the caution that the right to seize these items does not carry a right to search for them. (339 U.S. at p. 75 [94 L.Ed. at p. 665].)
From this opinion we conclude that search and seizure without a warrant may be justified by necessity, that necessity comprehends the timely preservation of evidence from destruction, that under some circumstances a seizure of items in plain sight may be appropriate. But this authority to search and seize is subject to the requirement that the officer who takes such action be able to show a court probable cause for what he has done.
This same recognition of necessity as a factor which can justify search and seizure without a warrant appears in Ker v. California, 374 U.S. 23, 42 [10 L.Ed.2d 726, 743, 83 S.Ct. 1623]; and in McDonald v. United States, 335 U.S. 451, 454, 457 [93 L.Ed. 153, 157, 159, 69 S.Ct. 191], where in a concurring opinion Jackson suggests that necessity is related to the gravity of the offense thought to be in progress. The principle expressed in these cases is pragmatic and utilitarian. A search and seizure without a warrant will be upheld when required by absolute necessity or, in the language of the cases, by exigent circumstances, by exceptional circumstances, in an emergency, where there are compelling reasons, or when time is of the essence. (Ker v. California, supra; McDonald v. United States, supra; United States v. Rabinowitz, supra (dissent).)
One Supreme Court case directly in point on warrantless seizure dissociated from search is Zap v. United States, 328 U.S. 624 [90 L.Ed. 1477, 66 S.Ct. 1277]. There, a government contractor under a cost-plus contract agreed to permit government inspection and audit of his books. While government agents were engaged in such an audit they found a check which suggested fraud in support of a voucher for work under the contract. The agents took the check and later used it as evidence in the contractor's prosecution for fraud. The court treated the case as one which involved a warrantless seizure of the check by government agents lawfully engaged in an authorized inspection of the contractor's records. Their inspection was made during regular hours of business, with the cooperation of the contractor's staff, and without the use of threats or force. "The agents, therefore, were lawfully on the premises. They obtained by lawful means access *742 to the documents. That much at least was granted by the contractual agreement for inspection. They were not trespassers. They did not obtain access by force, fraud, or trickery. Thus the knowledge they acquired concerning petitioner's conduct under the contract with the government was lawfully obtained." (328 U.S. at p. 629 [90 L.Ed. at p. 1482].) From these circumstances a majority of the court concluded that the seizure was lawful and that no wrongdoing was involved in taking the check away from the contractor's place of business for potential use as evidence. "Though consent to the inspection did not include consent to the taking of the check, there was no wrongdoing in the method by which the incriminating evidence was obtained." (P. 630 [90 L.Ed. p. 1483].) The court declared that objections to the procedure followed by the agents were purely technical and concluded that to reverse the judgment would "exalt a technicality to constitutional levels." This reasoning of the majority did not persuade the dissenters, for whom Frankfurter argued that the Constitution is directed against both illegal searches and illegal seizures and that the legality of the search did not automatically legalize the accompanying seizure. (P. 632 [90 L.Ed. p. 1484].)
State court opinions which reject the mere-evidence rule have discussed some of the elements relevant to our inquiry. In State v. Bisaccia, 45 N.J. 504 [213 A.2d 185], the Supreme Court of New Jersey rejected a property test to determine the validity or invalidity of a search or seizure. "If the subject is examined upon principle alone, the property thesis cannot explain government's authority to search. We know that what is seized is in fact taken primarily to be used against the accused rather than to deprive him of some property he ought not to have or to gratify the right of another to acquire the article for its intrinsic worth. When the State searches for a bloodied ice pick, it is not at all interested in its penny value; the State could buy dozens of new ones at a fraction of the cost. Moreover, the question whether the article seized is the fruit of crime, or is contraband, or has been forfeited by evil use, would frequently depend upon the outcome of the very proceeding in which it is offered to prove guilt.... It would demean the law to vindicate a search and seizure in terms of a proprietary interest when everyone knows the quest is usually for evidence of guilt and nothing else." (213 A.2d at p. 187.) The New Jersey court then declared that the goal of the Fourth Amendment is to strike a fair balance between a man's privacy in his possessions and the government's duty to protect its citizens from criminal conduct. (Pp. 188, 192.) So long as the evils of the general warrant and of unrestricted invasion into privacy are avoided, the government may search and seize for the avowed purpose of finding evidence with which to convict. "... the Fourth Amendment contemplates that things may be seized for their inculpatory value alone and *743 that a search to that end is valid, so long as it is not otherwise unreasonable...." (P. 193.)
Many of these same conclusions have been adopted by the California Supreme Court. In People v. Thayer, 63 Cal.2d 635 [47 Cal. Rptr. 780, 408 P.2d 108], the court, following the precedent of New Jersey, likewise abandoned the mere-evidence rule and declared that property concepts would no longer exclusively determine the validity of searches and seizures. "The modern view ... is that the exclusionary rules of evidence exist primarily to protect personal rights rather than property interests and that common-law property concepts are usually irrelevant." (63 Cal.2d at pp. 637-638.) This same hypothesis was further developed in People v. Edwards, 71 Cal.2d 1096, 1100 [80 Cal. Rptr. 633, 458 P.2d 713], a case which invalidated a warrantless search of an outside trash container correctly suspected of use as a hiding place for marijuana. If property concepts still controlled search and seizure, the contents of the trash container would be classified as abandoned property and become subject to examination and seizure. (Hester v. United States, 265 U.S. 57 [68 L.Ed. 898, 44 S.Ct. 445].) But the court rejected the law of property as the sole standard with which to measure the validity of the particular search and instead evaluated the legality of the search under a dual standard consisting of the trash can user's reasonable expectation of privacy and of the reasonableness of the government's intrusion. By these standards the court found the search unlawful, since it involved a trespass and since the marijuana had not been visible without police rummage in the container. In both Thayer and Edwards the court focused its attention on the search aspects of the Fourth Amendment and did not separately consider the issue of seizure. While a few California cases have upheld evidentiary seizures without warrant, they have failed to articulate any legal reasoning to justify such seizures. [People v. Roberts, 47 Cal.2d 374 [303 P.2d 721] (a police officer picked up a radio in plain sight and noted its serial number in effect a seizure of the number as evidence); People v. Harris, 67 Cal.2d 866 [64 Cal. Rptr. 313, 434 P.2d 609] (robbery suspects abandoned their automobile during pursuit and the police removed articles of clothing in plain view on the back seat); People v. Reed, 210 Cal. App.2d 80 [26 Cal. Rptr. 428] (a police officer immediately prior to defendant's arrest seized a rope protruding from beneath defendant's front boardwalk).]
From this review of the cases it clearly appears that seizure of potential evidence without warrant (dissociated from search or arrest) is permissible under the Fourth Amendment. Unfortunately, the cases do not discuss the circumstances which will serve to validate an evidentiary seizure without warrant nor do they formulate any general rationale for the guidance of peace officers and courts. Additionally, the cases themselves have tended *744 to involve seizures of items historically subject to seizure (instrumentalities, fruits of crime, and contraband), seizures connected with arrest, and seizures during hot pursuit. (Cf. concurring opinion in Warden v. Hayden, 387 U.S. 294, 310 [18 L.Ed.2d 782, 794, 87 S.Ct. 1642], which suggests that seizures should continue to be limited to these categories.) The one case directly in point, Zap v. United States, 328 U.S. 624, 630 [90 L.Ed. 1477, 1482, 66 S.Ct. 1277], dismisses as a technicality the objection there made to evidentiary seizure without warrant. Because of the lack of legal reasoning on the subject of evidentiary seizure without warrant, we turn for enlightenment to comparable situations involving direct action by a peace officer without prior authorization from a magistrate. The two closest and most analogous situations are arrest without warrant and search without warrant. When we analyze the elements which have served to validate such actions we find the presence of two dominant, recurring themes. The first is necessity; the second is reasonable cause.
Necessity
In both warrantless arrest and warrantless search the Supreme Court has said that when immediate action is necessary, public authority may act in order to further its interest in solving and suppressing crime. (Terry v. Ohio, 392 U.S. 1, 22 [20 L.Ed.2d 889, 906, 88 S.Ct. 1868].) Necessity provides the justification for stop-and-frisk and for search during hot pursuit. (Terry v. Ohio, 392 U.S. 1, 21 [20 L.Ed.2d 889, 905, 88 S.Ct. 1868]; Warden v. Hayden, 387 U.S. 294, 306 [18 L.Ed.2d 782, 791, 87 S.Ct. 1642]; cf. King v. Queen [1969] 1 A.C. 304.)
When public authority is engaged in furthering its interest in solving and suppressing crime by means of evidentiary seizure, of what does this necessity consist? The answer is not difficult to find: in such instance necessity refers to the preservation of potential evidence of crime which, if not seized, will probably disappear. We can suppose a number of instances in which investigating officers come up against the problem of seizure of potential evidence without warrant.
Item: a detective visits the Borden household in Fall River to interview Miss Elizabeth Borden after the discovery of the hacked bodies of her father and mother. On the premises he sees a hatchet next to the fireplace and an ax in the woodshed. Miss Borden notices the detective looking at these household items, and he notices that she notices. Unless he seizes these tools at once and has them examined for blood stains and fingerprints the probability is overwhelming that their value as evidence will be lost. Can he do so?
Item: in a hit-and-run death the police are led to the suspect's automobile, which matches the description of the automobile which fled the scene *745 of the accident. The fender of the car discloses some dents and some loss of paint. Can the police seize a few scraps of loose paint from the fender to compare with those discovered at the scene of the crime and on the body of the victim?
Item: the window of a burglarized house has been jimmied by a chisel which left distinctive marks on the frame. Next morning while the police are interviewing a suspect they see a chisel on the floor of his automobile. Can the police seize the chisel to make tests?
Item: the police are summoned to a household where a guest has become deathly ill under circumstances which suggest he has been poisoned. Can the police seize the glass with the remnants of the guest's drink in order to analyze its contents and examine it for fingerprints? Can they do this over the protest of the host, the owner of the glass?
In each of the foregoing instances a crime has occurred or is suspected. In each instance if a particular item is not seized on the discovery of its potential relevancy to the crime there is an obvious danger that important evidence will be lost or destroyed and become unavailable for the solution of the crime. In each instance we have a clear application of the Frankfurter principle of absolute necessity, and in each instance it would appear essential for the police to seize the potential evidence without securing a warrant if they are to fulfill their function of solving and suppressing crime. So it is with the case at bench, whose facts furnish a close parallel to the hypothetical situations we have described and whose circumstances of time and place qualify as exigent in the context of the solution and suppression of crime.
But necessity alone is not enough to justify police action without warrant. Both arrest without warrant and search without warrant must satisfy the added requirement of reasonable cause.
Reasonable Cause
Reasonable cause is a quantitative phrase used to allocate the relative weight of conflicting interests in a particular case, as, for example, the interest of public authority in making a necessary arrest or search or seizure without warrant as against the interest of the individual in remaining free from official intrusion except on the intervention of a magistrate. The reconciliation of these conflicting interests is touched upon in Terry v. Ohio, 392 U.S. 1, 22 [20 L.Ed.2d 889, 906, 88 S.Ct. 1868], where the court dealt with the accommodation required to be made between the necessity *746 for seizure of the person and the invasion of personality which seizure entails. After determining that a stop-and-frisk amounts to a temporary seizure of the person (392 U.S. pp. 1, 16, 27 [20 L.Ed.2d pp. 889, 902, 909]), the court declared that the legal question in each case is whether the officer on the facts available to him at the time of seizure can reasonably justify his action. (Pp. 19-20 [20 L.Ed.2d pp. 904-905].) In posing the question the court went on to say, "there is `no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.' Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (P. 21 [20 L.Ed.2d p. 905].)
Terry is one of a number of cases which have undertaken to define reasonable cause for arrest or for search. We think the standard definitions of reasonable cause used in such cases appropriateness of the particular action at the particular time under the particular circumstances, viewed in the light of available information and the seriousness of the crime have a parallel application to evidentiary seizure without warrant. In particular we think it logical to assume that the pattern of reasonable cause for seizure of the person (arrest) is relevant to that which is appropriate for seizure of effects (evidence). We find support for this assumption in those sections of the Penal Code which deal with arrest and with search. By statute, a peace officer may arrest a person pursuant to warrant, or when he has reasonable cause to believe the arrested person has committed a felony. (Pen. Code, § 836.) By statute, a peace office may seize items pursuant to warrant (Pen. Code, § 1524, subd. 4), or, if we follow the comparable pattern for arrest, when he has reasonable cause to believe the items are potential evidence of crime. While there is no explicit statutory authority for the latter seizure, by implication Penal Code section 1538.5 recognizes the possibility of evidentiary seizure without warrant and undertakes to create a remedy for its abuse. Section 1538.5 in pertinent part states: "(a) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on the ground that: (1) The search or seizure without a warrant was unreasonable; or (2) The search or seizure with a warrant was unreasonable ..." (Italics added.) With respect to evidence seized without a warrant, the subsection tells us the evidence may be suppressed, if the seizure was unreasonable. The clear implication of the subsection is that the evidence need not be suppressed, if the seizure was reasonable. To state the implication positively: a warrantless seizure of evidence may be valid if reasonable cause for the seizure exists.
*747 Evidentiary Seizure Without Warrant
We can now outline the circumstances under which a peace officer's seizure of potential evidence without a warrant, dissociated from search or arrest, will be upheld. These circumstances comprehend the following requirements:
(1) The officer must have reasonable cause to believe a particular crime has been committed. This requirement is compelled by the Constitution in order to avoid the danger of exploratory searches and seizures. (Warden v. Hayden, 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642].) It is required for a search warrant (Pen. Code, § 1524, subd. 4); it is required for an arrest without warrant (Pen. Code, § 836). A fortiori, it is required for a seizure of evidence without warrant.
(2) The evidence must not have been discovered as the result of any invasion, intrusion, or illegal entry other than purely formal trespass. (McDonald v. United States, 335 U.S. 451 [93 L.Ed. 153, 69 S.Ct. 191].) The cases upholding seizure even of contraband emphasize that what was seized was seen by an officer from a place in which he had a right to be. (Hester v. United States, 265 U.S. 57 [68 L.Ed 898, 44 S.Ct. 445]; People v. Terry, 70 Cal.2d 410, 427 [77 Cal. Rptr. 460, 454 P.2d 36]; Zap v. United States, 328 U.S. 624 [90 L.Ed. 1477, 66 S.Ct. 1277]; People v. Roberts, 47 Cal.2d 374 [303 P.2d 721].)
(3) The evidence must be in plain sight or readily accessible to routine inspection without rummage or pry. If the evidence is discoverable only as a result of inquisitive or exploratory action then what is involved is a search, and the rules for search apply. (Chimel v. California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034]; Harris v. United States, 390 U.S. 234, 236 [19 L.Ed.2d 1067, 1069, 88 S.Ct. 992]; Ker v. California, 374 U.S. 23, 43 [10 L.Ed.2d 726, 743, 83 S.Ct. 1623]; People v. Edwards, 71 Cal.2d 1096 [80 Cal. Rptr. 633, 458 P.2d 713].)
(4) The officer must have reasonable cause to believe the evidence tends to show the commission of the crime or tends to show that a particular person committed the crime. (Pen. Code, § 1524, subd. 4; Warden v. Hayden, 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642].)
(5) The seizure must be necessary to preserve potential evidence, and the degree of invasion of other interests affected by the seizure must be in proportion to the seriousness of the crime.
(3) To summarize the rule: when a peace officer lawfully discovers an item he reasonably believes is potential evidence of a particular crime, and its seizure appears necessary for its preservation, he may seize the item *748 without a warrant. (People v. Terry, 70 Cal.2d 410, 424 [77 Cal. Rptr. 460, 454 P.2d 36]; People v. Roberts, 47 Cal.2d 374 [303 P.2d 721].) We find no inconsistency between this rule and People v. Edwards, 71 Cal.2d 1096 [80 Cal. Rptr. 633, 458 P.2d 713], the trash can case, where (1) there was no reasonable cause to believe a crime had been committed; (2) the marijuana in the trash can was not in plain sight but had only been discovered after the police "rummaged" through the contents of the trash can, i.e., conducted what the court considered a general exploratory search.
Applying this rule to the case at bench, we conclude that Chief Johnson's seizure of the burnt cloth was justified and as a consequence the item was properly received in evidence.
III
(4) Defendant's final contention, the inadmissibility of his statement to the investigating officers the day after the fire, may not be raised on appeal since he did not object to the admission of this evidence in the trial court. Moreover, it is clear that at the time defendant made this statement he was neither in custody nor restrained by police authority. Finally, the statement consisted of no more than defendant's terse assertion he had been burned in the Fish Canyon area, a claim he had previously volunteered to the police officer who accompanied him to the hospital the preceding day. For these reasons the claim of error is without merit.
The judgment is corrected to reflect defendant's conviction under Penal Code section 448a, rather than 484a, and as corrected the judgment is affirmed. The purported appeal from the order denying the motion for a new trial is dismissed.
Roth, P.J., and Herndon, J., concurred.
NOTES
[1] The information and judgment erroneously refer to the Penal Code section on arson as 484a instead of 448a. Since it is demonstrable that defendant was not misled, the typographical error is harmless and correctible on appeal. (Cal. Const., art. VI, § 13.)
[2] Chief Johnson, an arson investigator for a fire protection unit, falls within the category of peace officer. (Pen. Code, § 830.3, subd. (m), formerly § 817.)
[3] English law continues to refuse to suppress evidence which has been obtained contrary to law. (15 Halsbury's Laws of England (3d ed.), pp. 266-267.) Recent cases include King v. The Queen [1969] 1 A.C. 304, also reported as King v. Reginam [1968] 2 All Eng.Rep. 610; Chic Fashions v. Jones [1968] 1 All Eng.Rep. 229 and Kuruma v. Regina [1955] 1 All Eng.Rep. 236. It is also established law in England that if the police are searching for one purpose and see contraband or evidence which would prove another crime, they are entitled to seize such items. (Elias v. Pasmore [1934] 2 K.B. 164.)
England does, however, recognize a doctrine of fairness to the accused under which the court has discretion to suppress evidence when it believes the police have acted oppressively. English cases evaluate the problem of search and seizure as one of striking a balance between the interest of the individual in remaining free from intrusion and the interest of society in maintaining order and suppressing crime. The reported cases suggest that evidence is rarely suppressed because of unfairness to the accused.
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6 N.Y.3d 894 (2006)
People v. Guzman.
Court of Appeals of the State of New York.
May 9, 2006.
Application in criminal cases for leave to appeal denied. (R.S. Smith, J.).
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0913n.06
Filed: December 20, 2006
No. 05-4542
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HYRIJE JSUF VUTHI, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW FROM A
) DECISION OF THE BOARD OF
ALBERTO GONZALES, Attorney General ) IMMIGRATION APPEALS
)
Respondent. )
Before: BOGGS, Chief Judge; COOK, Circuit Judge; and ROSE, District Judge.*
PER CURIAM. Hyrije Jsuf Vuthi, a native and citizen of Albania, petitions for review of
a Board of Immigration Appeals (“BIA”) decision to affirm an Immigration Judge’s (“IJ’s”) order
denying her motion to reopen removal proceedings. Because the BIA did not abuse its discretion,
we deny the petition for review.
I
Vuthi illegally entered the United States in June 1998 with her two sons and thereafter
applied for asylum and withholding of removal. At an April 2000 merits hearing, Vuthi testified
*
The Honorable Thomas M. Rose, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 05-4542
Vuthi v. Gonzales
about her persecution—consisting of the police stopping and questioning her on a few
occasions—due to her membership in and her support of the Democratic Party (“DP”) of Albania.
She also asserted at the hearing that her Muslim ex-husband, a former member of the
Albanian Army and the Communist Party, severely beat her because of her political opinion and her
Catholic faith. When she reported him to the police, Vuthi claims that the police failed to protect
her because of her DP membership. When she divorced her husband in 1988, she was awarded
custody of her children and support payments.
During the merits hearing, the IJ advised Vuthi that her application would probably be
denied. After consulting with her attorney, she agreed to withdraw her application for asylum and
withholding of removal and to accept voluntary departure no later than August 2000. She also
waived her right to appeal. Vuthi never departed the United States voluntarily.
In July 2004, four years after her merits hearing, Vuthi moved to reopen her removal
proceeding. The IJ denied the motion because Vuthi “withdrew [her] applications and took
voluntary departure. Hence there [was] little chance any motion to reopen would be granted.”
The BIA affirmed the decision, noting (1) the unexplained four-year lapse between Vuthi’s
agreement to voluntarily depart and her motion to reopen, (2) that the death of her younger
son—who had been removed to Albania—occurred at least two years before she filed her motion
to reopen, and (3) that Vuthi had “not provided sufficient evidence of changed country conditions
-2-
No. 05-4542
Vuthi v. Gonzales
in Albania to warrant an exception to the filing deadline under 8 C.F.R. § 1003.23(b)(4)(i).” The
BIA concluded Vuthi had demonstrated a lack of diligence in pursuing her claim. She now petitions
for review.
II
We review the BIA’s denial of a motion to reopen for an abuse of discretion. Denko v. INS,
351 F.3d 717, 723 (6th Cir. 2003). Generally a party must file a motion to reopen “within 90 days
of the date of entry of a final administrative order of removal.” 8 U.S.C. 1229a(c)(7)(C)(i); see also
8 C.F.R. § 1003.23(b)(1). Vuthi attempts to justify her significant delay based on previously
unavailable evidence of changed circumstances in Albania. 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
8 C.F.R. § 1003.23(b)(4)(i). She directs our attention to three pieces of evidence to further her cause.
First, Vuthi points to the death of her younger son after his removal to Albania. Because she
is “not sure what the cause of death was” and does not claim that the Albanian government killed
him, we accord no pertinent evidentiary value to this unfortunate occurrence.
Second, she believes her husband blames her for their son’s death and fears the revenge he
would seek. To the extent that Vuthi continues to argue that her ex-husband’s ill will is politically
and religiously motivated, that evidence is not new because it was before the immigration judge in
her earlier proceedings. Insofar as she claims his ill will is based on her younger son’s death and her
older son’s imprisonment, her fear is based on changed personal circumstances, which cannot excuse
-3-
No. 05-4542
Vuthi v. Gonzales
an untimely motion to reopen. See Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006); Matter
of S-A-, 22 I. & N. Dec. 1328, 1334 (B.I.A. 2000).
Third, she presents several reports and articles on Albania’s human-rights and political
situations and claims these demonstrate changed country conditions. We view these reports as
unavailing because they also demonstrate certain other bases for finding improved political
conditions in Albania, and none of these submissions supports an individualized fear of persecution.
See Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (finding articles and reports offered to
support motion to reopen failed to demonstrate “individualized” fear of persecution). In fact, Vuthi
concedes the improved circumstance of the DP defeat of the Socialist Party in the July 2005
elections.
Recounting her arrests and beatings by her husband, Vuthi next claims that “exceptional
circumstances” required the BIA to reopen her case sua sponte on humanitarian grounds. Even if
Vuthi had presented this argument to the BIA, which she did not, this court has held that “[t]he
decision whether to invoke sua sponte authority is committed to the unfettered discretion of the BIA
. . . [and is] not subject to judicial review.” Id. at 410-11 (internal citation omitted).
Finally, we see no merit in Vuthi’s argument that she was denied her Fifth Amendment right
to due process by the BIA’s brevity in its statement of reasons for denying reopening. Due process
-4-
No. 05-4542
Vuthi v. Gonzales
does not always require a lengthy explication. Cf. Bah v. Gonzales, 462 F.3d 637, 640 (6th Cir.
2006) (citing Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004)).
III
For these reasons, we deny Vuthi’s petition for review.
-5-
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
DAVID M. ROEDER, et al., )
)
Plaintiffs, )
) Civ. Action No. 08-487 (EGS)
v. )
)
THE ISLAMIC REPUBLIC OF IRAN, )
)
Defendant. )
_________________________________)
MEMORANDUM OPINION
This case represents the latest in a series of attempts by
plaintiffs, who were taken hostage by the government of the
Islamic Republic of Iran in 1979, to hold that country
responsible for their tremendous suffering. Plaintiffs have
attempted to sue Iran at various times since 1983, without
success. See, e.g., Persinger v. Islamic Republic of Iran, 729
F.2d 835 (D.C. Cir. 1984); McKeel v. Islamic Republic of Iran,
722 F.2d 582 (9th Cir. 1983); Ledgerwood v. State of Iran, 617
F. Supp. 311 (D.D.C. 1985). Plaintiffs again filed suit in this
Court in 2000, in Roeder v. Islamic Republic of Iran, Civ.
Action No. 00-3110(EGS) (hereinafter “Roeder I”). In April
2002, this Court dismissed plaintiffs’ claims. See Roeder I,
195 F. Supp. 2d 140 (D.D.C. 2002). This Court held that the
Foreign Sovereign Immunities Act (“FSIA”), as it existed in
2002, did not create a private right of action against the
government of Iran and accordingly that plaintiffs could not
pursue their claims against Iran. The Court of Appeals affirmed
the decision in 2003. See Roeder v. Islamic Republic of Iran,
333 F.3d 228 (D.C. Cir. 2003) (also referenced herein as Roeder
I).
In their previous cases, including Roeder I, plaintiffs
have been thwarted by the Algiers Accords, the 1981 executive,
bi-lateral agreement between the United States and Iran that
secured the hostages’ release. Both the Algiers Accords and its
implementing regulations contain express prohibitions barring
lawsuits arising out of the hostage taking. As this Court and
the Court of Appeals explained in Roeder I, Congress has the
authority to abrogate the Algiers Accords; however, it must act
clearly and unambiguously to do so. See Roeder I, 195 F. Supp.
2d at 168-170, aff’d 333 F.3d 237-238. In Roeder I, this
Circuit concluded that as of 2002 Congress had not acted clearly
or unambiguously, and thus dismissed plaintiffs’ claims. See
195 F. Supp.2d at 166; aff’d 333 F.3d at 238.
Now, several years later, plaintiffs have returned to this
Court and filed the instant case (hereinafter “Roeder II”).
Plaintiffs argue that in the years since Roeder I was decided,
Congress has created a private right of action which enables
them to proceed with a lawsuit against Iran. Specifically, they
2
argue that by enacting the National Defense Authorization Act
for Fiscal Year 2008, Congress has finally spoken clearly and
unambiguously, and created a cause of action to enable them to
sue Iran for damages. Compl. ¶ 20. The United States
intervened and shortly thereafter filed a motion to dismiss,
arguing that once again, Congress has failed to act with
sufficient clarity to abrogate the Algiers Accords. This Court
is thus confronted with the same fundamental question it faced
in 2002: whether Congress has acted definitively to abrogate the
Algiers Accords and enable plaintiffs to move forward in their
suit for damages. With an equal measure of frustration, regret,
and compassion the Court must conclude, once again, that
Congress has failed to provide plaintiffs with a cause of action
against Iran. Accordingly, this Court is not empowered to
provide plaintiffs the relief they seek and the United States’
motion to dismiss must be GRANTED.
I. BACKGROUND
A. Roeder I, and the State of the Law When it Was Decided
As set forth above, this Court does not write on a clean
slate: this case, like Roeder I, rests squarely on whether
Congress has abrogated the Algiers Accords. As explained in
Roeder I, the Algiers Accords is an international executive
agreement the United States entered into with the Islamic
Republic of Iran on January 19, 1981, in order to obtain the
3
freedom of the plaintiff hostages. Among other commitments
contained in the agreement, the United States agreed to “bar and
preclude the prosecution against Iran of any pending or future
claim of . . . a United States national arising out of the
events . . . related to (A) the seizure of the 52 United States
nationals on November 4, 1979, [and] (B) their subsequent
detention.” Declaration of the Government of the Democratic and
Popular Republic of Algeria, ¶ 11 (reprinted at 20 I.L.M. 223,
227).
The Roeder I courts explained that a statute must satisfy
one of two criteria to overturn a previously-enacted
international agreement such as the Algiers Accords. First, if
a later statute unambiguously conflicts with the international
agreement on its face, the unambiguous later statute will
prevail. See Roeder I, 195 F. Supp. 2d at 170 (citing Reid v.
Covert, 354 U.S. 1, 17 (1957); Whitney v. Robertson, 124 U.S.
190, 191 (1888); Committee of United States Citizens Living in
Nicaragua v. Reagan, 859 F.2d 929, 936-37 (D.C. Cir. 1988);
South African Airways v. Dole, 817 F.2d 119, 126 (D.C. Cir.
1987)). If the statute is ambiguous, however, a Court will not
interpret it to modify or abrogate a treaty or executive
agreement “unless such purpose of Congress has been clearly
expressed.” Bennett v. Islamic Republic of Iran, No. 09-5147,
2010 WL 3515811 at *4 (D.C. Cir. Sept. 10, 2010) (quotation
4
omitted, citing Roeder I, 333 F.3d at 237). As the Court of
Appeals explained:
Executive agreements are essentially contracts between
nations, and like contracts between individuals,
executive agreements are expected to be honored by the
parties. Congress (or the President acting alone) may
abrogate an executive agreement, but legislation must
be clear to ensure that Congress - and the President -
have considered the consequences. The requirement of
clear statement assures that the legislature has in
fact faced, and intended to bring into issue, the
critical matters involved in the judicial decision.
Roeder I, 333 F.3d at 238 (internal citation omitted).
Accordingly, in Roeder I, the courts determined that an Act
of Congress will only abrogate the Algiers Accords’ bar to the
hostages’ ability to sue if it (1) clearly and unambiguously
gives the Court subject matter jurisdiction to hear plaintiffs’
case, and (2) clearly and unambiguously creates a cause of
action against Iran for the 1979 hostage taking. See Roeder I,
195 F. Supp. 2d at 163, 167, aff’d 333 F.3d at 236-237. This
Court found, and the D.C. Circuit affirmed, that when Roeder I
was decided, Congress had provided the first, but not the
second. The Roeder I courts’ analysis of subject matter
jurisdiction and private rights of action are briefly summarized
in turn.
As a general matter, the FSIA grants foreign states
immunity from liability in United States courts. Federal courts
thus generally lack subject matter jurisdiction over claims
5
against a foreign state. Congress has, however, provided
several specific exceptions to this immunity. See 28 U.S.C.
§ 1604; see also Roeder I, 333 F.3d at 235. The Anti-Terrorism
Act of 1996 created one such exception, and allowed jurisdiction
over foreign states for certain state-sponsored acts of
terrorism. See 28 U.S.C. § 1605(a)(7) (1996). Initially, the
1979 hostage-taking of the Roeder I plaintiffs did not fall
within that exception; however, Congress amended the law in 2001
to specifically waive sovereign immunity for acts “related to
Case Number 1:00CV03110(EGS)1 in the United States District Court
for the District of Columbia.” Pub. L. 107-77, 115 Stat. 748
(2001) (“Section 626(c)”). Thus, Section 626(c) amended the
FSIA to remove sovereign immunity and create jurisdiction for
any acts that related to Roeder I. See 195 F. Supp. 2d at 163;
aff’d 333 F.3d at 235. The Roeder I courts found that Congress
had therefore clearly and unambiguously created subject matter
jurisdiction for plaintiffs’ claims to be heard in this Court.
The Roeder I courts next turned to the question of whether
the 2001 amendments to the FSIA unambiguously created a cause of
action for plaintiffs to sue Iran. The courts found that
1
The text originally read “. . . (ESG) . . .” but was corrected
in January 2002 to properly set forth the undersigned’s
initials. See Pub. L. 107-117, 115 Stat. 2230 (2002).
6
Congress had not unambiguously created such a cause of action.
As this Court explained, while the exceptions to sovereign
immunity “allowed federal courts to have jurisdiction over
claims against foreign governments arising [out] of state
sponsored terrorist activity. . . . [w]hat the [exceptions] did
not do was create a private cause of action for the victims of
state-sponsored terrorism. Like all the other exceptions to
foreign sovereign immunity in the FSIA, victims of state-
sponsored terrorism had to look to other laws to provide a cause
of action against the foreign state.” Roeder I, 195 F. Supp.
2d. at 171 (citations omitted). When Roeder I was decided, the
sole unambiguous private cause of action for victims of
terrorism under federal law was conferred by the Flatow
Amendment of 1996, 28 U.S.C. § 1605 note, which only provided “a
private right of action against officials, employees and agents
of a foreign state, not against the foreign state itself.”
Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033
(D.C. Cir. 2004)(superseded by statute); see also In re: Islamic
Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 46
(D.D.C. 2009). The 2001 amendments to the FSIA did not clearly
expand this cause of action.
As such, the courts found that the 2001 amendments to the
FSIA were ambiguous. While it was possible to interpret the
amendments as creating a new private right of action for
7
plaintiffs, it was equally plausible to read the amendments to
confer subject matter jurisdiction over the lawsuit but not to
create a cause of action for plaintiffs to sue the state of
Iran. See 195 F. Supp. 2d at 171; aff’d 333 F.3d at 236.
Because the Courts found the statutory text ambiguous, they
examined the statute and the legislative history to determine
whether Congress expressed a clear intent to abrogate the
Algiers Accords. See id. Neither this Court nor the D.C.
Circuit found a sufficiently clear manifestation of
congressional intent. Accordingly, because Congress had neither
created an unambiguous cause of action nor demonstrated a clear
intent to abrogate the Algiers Accords, plaintiffs were barred
from pursuing their claims against the Islamic Republic of Iran
in Roeder I.
B. Congressional Efforts After Roeder I, and the Existing
State of the Law.
Following Roeder I, several bills were introduced in
Congress which, if enacted, would have undoubtedly provided the
1979 hostages with a viable means to sue Iran. In a 2008 Report
for Congress, the Congressional Research Service details
attempts in the 107th, 108th, 109th, and 110th sessions of Congress
“to enact legislation that would explicitly abrogate the
provision of the Algiers Accords barring the hostages’ suit.”
JENNIFER K. ELSEA, CONGRESSIONAL RESEARCH SERV., SUITS AGAINST
8
TERRORIST STATES BY VICTIMS OF TERRORISM (2008), p. CRS-31,
available at http://www.fas.org/sgp/crs/terror/RL31258.pdf. As
set forth more fully in the Report, Congress has considered
multiple bills containing language expressly nullifying the
relevant provisions of the Algiers Accords. Id. at CRS-31, -32.
None of that language, however, was enacted into law. Id.
Rather, in January of 2008, Congress enacted and the
President signed into law the National Defense Authorization Act
of 2008 (“NDAA”), Pub. L. 110-181, 122 Stat. 3 (2008), which
precipitated the filing of the instant lawsuit. For the
purposes of resolving the issues in this case, the only relevant
provision is Section 1083, which has been codified at 28 U.S.C.
§ 1605A. The Court will provide a brief overview of the three
relevant provisions of § 1083 here; detailed analysis of each
provision will be set forth infra.
i. 28 U.S.C. § 1605A(a)
Title 28 U.S.C. § 1605A(a) reformulates the terrorism
exceptions to sovereign immunity. It incorporates one new
provision that encompasses both: (1) the terrorism exception to
the jurisdictional immunity of a foreign state, which originally
appeared in the Anti-Terrorism Act of 1996, and (2) the specific
exception to sovereign immunity for Roeder I that was set forth
in § 626(c).
9
ii. 28 U.S.C. §§ 1605A(c) and 1605A Note
Title 28 U.S.C. § 1605A(c) is titled “Private Right of
Action.” It creates a cause of action for damages against a
“foreign state that is or was a state sponsor of terrorism”
under certain circumstances which are set forth elsewhere in the
statute. See 28 U.S.C. § 1605A(c). Only one such circumstance
is relevant for the purposes of this case. This circumstance is
set forth at Section 1083(c) of the NDAA, codified as 28 U.S.C.
§ 1605A note, and provides that certain cases that are otherwise
time-barred may be filed or refiled under the new statute.
Section 1083(c) delineates the scope of retroactive relief
available under § 1605A. It sets forth two situations where the
NDAA may apply to cases filed prior to its enactment. First,
section 1083(c)(2), titled “Prior Actions,” provides that
certain cases which were still pending before the courts under
the preceding statutory scheme when the NDAA was enacted may be
refiled under the NDAA. By refiling, claimants may take
advantage of the new statute’s provisions, which are
significantly more favorable to terrorism plaintiffs in general.
Second, section 1083(c)(3), titled “Related Actions,” provides
that certain new actions may be filed under the NDAA if they
arose out of the same act or incident as cases filed under the
previous statutory scheme. It reads, in relevant part,
10
(3) RELATED ACTIONS. - If an action arising out of an act
or incident has been timely commenced under section
1605(a)(7) of title 28, United States Code . . . any
other action arising out of the same act or incident
may be brought under section 1605A of title 28, United
States Code [this section], if the action is commenced
not later than the latter of 60 days after —
(A) the date of the entry of judgment in the
original action; or
(B) the date of the enactment of this Act [Jan.
28, 2008].
Taken together, § 1605A(c) and § 1083(c)(3) provide a cause
of action against state sponsors of terrorism in otherwise-
untimely new actions under the NDAA - not refiled old ones - so
long as the new action is “related” to another action that has
been timely commenced under the FSIA and Anti-Terrorism Act of
1996.
II. PROCEDURAL HISTORY
On March 21, 2008, plaintiffs commenced this action against
the Islamic Republic of Iran alleging violations of 28 U.S.C. §
1605A. They assert that Roeder II is “related” to Roeder I, as
defined in Section 1083(c)(3) of the NDAA (28 U.S.C. § 1605A
note) and therefore that they have a cause of action under §
1605A(c). Compl. p. 2, see also ¶¶ 21-24. Specifically, they
allege that “[t]his action is a related action to Roeder v.
Islamic Republic of Iran, et al., Case No. 1:00CV03110(EGS), and
arises out of the same act or incident which was timely
commenced under section 1605(a)(7) of title 28 in this Court.
11
As such, this action qualifies as a related action under 28
U.S.C. § 1605A.” Compl. p. 2. They seek 6.6 billion dollars in
compensatory and punitive damages.
In light of the events of Roeder I, namely Iran’s refusal
to appear in this Court and the United States’ last minute
intervention in the litigation, the Court extended an invitation
to the Department of State to “file a statement of interest in
the present case, if appropriate, pursuant to 28 U.S.C. § 517.”
Doc. No. 7, Letter from Hon. Emmet G. Sullivan to John B.
Bellinger III, Legal Advisor, U.S. Department of State, April
11, 2008. The government responded in June 2008, stating that
if plaintiffs were able to perfect service on Iran and the case
were to go forward, “the United States may well have an interest
in participating in this litigation.” Doc. No. 11, Report of
United States, June 13, 2008.
Plaintiffs served Iran at the end of November 2008, but
Iran elected not to appear. In April 2009, plaintiffs filed a
motion for default judgment as to liability. Immediately
thereafter, the United States moved to intervene in this lawsuit
and subsequently filed a motion to dismiss. In early October
2009, plaintiffs filed a notice of supplemental authority: In re
Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31
(D.D.C. 2009). Following briefing on this supplemental
authority, this Court heard oral argument on the government’s
12
motion to dismiss on April 21, 2010. At the hearing, the Court
expressed its concern about the lack of clarity in § 1083. The
Court continued the motions hearing for 30 days and directed the
parties to inform the Court in the event of any further
Congressional developments. The Court reconvened the hearing on
May 27, 2010, confirmed with the parties that no Congressional
action had been taken, and took the case under advisement. The
parties’ motions are now ripe for resolution by the Court.
III. ANALYSIS
Pending before the Court is the United States’ motion to
dismiss for failure to state a claim. In its motion to dismiss,
the government concedes that § 1083 of the NDAA provides a cause
of action against Iran under certain circumstances, but argues
that those circumstances do not unambiguously include
plaintiffs’ case. Thus, the government argues, Congress has not
clearly abrogated the Algiers Accords’ substantive bar to this
litigation. The United States argues that while § 1083 creates
substantive rights for other victims of terrorism, it did not
cure the 1979 hostages’ inability to pursue claims against Iran.
Plaintiffs raise three main arguments in opposition. First,
they argue that Congress unambiguously created a private right
of action for plaintiffs, in particular, to sue Iran pursuant to
§ 1605A(a)(2)(b). Alternatively, plaintiffs argue that
13
§ 1605A(c) and NDAA section 1083(c), taken together,
unambiguously create a cause of action because Roeder I
qualifies as a “related action” to Roeder II as that term is
defined by § 1083(c)(3). Finally, plaintiffs argue that “[e]ven
if Congress [] enacted ambiguous statutory language . . . § 1083
would still abrogate the Algiers Accords because Congress’s
intent to do so is overwhelmingly clear.” Pls.’ Opp’n at 6.
After careful consideration of the parties’ arguments and
the applicable law, the Court finds that plaintiffs’ ability to
sue the government of Iran has not changed since Roeder I:
§ 1083 does not unambiguously create a cause of action for these
plaintiffs against Iran. The Court’s holding in Roeder I
applies equally to the new statutory scheme: “Because th[e]
statute is ambiguous, and because [§ 1083] [n]ever mentions the
Algiers Accords in statutory text or legislative history, this
Court cannot interpret this legislation to implicitly abrogate a
binding international agreement. Therefore this Court must
dismiss plaintiffs’ claims.” 195 F. Supp. 2d at 166.
A. Congress Must Act Clearly and Unambiguously to
Overturn the Algiers Accords.
The parties agree that this case, like Roeder I, turns on
whether a later-in-time statute abrogates the Algiers Accords.
On September 10, 2010, the D.C. Circuit reaffirmed the demanding
standard a party must meet in order to show that a treaty or
14
executive agreement has been abrogated or substantively modified
by a later statute. See Bennett v. Islamic Republic of Iran,
2010 WL 3515811 at *4 (citing Roeder I, 333 F.3d at 237). As
fully set forth in the Roeder I decisions, and recapitulated in
Section I.A supra, it is not enough to show that a later-in-time
statute may be read to abrogate a previously-enacted
international agreement. Rather, the later statute must
unambiguously conflict with the agreement in its language and
effect. A statute is only unambiguous if it is not “reasonably
susceptible to more than one meaning.” McCreary v. Offner, 172
F.3d 76, 82 (D.C. Cir. 1999); see also U.S. v. Villanueva-
Sotelo, 515 F.3d 1234, 1237 (D.C. Cir. 2008) (statute is
ambiguous when more than one interpretation is possible); Air
Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 4 (D.C. Cir. 1999)
(finding statute ambiguous because, “[a]lthough the inference
petitioner would draw as to the statute’s meaning is not by any
means unreasonable, it is also not inevitable.”). If the later
statute is not unambiguous on its face, it must contain a clear
expression of Congressional intent to abrogate the earlier
agreement. See Roeder I, 195 F. Supp. 2d at 169-170 (collecting
cases); see also 333 F.3d at 237-38 (collecting cases). As set
forth by this Court in Roeder I:
The Supreme Court has provided some guidance as to
what it will accept and not accept as a clear
expression of legislative intent in this context. The
15
Supreme Court has unequivocally held that legislative
silence is not sufficient to abrogate a treaty or a
bi-lateral executive international agreement. When a
later statute conflicts with an earlier agreement, and
Congress has neither mentioned the agreement in the
text of the statute nor in the legislative history of
the statute, the Supreme Court has conclusively held
that it can not find the requisite Congressional
intent to abrogate.
Roeder I, 195 F. Supp. 2d at 175 (internal citations and
quotations omitted); aff’d 333 F.3d at 238. The law on this
issue has not changed since Roeder I was decided. See, e.g.,
Medellin v. Texas, 552 U.S. 491, 509 n.5 (2008).2
In short, when interpreting newly created federal
legislation which covers the same legal ground as pre-existing
international agreements, this Court’s role is extremely
limited. As set forth in Roeder I,
There are two branches of government that are
empowered to abrogate and rescind the Algiers Accords,
and the judiciary is not one of them. The political
2
The Medellin Court cited Cook v. United States, 288 U.S. 102,
119-120 (1933), for the proposition that a later-in-time federal
statute supersedes inconsistent treaty provisions. Cook, in
turn, recited the already-settled principle that “a treaty will
not be deemed to have been abrogated or modified by a later
statute, unless such purpose on the part of Congress has been
clearly expressed. Here, the contrary appears. The committee
reports and the debates upon the act of 1930, like the re-
enacted section itself, make no reference to the Treaty.” Id.
(citations omitted). Accordingly, the Cook court found that the
treaty at issue in that case remained unaffected by the later-
in-time statute. Id.
16
considerations that must be balanced prior to such a
decision are beyond both the expertise and the mandate
of this Court. Unless and until either the
legislative or executive branch acts clearly and
decisively, this Court cannot grant plaintiffs the
relief they seek.
195 F. Supp. 2d at 145.
B. Section 1605A(a) Does Not Unambiguously Create A Cause
of Action for Plaintiffs.
In their opposition to the motion to dismiss, plaintiffs
argue that § 1605A(a)(2)(B) unambiguously creates a cause of
action specifically for them. Pls.’ Opp’n 6-19. The government
counters that § 1605A(a)(2)(B) only confers subject matter
jurisdiction on the courts; it does not create a cause of action
for plaintiffs to sue Iran. After careful consideration, and as
explained more fully below, the Court finds that the text and
structure of the statute do not support plaintiffs’
construction. Moreover, plaintiffs’ construction of
§ 1605A(a)(2)(B) ignores the binding authority of Roeder I, in
which the D.C. Circuit held that substantially identical
language in a predecessor statute did not unambiguously create a
cause of action. Accordingly, the Court concludes that
§ 1605A(a)(2)(B) does not provide plaintiffs with a cause of
action against Iran.
17
Section 1605A(a) provides in relevant part:
(a) IN GENERAL
(1) NO IMMUNITY. A foreign state shall not be immune
from the jurisdiction of courts of the United
States . . . in which money damages are sought
against a foreign state for personal injury or
death that was caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage
taking . . .
(2) CLAIM HEARD. The court shall hear a claim under
this section if –
(A)(i)(I) the foreign state was designated as a
state sponsor of terrorism at the time the act
described in paragraph (1) occurred . . . ; or
[...]
(B) the act described in paragraph (1) is
related to case Number 1:00CV03110 (EGS) in
the United States District Court for the
District of Columbia.
28 U.S.C. § 1605A(a).
In order for statutory construction to withstand scrutiny,
“at a minimum, [it] must account for a statute’s full text,
langauge as well as punctuation, structure and subject matter.”
U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of America,
Inc., 508 U.S. 439, 455 (1993). Plaintiffs’ proposed reading of
the statute violates this irreducible minimum. The text of
§ 1605A(a) refers only to subject matter jurisdiction; it is
separate and apart from § 1605A(c), which creates a cause of
18
action.3 Because § 1605A(c), not § 1605A(a), creates a cause of
action, and because the reference to Roeder I occurs only in the
jurisdictional section, § 1605A(a), the Court concludes that
§ 1605A(a) does not create a cause of action for plaintiffs to
sue Iran.
Plaintiffs’ argument is further undermined when considered
in light of the history of this case in particular, where the
outcome of Roeder I hinged on the distinction between subject
matter jurisdiction and private rights of action. As discussed
in Section I supra, § 1605A(a)(2)(B) is nearly identical to the
language of former § 626(c), which was central to the Court’s
analysis in Roeder I. This Court found that while § 626(c) did
create subject matter jurisdiction for the Court to hear
plaintiffs’ claims, it did not abrogate the Algiers Accords
because it did not create a cause of action for plaintiffs
3
Section § 1605A(c) is aptly entitled “Private Right of Action.”
See 28 U.S.C. § 1605A(c). Unlike the jurisdictional portion of
the statute, § 1605A(c) contains no reference to Roeder I, nor
does it refer to or incorporate the jurisdictional subsection
where Roeder I is mentioned. Id. Rather, § 1605A(c)
specifically creates a cause of action with respect to a foreign
state “that is or was a state sponsor of terrorism as described
in [] § [1605A](a)(2)(A)(i).” Id. It is noteworthy that
Congress chose to explicitly incorporate another jurisdictional
provision of the statute – § 1605A(a)(2)(A)(i) - into the
section governing private rights of action, but omitted
§ (a)(2)(B), the jurisdictional provision which references
Roeder I. Clearly, had Congress intended to include § (a)(2)(B)
in the section governing private rights of action, it could have
done so.
19
against Iran. See Roeder I, 195 F. Supp. 2d at 172. The D.C.
Circuit explicitly affirmed this point, holding that § 626(c)
spoke “only to the antecedent question of Iran’s immunity from
suit in United States courts.” 333 F.3d at 236.
Despite this Circuit’s explicit holdings that § 626(c) was
not sufficient to create a private right of action for the
hostages to sue Iran, Congress chose to cut and paste the same,
insufficient language from § 626(c) in the NDAA, and to place it
in the jurisdictional section of the legislation only, not the
section entitled “Private Right of Action.” As plaintiffs
themselves point out, courts normally assume that “when Congress
enacts statutes, it is aware of relevant judicial precedent.”
Pls.’ Notice of Supp. Auth. at 1, (quoting Merck & Co. v.
Reynolds, 130 S. Ct. 1784, 1795 (2010)); see also, Pls.’ Opp’n
at 1, 6, 7, n.6, 9 (citing, e.g., Boumediene v. Bush, 553 U.S.
723, 738 (2008)). Given the history and precedent regarding the
crucial distinction between creation of subject matter
jurisdiction and creation of a cause of action as regards these
very plaintiffs, “the reasons for making this assumption are
particularly strong here.” Merck, 130 S. Ct. at 1795-96.
Plaintiffs make several additional arguments in support of
their claim that § 1605A(a)(2)(B) unambiguously creates a cause
of action against Iran. For the reasons discussed below, their
arguments are unpersuasive.
20
First, plaintiffs assert broadly that “Congress’s action in
enacting § 1083 of the NDAA is entirely inexplicable other than
as intended to permit plaintiffs to sue Iran and thereby to
abrogate any bar to the claim under the Algiers Accords.” Pls.’
Opp’n at 4, see also 10. This argument is plainly without
merit. As the government correctly notes, § 1083 is a statute
of general applicability intended to permit U.S. nationals to
sue many state sponsors of terrorism in U.S. courts, and is
directly relevant to various cases that were pending against
Iran, Cuba, and Libya, among other nations, when it was passed.
Gov’t Reply at 6. As noted by the D.C. Circuit and by another
judge on this Court, § 1083 “is more comprehensive and more
favorable to [terrorism plaintiffs generally] because it adds a
broad array of substantive rights and remedies that simply were
not available in actions under § 1605(a)(7).” In re Islamic
Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 58; see
also Simon et al. v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C.
Cir. 2008), rev’d on other grounds, 129 S.Ct. 2183 (2009)
(explaining NDAA’s advantages to terrorism plaintiffs generally,
including limiting foreign states’ appeal rights, permitting
plaintiffs to attach property in advance of judgment, and
providing for punitive damages). Plaintiffs’ argument that
§ 1083 is inexplicable and pointless because it does not enable
21
them to sue Iran for the 1979 hostage taking is simply not
persuasive.
Second, plaintiffs argue that § 1605A’s “identification of
plaintiffs would be utterly without purpose” because a conferral
of subject matter jurisdiction without creation of a private
right of action would be meaningless, effectively leaving
plaintiffs in the same position they were after the enactment of
§ 626(c). Pls.’ Opp’n at 2. However, plaintiffs fail to
acknowledge that the D.C. Circuit considered and rejected the
identical argument in Roeder I. There, the Circuit held that
§ 626(c)’s conferral of subject matter jurisdiction was not “a
futile thing” because it gave plaintiffs the opportunity to
argue issues of substantive law, even if they did not ultimately
prevail on those issues. 333 F.3d at 238. The same holds true
here. Section 1083 of the NDAA repeals §§ 1605(a)(7) and 626(c)
and replaces them with a new statute – § 1605A. See, e.g., In
re: Iran Terrorism Litig., 659 F. Supp. 2d at 58. In choosing
to include the repealed language of § 626(c) in the new statute,
Congress affirmed its intent to remove Iran’s sovereign immunity
with respect to plaintiffs, and to permit the courts to continue
to grapple with these issues on their merits. This does not
mean, however, that Congress created a private right of action
for the plaintiffs.
22
In a related argument, plaintiffs maintain that
§ 1605A(a)(2)(B) was a direct response to Roeder I, and, citing
Boumediene v. Bush, they admonish this Court to respect the
“ongoing dialogue between and among the branches of Government.”
Pls.’ Opp’n at 6, 9 (quoting Boumediene, 553 U.S. at 738).
Plaintiffs offer no support for this argument. Moreover, they
fail to acknowledge the fact that (i) five years passed between
Roeder I and the NDAA; and (ii) during those five years
legislators tried - and failed - to pass legislation that would
have responded to Roeder I by expressly abrogating the Algiers
Accords. See Section I.B supra. Moreover, even if the NDAA was
intended as a direct response to Roeder I, it does not mean that
it would be an effective one: Congress directly responded to
Roeder I by passing section 626(c) while the litigation was
ongoing, and both this Court and the D.C. Circuit found that
response was insufficient to abrogate the Algiers Accords and
change the outcome of the litigation.
Turning to the text of the statute, plaintiffs argue that
the opening phrase of § 1605A(a)(2) “[t]he Court shall hear a
claim under this section if --” means that Congress
unambiguously created a cause of action for plaintiffs. Pls.’
Opp’n 7-12. However, plaintiffs do not address the arguments set
forth above that the text and structure of the statute as a
whole clearly separate jurisdictional prerequisites from the
23
elements of a private right of action. See, e.g., U.S. Nat’l
Bank of Oregon, 508 U.S. at 455; King v. St. Vincent's Hosp. 502
U.S. 215, 221 (1991) (enunciating the “cardinal rule that a
statute is to be read as a whole, since the meaning of statutory
language, plain or not, depends on context. Words are not
pebbles in alien juxtaposition; they have only a communal
existence; and not only does the meaning of each interpenetrate
the other, but all in their aggregate take their purport from
the setting in which they are used. . . .”) (internal citations
and quotations omitted). Plaintiffs rely on a number of
attorneys’ fees cases for the proposition that the phrase “under
this section” unambiguously creates a cause of action. Pls.’
Opp’n at 7-8 (citing Ardestani v. INS, 502 U.S. 129, 134 (1991);
Blackman v. Dist. of Columbia, 456 F.3d 167, 176-77 (D.C. Cir.
2006); St. Louis Fuel and Supply Co., Inc. v. F.E.R.C., 890 F.2d
446 (D.C. Cir. 1989)). These cases are inapposite. The
existence of a cause of action was not questioned in any of the
cases plaintiffs cite; the parties had litigated the merits of
the underlying cause of action, and the only question was
whether fees should be awarded “under” the underlying statutes.
Id. Even if these cases could be interpreted to argue that the
ubiquitous phrase “under this section” connotes a substantive
cause of action in some circumstances, they in no way support
plaintiffs’ claim that the language unambiguously requires such a
24
conclusion.
For the foregoing reasons, the Court finds that
§ 1605A(a)(2)(B) does not unambiguously create a cause of action
for plaintiffs to sue Iran, nor does it contain clear
Congressional intent to abrogate the Algiers Accords.
C. Sections 1605A(c) and 1083(c)(3) Together do not
Unambiguously Create a Cause of Action for Plaintiffs.
The second question at issue is whether § 1605A(c), which
undoubtedly creates a cause of action for certain victims of
terrorism, includes plaintiffs in its purview. After careful
consideration, the Court finds that the dispositive legal issue
presented is precisely the same as in Roeder I. Once again,
“[t]his Court is faced with an arguably ambiguous statutory
scheme, one interpretation of which provides a cause of action
[for plaintiffs] against Iran and conflicts with the Algiers
Accords. This Court may therefore allow plaintiffs to proceed .
. . only if Congress has adequately expressed the requisite
clear intent to abrogate the Algiers Accords.” 195 F. Supp. 2d
at 171. And once again, this Court finds that the text of the
statutory provisions do not “contain the type of express
statutory mandate sufficient to abrogate an international
executive agreement,” nor does the legislative history contain
“clear statements of Congressional intent to specifically
abrogate the Algiers Accords.” Id. at 177. Accordingly, this
25
Court is unable to find that the executive or the legislative
branch has acted clearly and decisively to enable the Court to
grant plaintiffs the relief they seek.
Section 1605A(c) creates a new cause of action in certain
instances as follows:
(c) PRIVATE RIGHT OF ACTION: A foreign state that is
or was a state sponsor of terrorism as described in
subsection (a)(2)(A)(i) [of section 1605A] . . . shall
be liable to . . . a national of the United States . .
. for personal injury or death caused by acts
described in subsection (a)(1) [of section 1605A] of
that foreign state . . . for which the courts of the
United States may maintain jurisdiction under this
section for money damages.
Subsection (a)(2)(A)(i) contains two subsections; only one,
(a)(2)(A)(i)(II) applies to this litigation. Subsection
(a)(2)(A)(i)(II) defines a foreign state as a state sponsor of
terrorism if:
(II) [I]n the case of an action that is refiled under
this section [1605A] by reason of section
1083(c)(2)(A) of the National Defense Appropriations
Act for Fiscal Year 2008 or is filed under this
section by reason of section 1083(c)(3), the foreign
state was designated as a state sponsor of terrorism
when the original action or the related action under
section 1605(a)(7) (as in effect before the enactment
of this section) . . . was filed . . .
(emphasis added). The parties agree that Roeder II was not
filed “by reason of 1083(c)(2)(A)”; therefore only § 1083(c)(3)
applies in this case. Section 1083(c)(3) reads:
26
(c) APPLICATION TO PENDING CASES.
[. . .]
(3) RELATED ACTIONS.--If an action arising out of an
act or incident has been timely commenced under
section 1605(a)(7) of title 28, United States
Code . . . any other action arising out of the
same act or incident may be brought under section
1605A of title 28, United States Code [this
section], if the action is commenced not later
than the latter of 60 days after—
(A) the date of the entry of judgment in the
original action; or
(B) the date of the enactment of this Act [Jan.
28, 2008].
Accordingly, plaintiffs possess a private right of action under
§ 1605A(c) if and only if Roeder I qualifies as a “related
action” under § 1083(c)(3).
Plaintiffs argue that Roeder I unambiguously qualifies as a
related action under § 1083(c)(3). The government counters that
it is at least equally plausible to interpret the statute’s
“related action” provision to require that Roeder I have been
pending when the NDAA was enacted. Because Roeder I was not
pending, the government argues, plaintiffs cannot meet their
burden to show § 1083(c)(3) unambiguously provides them with a
cause of action against Iran. Gov’t Mem. 14. The Court agrees
with the government that the statute is ambiguous as to what
constitutes a “related action” under § 1083(c)(3), and for the
27
reasons that follow, holds that Congress did not create an
unambiguous cause of action for these plaintiffs.
i. The Government’s Claims
Beginning with the proposition that “the statute is
anything but a model of clarity,” the government argues that the
structure and text of § 1083(c) suggest that Roeder I cannot be
considered a “related action” under § 1083(c)(3). Gov’t Mem.
14. The government first considers the heading of § 1083(c):
“Application to Pending Cases.” Section 1083(c)(3) is a subset
of the “Pending Cases” section; thus, to be considered a
“related case” under § 1083(c)(3), the original action (to which
the new case is being related) must have been “pending” as of
“the date of the enactment of this Act [the NDAA] [Jan. 28,
2008].” 28 U.S.C. § 1083(c)(3)(B).4 Roeder I was dismissed in
2003, therefore, it was not pending in 2008 and cannot be
considered a “related action” to Roeder II.
The government also relies on the statute’s use of the past
perfect tense to describe original actions to which new cases
may be considered related under § 1083(c)(3). The statute
provides that new cases may be considered related to older
4
Plaintiffs do not argue that Roeder II may be brought under
§ 1083(c)(3)(A); that would require that Roeder II have been
commenced within 60 days of the date of judgment in the original
action – Roeder I. Roeder II was not filed until approximately
five years after the D.C. Circuit’s decision dismissing Roeder
I. Section 1083(c)(3)(A) is therefore inapposite.
28
actions, “[i]f [the original] action arising out of an act or
incident has been timely commenced.” § 1083(c)(3) (emphasis
added). The government argues that the use of “has been”
supports the interpretation that “a new action cannot be deemed
‘related’ unless the original action (Roeder I) was pending”
when § 1083 was enacted. Gov’t Mem. at 17. The government
claims the D.C. Circuit endorsed this reading of the statute in
Simon v. Republic of Iraq. In Simon, the D.C. Circuit
considered the meaning of § 1083(c)(3) but did not directly
address the question presented here. The Simon court
interpreted the NDAA to permit “a pending original action [to]
be[] refiled . . . by reason of section 1083(c)(2)(A)” while
separately allowing “a new action [to] be[] filed . . . by
reason of section 1083(c)(3) if a pending related action had
been timely commenced.” 529 F.3d at 1193 (citations omitted).
The Court went on to state:
[This] implies the Congress understood that the courts
would retain jurisdiction over the original “related
action” described in § 1083(c)(3). That explains why
the 60-day period for invoking § 1083(c)(2) began with
the enactment of the NDAA, whereas the 60-day period
in § 1083(c)(3) may run from the date of the “entry of
judgment” in the “related action,” which could be well
after the enactment of the NDAA.
Id. According to the government, this language suggests that
the Simon court read § 1083(c)(3) to signify that a new action
29
could only be filed if a related action had been timely
commenced and was still pending.
Given these doubts regarding the proper interpretation of
the statute, the government argues that it would be improper to
interpret the statute as abrogating a binding international
executive agreement, particularly in light of the absence of any
legislative history relating to Roeder I or the Algiers Accords.
Gov’t Reply at 15-17. The government also notes that Congress
is capable of drafting straightforward legislation explicitly
abrogating the Algiers Accords, and cites as examples (1) the
2001 legislation, § 626(c), which clearly and unequivocally
conferred jurisdiction over this action; and (2) bills such as
those which have been introduced but not passed over the years
and which, by their terms, abrogate the Algiers Accords. See
CONGRESSIONAL RESEARCH SERV., SUITS AGAINST TERRORIST STATES BY
VICTIMS OF TERRORISM (2008) at CRS 31-32. The fact that
Congress has not acted clearly or decisively here means
plaintiffs’ claim must be dismissed. Gov’t Mem. 17-18.
ii. Plaintiffs’ Claims
Plaintiffs advance a number of arguments why § 1605A(c) and
§ 1083(c)(3) should be construed to provide plaintiffs with a
cause of action against Iran. As set forth below, although the
Court finds plaintiffs’ interpretations plausible, the
government’s interpretations are as well. And as set forth
30
above, the Court may not rely on plausibility to abrogate a
binding international agreement; unless the statute
unambiguously conflicts with the Algiers Accords, the Court must
interpret the statute to avoid the conflict. Accordingly, the
Court cannot find that the 2008 legislation permits plaintiffs
to sue Iran.
Plaintiffs first argue that a comparison of § 1083(c)(2)
and § 1083(c)(3) compel the conclusion that Roeder I is a
“related” action under § 1083(c)(3).5 Plaintiffs note that the
5
The parties agree that § 1083(c)(2) does not apply to this
case. However, because the plaintiffs rely on it for the
purposes of comparison to § 1083(c)(3), it is set forth here in
relevant part:
(2) PRIOR ACTIONS.
(A) In general. - With respect to any action that -
(i) was brought under section 1605(a)(7) of
title 28, United States Code . . . before
the date of the enactment of this Act [Jan.
28, 2008],
(ii) relied upon [] such provision as creating a
cause of action,
(iii) has been adversely affected on the grounds
that . . . [§ 1605(a)(7)] fail[s] to create
a cause of action against the state, and
(iv) as of such date of enactment [Jan. 28,
2008], is before the courts in any form,
including on appeal or motion under rule
60(b) of the Federal Rules of Civil
Procedure,
31
text of § 1083(c)(2) explicitly governs actions which were
“pending before the Courts in any form, including on appeal or
motion under Rule 60(b).” Section 1083(c)(3), however, does not
include the same, explicit language that a “related action” be
“pending before the courts” on the date of the enactment of the
NDAA. Plaintiffs claim that “the presence of a pending-action
limitation in the text of § 1083(c)(2), and its absence in §
1083 (c)(3), makes clear that § 1083(c)(3) is not limited to
actions relating to pending actions.” Pls.’ Opp’n 20 (citing
Russello v. United States, 464 U.S. 16, 23 (1983) (“where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”)).
that action, and any judgment in the action shall, on
motion made by plaintiffs to the United States
district court where the action was initially brought,
or judgment in the action was initially entered, be
given effect as if the action had originally been
filed under section 1605A(c) of title 28, United
States Code.
(B) Defenses waived. - The defenses of res judicata,
collateral estoppel, and limitation period are
waived--
(i) in any action with respect to which a
motion is made under subparagraph (A) . . .
32
After careful consideration, the Court concludes that the
general presumption articulated in Russello should not govern in
this case. As the Supreme Court has made clear, “[t]he Russello
presumption – that the presence of a phrase in one provision and
its absence in another reveals Congress’ design – grows weaker
with each difference in the formulation of the provisions under
inspection.” City of Columbus v. Ours Garage and Wrecker
Service, Inc., 536 U.S. 424, 435-436 (2002)); see also Clay v.
U.S., 537 U.S. 522, 532 (2003) (same); Field v. Mans, 516 U.S.
59, 67 (1995) (declining to “elevate[] [the Russello
presumption] to the level of an interpretive trump card”).
Reading § 1083(c)(2) and § 1083(c)(3) as integrated parts
of a whole, it is clear that the two subsections serve distinct
purposes. Section (c)(2) does not authorize the filing of new
cases. Rather, it permits plaintiffs in older cases to reframe
those same actions under § 1605A so long as they are still
before the courts in some form, and expressly waives the
defenses of statute of limitations, res judicata, and collateral
estoppel. Section 1083(c)(3), on the other hand, permits
“related actions” to be filed, even if they are wholly new, as
long as they relate to timely filed cases because they “arise
out of the same act or event” as the first-filed case. Stated
another way, § 1083(c)(2) governs circumstances in which
already-filed cases may change course, mid-stream, to proceed
33
under § 1605A, while § 1083(c)(3) governs circumstances in which
entirely new actions may be filed as a result of the new
legislation, even if such actions would otherwise be untimely.6
In keeping with the distinctly different purposes of the two
sections, § 1083(c)(3) borrows no probative language from §
1083(c)(2). To the contrary, the language, text and structure
of the two sections have little to nothing in common. In short,
the purpose and the language of § 1083(c)(2) are clearly
distinguished from the purpose and the language of § 1083(c)(3).
Therefore, the Court cannot conclude that the presence of the
phrase “pending before the Courts in any form” in § (c)(2) but
not § (c)(3) means that § (c)(3) unambiguously permits
plaintiffs to file a new action five years after the action to
which it was related ceased to exist before the courts.
Plaintiffs next argue that the government’s reading of
§ 1083(c) would render § (c)(3)(B) superfluous of § (c)(3)(A).
6
In this regard, the Court notes that the underlying
circumstances of the two Roeder cases may have more in common
with § 1083(c)(2) than with § 1083(c)(3). The Roeder II
complaint is substantially identical to the Roeder I complaint;
the only substantive difference is the statutory section under
which plaintiffs allege a cause of action. Compare Roeder I,
Doc. No. 3, First Am. Compl. (relying on former § 1605(a)(7) for
cause of action), with Roeder II, Doc. No. 1, Complaint (relying
on § 1605A for cause of action). Accordingly, it could be
argued that the Roeder II plaintiffs are effectively refiling
the same action, and are citing § 1083(c)(3) in an attempt to
avoid the otherwise-fatal restrictions of § 1083(c)(2).
34
Section 1083(c)(3) provides that a related action is timely
filed:
if the action is commenced not later than the latter
of 60 days after
(A) the date of entry of judgment in the original
action; or
(B) the date of enactment of this Act.
Plaintiffs claim that if the Court accepts the government’s
argument that all original cases had to be “pending” when the
NDAA was enacted, “then there would be no need to include clause
(B). Rather, the timeliness of filing test would always run
from entry of final judgment in the pending action, which would
necessarily be more than sixty days later than the date of the
NDAA’s enactment.” Pls.’ Opp’n at 23. Accordingly, plaintiffs
argue that the government’s reading of the statute cannot be
reasonable because it would require the Court to construe one of
its clauses as superfluous or void. Id. (citing TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001)).
Plaintiffs take too cramped a view of the term “entry of
judgment.” § 1083(c)(3)(A). The Federal Rules of Civil
Procedure provide multiple avenues by which a court may enter a
judgment. See, e.g., Fed. R. Civ. P. 50, 52, 54(a), 55(b), 56,
57. The Federal Rules of Appellate Procedure and Supreme Court
Rules also provide for entry of judgment under additional
35
circumstances. See, e.g., Fed. R. App. P. 36.; Sup. Ct. R. 41 -
44. The Court can easily envision several scenarios where entry
of judgment in the original, related case could have been
entered far in advance of the enactment of the NDAA – for
instance, the district court could have entered judgment and the
case could still be pending on appeal, pursuant to a motion to
alter or amend under Fed. R. Civ. P. 59(e), or on a motion for
relief from judgment under Fed. R. Civ. P. 60(b). In any of
these situations, the latter date for purposes of timely filing
the new, related action under § 1083(c)(3) would be “sixty days
after the enactment of [the NDAA]”, § 1083(c)(3)(B), thus giving
meaning and effect to both subsections.
Finally, plaintiffs argue that the use of the present
perfect tense in § 1083(c)(3) – “[i]f an action arising out of
an act or incident has been timely commenced” - does not
indicate that a new action cannot be deemed “related” unless the
original action (Roeder I) was pending at the time § 1083 was
enacted. Pls.’ Opp’n 28. Plaintiffs cite Barrett v. United
States, 423 U.S. 212 (1976) for the proposition that “has been”
denotes an action that has been completed. In Barrett, the
Court found that the term “has been shipped” encompassed items
that had been shipped and completed their journey in interstate
commerce as well as those items that were still in the process
of being shipped. Thus, plaintiffs argue, the phrase “has been
36
timely commenced” must include not only actions that were still
pending when the NDAA was enacted, but also actions such as
Roeder I, which were completed at that time. Pls.’ Opp’n at 28-
29. The United States counters that Barrett does not change the
analysis. Gov’t Reply at 12, n.9. The government argues that
even if the present perfect tense connotes an act that has been
completed, the phrase in § 1083(c)(3) “has been commenced” would
simply mean that commencement, or filing of the action, has been
completed. Id. It does not compel the conclusion that the
entire case can be completed and a related action may still be
filed under § 1083(c)(3). Id.
The Court finds that the phrase “has been commenced” does
not resolve the textual ambiguity in the statute. The phrase
may be reasonably read to limit § 1083(c)(3)’s reach to cases
related to those which were timely filed and are still pending,
as the government argues, or to encompass cases related to any
and all cases that were timely filed in the first instance,
regardless of whether they were still pending when the NDAA
became law, as plaintiffs argue. However, the Court need not
resolve these questions here: plaintiffs cannot prevail unless
they can show that theirs is the only reasonable reading of the
statute. For the reasons set forth above, they cannot.
37
D. The Record is Devoid of Any Clear Evidence of
Congressional Intent to Abrogate the Algiers Accords.
Because the NDAA is ambiguous, “this Court must not
interpret [it] to conflict with the Algiers Accords absent a
clear intent to abrogate that agreement by Congress.” Roeder I,
195 F. Supp. 2d at 175. As set forth above,
[L]egislative silence is not sufficient to [find clear
intent to] abrogate a treaty or a bilateral executive
international agreement. When a later [ambiguous] statute
conflicts with an earlier agreement, and Congress has
neither mentioned the agreement in the text of the statute
nor in the legislative history of the statute, the Supreme
Court has conclusively held that it can not find the
requisite Congressional intent to abrogate.
Id. (internal quotations and citations omitted.) It is
undisputed that the Algiers Accords is neither mentioned in the
statute, nor discussed or even alluded to in the legislative
history. Nevertheless, plaintiffs contend that even if the
statute does not unambiguously create a cause of action for them
to sue Iran, the Court should find that the legislative history
provides clear congressional intent to abrogate the Algiers
Accords. See Pls.’ Opp’n 17-18 (“Section 1083 was not
overlooked by Congress or the President.”) In support of this
statement, they note that the NDAA’s language regarding Roeder I
survived a presidential veto and subsequent negotiations over
§ 1083. They claim that “the intense attention the political
branches directed to this very section,” demonstrates that the
38
other two branches of government clearly intended § 1083 must
abrogate the Algiers Accords. Pls.’ Opp’n 18.
This argument is easily resolved. A review of the
legislative history reveals that none of the attention focused
on § 1083 had anything to do with the provisions at issue in
this litigation. The D.C. Circuit accurately summarized the
history of the NDAA’s passage as follows: “President Bush
sought to ‘pocket veto’ the bill because he believed § 1083
would threaten the reconstruction of Iraq. . . . Congress
subsequently passed a revised version of the NDAA, which
included a new provision (§ 1083(d)) that authorized the
President, upon making certain findings, to ‘waive any provision
of [§ 1083 of the NDAA] with respect to Iraq. The President
signed that bill into law.’” Simon, 529 F.3d at 1190 (citations
omitted). The legislative history adds nothing to support
plaintiffs’ argument. To the contrary, as the government
correctly notes, “the fact that the political branches gave
Section 1083 this allegedly ‘intense attention’, without once
even mentioning the Algiers Accords or the 1979 Iranian hostage
taking, is compelling evidence that Congress did not intend to
repeal the Accords or to offer the Roeder I plaintiffs a cause
of action, and that the President did not interpret the NDAA to
include an abrogation of the Accords.” Gov’t Reply at 15
39
(quoting Pls.’ Opp’n at 18) (emphasis in original). The Court
concurs.
As this Court found in Roeder I, “[a]n explicit expression
of intent to abrogate a binding international agreement
requires, at a minimum, an acknowledgment of the existence of
that agreement[.]” Roeder I, 195 F. Supp. 2d at 182. In Roeder
I, this Court was faced with legislative history which directly
referenced that case and alluded to the Algiers Accords.
Nevertheless, the D.C. Circuit held that because the relevant
legislative history was contained in a “joint explanatory
statement,” a form of committee report which is never subject to
a Congressional vote, it was insufficient to abrogate the
Algiers Accords. See Roeder I, 333 F.3d at 236-238. In Roeder
II, plaintiffs’ arguments for clear Congressional intent are
even weaker than Roeder I; the legislative history of the NDAA
is utterly silent with respect to either the Algiers Accords or
this case. Accordingly, the Court finds no clear Congressional
intent to abrogate the executive agreement.
E. Chief Judge Royce C. Lamberth’s Opinion Does Not Alter
This Court’s Analysis.
Finally, the Court turns to plaintiffs’ argument that Chief
Judge Lamberth’s opinion in In re Islamic Republic of Iran
Terrorism Litigation, 659 F. Supp. 2d 31 (D.D.C. 2009), brought
to the Court’s attention by plaintiffs as supplemental
40
authority, should guide this Court’s analysis and conclusions.
The Court gave the parties the opportunity to fully brief the
import of the opinion and, after careful consideration of the
opinion and the parties’ arguments, concludes that the
supplemental authority does not alter this Court’s analysis.
Plaintiffs principally rely on In re Iran Terrorism
Litigation for its conclusion that § 1083(c)(3) allows terrorism
victims to file “related cases” within 60 days after the NDAA’s
enactment, even if the original case to which the new case
relates was no longer pending. Specifically, plaintiffs point
to that court’s determination that “the heading of § 1083(c) –
‘Application to Pending Cases’ - is something of a misnomer
because, in reality, § 1083(c) may encompass cases that are not
pending at all - meaning prior actions that have since reached
final judgment and are no longer before the courts in any form.”
Id. at 63. Plaintiffs argue that Chief Judge Lamberth’s
interpretation of § 1083(c)(3), which comports with plaintiffs’
interpretation, “makes clear that the current opposition is
without any statutory basis.” Pls.’ Supp. Auth. Mem. at 10.
The Court is unpersuaded by the plaintiffs’ selective
reading of In re Iran Terrorism Litigation. While the cases
addressed in that opinion all name the Islamic Republic of Iran
as a state sponsor of terrorism, none of the cases arises out of
the 1979 hostage taking and consequently none of them is
41
governed by the Algiers Accords. Notwithstanding any
conclusions Chief Judge Lamberth may have reached regarding the
meaning of § 1083(c)(3), he - correctly - went to great pains to
distinguish the cases before him from the case before this
Court. As set forth above, Chief Judge Lamberth found that new
“related actions” could be filed against Iran arising out of the
same acts or incidents as had been originally litigated before
him, even if the original actions were no longer pending when
the NDAA was enacted. However, he explained that the standard
the Roeder plaintiffs must meet in order to sue Iran is
different.
Congress [must have] clearly expressed its intent to
abrogate the Algiers Accords, as is required before
Courts will hold that an international agreement is
abrogated by a subsequent act of Congress. . . . Judge
Sullivan [] went to some length in his [Roeder I]
opinion to explain that, while our Court cannot ignore
or refuse to give effect to the Algiers Accords, both
Congress and the President have the authority to
abrogate them, if they so desire. The opinion could
not have been any clearer on that point. To date,
however, neither branch has taken such action; the
political consequences are likely too great, but that
is precisely why it is a decision best left to the
political branches, and not the Courts.
659 F. Supp. 2d at 88-89 (internal quotations and citations
omitted) (emphasis added). In short, the In re Iran Terrorism
Litigation court recognized that while the NDAA granted
significant new rights and privileges to terrorism victims in
42
general, the 1979 hostage victims do not fall under the category
of terrorism victims in general. The opinion also recognized
that absent clear abrogation of the Algiers Accords, which the
NDAA did not accomplish, the plaintiffs are in the same position
now as they were prior to the enactment of the NDAA. Id. at 89-
90. Plaintiffs’ supplemental authority does not change this
Court’s analysis; it reinforces it.
As discussed in Section III.C. supra, this Court does not
necessarily disagree with Chief Judge Lamberth that § 1083(c)(3)
could support the reading urged by plaintiffs. However, as set
forth throughout, the language of the statute does not
unambiguously require such a conclusion with respect to the 1979
hostage victims, and thus does not abrogate the Algiers Accords.
IV. CONCLUSION
In this case, as in Roeder I, much time and effort have
been expended parsing esoteric phrases of statutory text and
legislative history in an effort to discern the intent of
Congress. As in Roeder I, this Court is acutely sensitive to
the indescribable horror of plaintiffs’ suffering. See Roeder
I, 195 F. Supp. 2d at 145 (“Were this Court empowered to judge
by its sense of justice, the heart-breaking accounts of the
emotional and physical toll of those 444 days on plaintiffs
would be more than sufficient justification for granting all the
relief that they request.”) The principles that guided the
43
Court’s decision in Roeder I, however, are fundamental to our
system of government and the fair administration of justice.
They are equally binding on this Court now, and they bear
repeating.
Lest this Court’s decision be viewed as denying
plaintiffs a remedy for the horrible wrongs they have
suffered simply because Congress failed to use the
proper choice of words, it is important to reiterate
the values that are served by an abrogation doctrine
that requires Congress to make its intent clear. The
spheres of power of our co-equal branches of
government can at times overlap. When such overlap
occurs, and the wills of two branches are in conflict,
the Constitution sets forth the rules for deciding
which branch gets to trump the will of the other. In
this case, by virtue of his power to direct the
foreign affairs of this country, the President clearly
has the authority to enter into international
agreements. Congress, however, clearly has the
corresponding right to abrogate the agreement reached
by the President if it so wishes. Because of the
respect owed to each co-equal branch of government,
the courts must require that Congress make its intent
clear, either by legislating unambiguously or
accompanying ambiguous statutes with clear expressions
of intent. Any other rule would allow the courts, by
inference and interpretation, to impermissibly assume
the legislative role.
Roeder I, 195 F. Supp. 2d at 183 (internal citation omitted).
As discussed throughout this opinion, Congress has failed to
enact plain, straightforward language creating a cause of action
for plaintiffs; nor has Congress clearly expressed its intent to
abrogate the Algiers Accords. Regrettably, this Court must
conclude as a matter of law that the plaintiffs cannot pursue a
44
lawsuit for damages for the human suffering and atrocities
inflicted upon them by the Islamic Republic of Iran.
For the foregoing reasons, it is hereby ORDERED that the
United States’ motion to dismiss is GRANTED as plaintiffs have
failed to state a claim upon which this Court can grant relief.
Plaintiffs’ motion for default judgment as to liability is
DENIED as moot. This case is therefore DISMISSED. An
appropriate Order accompanies this memorandum opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
September 30, 2010
45
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Case: 11-15129 Date Filed: 08/06/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15129
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cv-00037-WLS
JOSEPH HOWARD, III,
ANNIE HOWARD,
WENDELL WILLIAMS,
Plaintiffs-Appellants,
versus
COUNTRY CLUB ESTATES HOMEOWNERS
ASSOCIATION, INC., et al.,
Defendants,
CITY OF ALBANY, GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 6, 2012)
Before BARKETT, PRYOR, and COX, Circuit Judges.
Case: 11-15129 Date Filed: 08/06/2012 Page: 2 of 4
PER CURIAM:
Joseph Howard, III, Annie Howard, and Wendell Williams (the “Plaintiffs”)
filed this 42 U.S.C. § 1983 action after the City of Albany, Georgia (the “City”)
rezoned property owned by Joseph Howard, III. According to the Plaintiffs, this
rezoning made it impossible for them to complete a planned development project on
the property. The complaint asserts four counts against the City and other Defendants
who are not parties to this appeal. Count One alleges that the Defendants violated
Plaintiffs’ substantive due process rights. Count Two alleges a procedural due
process violation. Count Three claims that a municipal policy violated the Plaintiffs’
due process rights and Count Four claims that the Defendants conspired to violate the
Plaintiffs’ due process rights.
The parties filed cross-motions for summary judgment. The district court
granted the City’s motion for summary judgment, denied the Plaintiffs’ motion, and
entered judgment in favor of the Defendants. Plaintiffs appeal.
As we construe the Plaintiffs’ brief, it presents four issues: (1) whether the
district court erred by concluding that the Plaintiffs did not assert a ripe takings claim
under the Fifth Amendment; (2) whether the district court erred by deciding that the
Plaintiffs failed to put forth evidence to support a regulatory takings claim; (3)
whether the district court erred by finding that the City never issued the Plaintiffs a
2
Case: 11-15129 Date Filed: 08/06/2012 Page: 3 of 4
building permit for the development project; and (4) whether the Plaintiffs had a
vested right to develop the property protected by the due process clause.
We note at the outset that the Plaintiffs have waived any challenge to the
district court’s entry of summary judgment on Counts One, Three, and Four of the
complaint. The Plaintiffs’ brief makes passing reference to the district court’s entry
of summary judgment in favor of the Defendants on the Plaintiffs’ substantive due
process claim. This reference appears in the Plaintiffs’ argument regarding regulatory
takings and the brief does not develop any arguments regarding the substantive due
process claim. Therefore, any challenge to the entry of summary judgment on the
substantive due process claim has been waived. See Farrow v. West, 320 F.3d 1235,
1242 n.10 (11th Cir. 2003) (citations omitted). Similarly, Plaintiffs do not make any
argument regarding their claim of conspiracy or their claim that there was an
unconstitutional municipal policy. (See Appellants’ Br. at 1-2.) So these arguments
are also waived. Farrow, 320 F.3d at 1242 n.10.
The district court also properly rejected the Plaintiffs’ Fifth Amendment
takings claim. We doubt whether any takings claim was properly alleged, but in any
event, a takings claim was not ripe for the reasons stated in the district court’s
opinion. (See Dkt. 93 at 7, 8 & 9.)
3
Case: 11-15129 Date Filed: 08/06/2012 Page: 4 of 4
The Plaintiffs’ brief also argues that they had a vested right to develop the
property because the City had issued a construction permit for the development.1
However, the Plaintiffs have failed to cite to any portion of the record to show that
they held a construction or building permit for the development. Therefore, we find
no error in the district court’s finding that the City never issued the Plaintiffs a
building permit. Furthermore, a procedural due process claim under § 1983 requires
an allegation and proof of constitutionally inadequate process. See Grayden v.
Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d
175, 177 (11th Cir. 1994)). Thus, even if the Plaintiffs had a vested property
interested protected by Georgia law, their claim fails because they did not show that
they received inadequate process. The district court did not err by entering summary
judgment on this claim.
Finding no error in the district court’s entry of summary judgment in this case,
we affirm.
AFFIRMED.
1
To the extent the Plaintiffs seek to use Georgia’s vested rights doctrine as a basis for
injunctive relief independent from their § 1983 claims, they failed to assert this claim in their
complaint. Therefore, we will not consider the doctrine as an independent basis for relief.
4
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675 F.Supp. 1137 (1987)
Joan P. JOHNSON, Plaintiff,
v.
Otis R. BOWEN, Secretary of Health and Human Services, Defendant.
Civ. No. F 87-127.
United States District Court, N.D. Indiana, Fort Wayne Division.
December 3, 1987.
Barkan & Neff, Columbus, Ohio, Floyd Ramsier, Fort Wayne, Ind., for plaintiff.
*1138 David H. Miller, Asst. U.S. Atty., Fort Wayne, Ind., for defendant.
ORDER
WILLIAM C. LEE, District Judge.
This is an action for judicial review of a final decision of the defendant Secretary of Health and Human Services denying plaintiff's application for the establishment of a period of disability under section 216(i) of the Social Security Act and for disability insurance benefits as provided by section 223 of the Act. 42 U.S.C. § 416(i); 42 U.S.C. § 423. Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the case for a rehearing." It also provides, "[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...." 42 U.S.C. § 405(g).
The law provides that an applicant for disability insurance benefits must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months...." 42 U.S.C. § 416(i)(1); 42 U.S. C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It it not enough for plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (4th Cir. 1962); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill.1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir.1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir.1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the Secretary's findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir.1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir.1982); 42 U.S.C. § 405(g). "Substantial evidence is defined as `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir.1984) quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir.1977). "If the record contains such support [it] must [be] affirmed, 42 U.S.C. § 405(g), unless there has been an error of law." Garfield, supra at 607; see also Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir.1980).
In the present matter, after consideration of the entire record, the ALJ made the following findings:
1. The claimant met the disability insured status requirement of the Act on August 29, 1980, the date the claimant stated she became unable to work, and continues to meet them through December 31, 1985, but not thereafter.
2. The claimant has not engaged in substantial gainful activity since August 29, 1980.
3. The medical evidence establishes that the claimant has severe fibromyalgia, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's testimony regarding her symptoms and limitation of function seemed somewhat exaggerated, was not well supported by the medical evidence as a whole and was less than fully credible.
5. The claimant has the residual functional capacity to perform work-related *1139 activities except for work involving standing or walking for long periods of time, lifting and carrying weights exceeding 10 pounds and constant repetitive use of the hands. (20 CFR 404.1545).
6. The claimant's past relevant work as a specification writer as that job is usually performed in the national economy did not require the performance of work-related activities precluded by the above limitation(s) (20 CFR 404.1565).
7. The claimant's impairment does not prevent the claimant from performing her past relevant work.
8. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of the decision (20 CFR 404.1520(e)).
(Tr. 26-27). Based upon those findings, the ALJ determined that plaintiff was not entitled to a period of disability or disability insurance benefits. The Appeals Council denied plaintiff's request for review on April 1, 1987. This appeal followed.
Plaintiff filed her motion for summary judgment on September 17, 1987, alleging that the Secretary erred in denying benefits and raises three arguments in support of that contention. Defendant Secretary filed a cross-motion for summary judgment on that same date. Upon full review of the record in this cause, the court is of the view that substantial evidence supports the ALJ's conclusion and accordingly the decision of the Secretary denying benefits will be affirmed.
A five step test has been established to determine whether a claimant is disabled. The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:
The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe?" (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops inquiry and leads to a determination that the claimant is not disabled.
Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir.1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir.1984). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
At the time of the supplemental administrative hearing[1] plaintiff was 54 years old and had a high school education. (Rec. 114). Her past relevant work experience included employment as a receptionist, secretary, and most recently as a specification writer. (Rec. 117-18, 139). As a specification writer, plaintiff was required to read blueprints and use a micrometer. (Rec. 118-19). That position required plaintiff to alternate between sitting and standing. Plaintiff was also required to lift eight pound research books in performing her employment as a specification writer.
Plaintiff left her employment as a specification writer due to pain in her hands and fingers which was diagnosed as being fibromyalgia. Plaintiff asserts that her entire body now hurts and any minimal exertion is exhausting. (Rec. 124). She also stated that she wears wrist and hand splints to minimize movement and pain. Plaintiff's medication consists of Meclomen, Xanax and extra strength Tylenol which does not completely relieve her pain. (Rec. 128, 138, 360).
The administrative record in this cause contains numerous medical reports, many of which were thoroughly overviewed with respect to plaintiff's previous application for disability insurance benefits. See footnote *1140 1, supra. On September 18, 1981, plaintiff was admitted to St. Vincent Hospital in Indianapolis complaining of generalized constant pain over most of her body. (Rec. 363). A neurological examination was normal. Mild disc narrowing in the cervical and lumbar spine was disclosed through x-rays. Testing for rheumatoid arthritis was negative. A bone scan suggested early arthritic changes in plaintiff's hands. Nerve conduction studies were within normal limits and plaintiff's activities were not restricted. (Rec. 363-64). Similar results were obtained when plaintiff was examined at the Mayo Clinic from April 30, 1982 through May 4, 1982 by C.J. Wilkowski, an internist. During that hospitalization, psychological testing showed a pattern consistent with a conversion reaction. (Rec. 367). Plaintiff was diagnosed as having primary fibromyalgia and heat, massage and exercises were recommended. (Rec. 366-67).
On June 15, 1983, Dr. John Hague, plaintiff's treating rheumatologist, reported that plaintiff had primary fibromyalgia confirmed by the Mayo Clinic. Dr. Hague opined that plaintiff's condition was most severe and that prolonged use of any skeletal muscles would result in significant pain. His opinion was based upon his observation of muscle twitch signs. (Rec. 338). Dr. Hague advised a Disability Determination Service (DDS) examiner that it was his opinion that plaintiff's symptomology of fibromyalgia and fibromyositis equaled § 1.03 (rheumatoid arthritis) of the Listings of Impairments. (Rec. 339). Dr. Henry J. Marciniak reviewed the medical evidence as of January 4, 1984 and determined that plaintiff's fibromyalgia and fibromyositis did not meet or equal the Listings of Impairments. (Rec. 322-23).
In a response to a DDS questionnaire, Dr. Hague, based on an examination conducted May 17, 1984, indicated that plaintiff's fibromyalgia caused plaintiff to experience moderate to severe pain and tenderness in virtually all of her skeletal muscles. Dr. Hague also indicated that plaintiff had responded poorly to muscle relaxants and physical therapy and that plaintiff could not perform fine and gross manipulations on a prolonged basis. Plaintiff also had a mild loss of grip strength although she was able to heel and toe walk, climb stairs and get on and off the examination table without excessive difficulty. (Rec. 341-42).
At the request of the DDS, Dr. Scott Walker, an orthopedist, examined plaintiff on October 4, 1984. Plaintiff complained of diffuse body pain and swelling in her joints. Some degenerative arthritis in plaintiff's thumb joints were observed through x-rays and degenerative changes were also observed in plaintiff's cervical and lumbar spine. The range of motion in plaintiff's cervical spine and in her fingers was reported as within normal limits, although range of motion in plaintiff's lumbar spine and right hip was mild to moderately limited. Plaintiff's gait was normal. Dr. Walker concluded that plaintiff had primary fibromyalgia but that there were no definite neurological deficits. (Rec. 343-46).
Also at the request of the DDS, plaintiff was evaluated by Dr. Terry Parrish, a psychiatrist, on November 17, 1984. Plaintiff denied having any mental impairment. She complained of muscle pain and weakness. Dr. Parrish noted that plaintiff exhibited anger, some hostility and an undercurrent of depression. In his view, however, there were no specific psychiatric abnormalities. Dr. Parrish opined that plaintiff needed some ongoing psychiatric help. (Rec. 348-50).
Dr. Edward Bloemker, another DDS medical adviser, reviewed the medical evidence through November 17, 1984. Dr. Bloemker determined that plaintiff's diagnosis of soft tissue rheumatism and fibromyositis in combination with her psychological problems did not meet or equal the Listings of Impairments. Dr. Bloemker also concluded that plaintiff was capable of performing work requiring a light level of physical exertion as defined by the Dictionary of Occupational Titles. (Rec. 318-20).
In a letter to plaintiff's counsel dated June 4, 1985, Dr. Hague opined that plaintiff possibly met § 12.04 of the Listings of Impairments, functional non-psychotic disorders, and recommended a psychological *1141 follow-up. Dr. Hague indicated that plaintiff could perform activities but would experience difficulty in prolonged activities such as working on an assembly line. (Rec. 368-69). A physical capacity assessment questionnaire submitted by Dr. Hague indicated that he estimated plaintiff could walk for one hour, sit for one hour, lift up to 10 pounds occasionally, reach, grasp, push, pull and perform fine manipulations an operate foot controls occasionally during an eight hour work day. (Rec. 372-74).
Other reports in the record from Dr. Hague dated August 30, 1985, November 17, 1985, and May 28, 1986, all reiterate his diagnosis with respect to plaintiff's fibromyalgia with accompanying soreness and pain. Similar conclusions were reached by Dr. Terry Fenwick, who examined plaintiff at the request of the DDS on August 17, 1985. Dr. Fenwick determined that plaintiff had a condition of fibromyositis and that she "obviously has a complex problem of myositis which is very difficult to treat, remedy or cure." (Rec. 378).
Plaintiff was also seen by Raymond Clausman, a clinical psychologist, on August 16, 1986, at the request of the DDS. Dr. Clausman reported some anxiety but there was no evidence of significant depression or of a severe psychological impairment. There was no evidence of strong hypochondriacal concerns but a mild preoccupation with physical status. (Rec. 395-96). Dr. Clausman observed that "[i]ntellectually, [the plaintiff] is still capable of functioning in a competitive, vocational setting." (Rec. 396). Dr. Clausman determined that the major factor relating to vocational functioning was plaintiff's complaints of physical problems. (Id.).
Also at the request of the DDS, plaintiff underwent a psychiatric evaluation by Prevesh K. Rustagi, on August 19, 1986. Plaintiff complained of generalized aches and pains. Dr. Rustagi reported that plaintiff had normal cognitive functioning with no abnormalities of mood or speech. Her daily activities were restricted by physical symptoms. Dr. Rustagi concluded that while many of plaintiff's complaints may have some psychological components, she did not appear to be suffering from a primary psychiatric disorder. In his view, plaintiff had no significant mental limitations that would preclude her ability to work. (Rec. 399-404).
Apart from the medical evidence in the record, a vocational expert, Merrill C. Beyerl, testified at the supplemental hearing. The vocational expert testified that plaintiff's past work as a specification writer was sedentary and skilled. Although plaintiff would not be able to perform this past work as she actually had performed it due to the extensive writing it required, she was capable of working as a specification writer as it is generally performed in the national economy. The vocational expert also testified that plaintiff would be able to perform other jobs such as receptionist in a hospital, institution or library which did not require excessive use of her hands. (Rec. 147-50).
As indicated previously, plaintiff raises three arguments in which she contends that the ALJ erred in denying benefits. Because the second and third issues are interrelated they will be considered together after a review of the first issue raised by plaintiff.
The plaintiff first argues that the ALJ improperly concluded that plaintiff does not have an impairment which meets or equals the Listings of Impairments in 20 CFR Part 404, Subpart P, Appendix 1. In this vein, plaintiff asserts that she should be found to meet or equal a combination of listings 1.02 and 12.04 because those listings are most closely related to her impairments. Listing 1.02 categorizes active rheumatoid arthritis as a disabling impairment while listing 12.04 deals with affective disorders that are characterized by mood disturbances.
As indicated previously, Dr. Hague in a letter dated January 4, 1984, opined that while plaintiff's condition of fibromyalgia and fibromyositis did not meet any of the Listings of Impairments, the condition was *1142 equal to listing 1.02,[2] the rheumatoid arthritis listing. (Rec. 339). In a June, 1985 letter to plaintiff's counsel, Dr. Hague also opined that plaintiff possibly met the functional non-psychotic disorders listing of 12.04B and suggested the possibility of a psychological or psychiatric examination. (Rec. 369).
Initially, it should be "note[d] that an ALJ is not bound by a doctor's conclusion that a claimant is `disabled because he meets the requirement of a certain listing.'" Waite v. Bowen, 819 F.2d 1356, 1359 (7th Cir.1987). Moreover, there is substantial evidence in the record to support the conclusion that plaintiff did not meet or equal any of the listings in the Listings of Impairments.
Section 1.02 of the listings provides:
1.02 Active rheumatoid arthritis and other inflammatory arthritis.
With both A and B.
A. History of persistent joint pain, swelling, and tenderness involving multiple major joints (see 1.00D) and with signs of joint inflammation (swelling and tenderness) on current physical examination despite prescribed therapy for at least 3 months, resulting in significant restriction of function of the affected joints, and clinical activity expected to last at least 12 months; and
B. Corroboration of diagnosis at some point in time by either.
1. Positive serologic test for rheumatoid factor; or
2. Antinuclear antibodies; or
3. Elevated sedimentation rate; or
4. Characteristic histolic changes in biopsy of synovial membrane or subcutaneous nodule (obtained independent of Social Security disability evaluation).
20 CFR Part 404, Subpart P, Appendix 1, § 1.02. Dr. Hague's opinion that plaintiff's fibromyositis was equal to the foregoing listing is not supported by the objective medical evidence in the record. While Dr. Hague made this diagnosis apparently based on plaintiff's subjective complaints of pain and his observations of a muscle twitch, there is no objective evidence in the record of a persistent history of joint inflammation involving multiple major joints that is corroborated as required by 1.02B. Further, both Dr. Marciniak and Dr. Bloemker, DDS medical advisers, considered the objective medical evidence in the record and determined that plaintiff's diagnosis of soft tissue rheumatism with symptoms of fibromyalgia and fibromyositis did not meet or equal any impairment in the Listings of Impairments.
Nor does plaintiff meet or equal the listing in § 12.04B. The psychological evaluations in the record are consistent in showing that while plaintiff did exhibit some depression and hostility, she does not have a primary psychological disorder. The evidence in the record shows that plaintiff has good contact with reality, good social access, and no psychological problems that would interfere with a work-related setting or work-related activity. Therefore, plaintiff has not demonstrated that she meets or equals all of the requirements of 12.04B. Moreover, at the supplemental hearing, plaintiff's counsel stated that "she doesn't have [a] mental impairment. She doesn't have a psychological impairment." (Rec. 152).
A review of the Administrative Law Judge's decision indicates that he thoroughly considered the issue of medical equivalents with respect to plaintiff's claims that she meets or equals the listings. The ALJ wrote that "[t]he medical evidence establishes that the claimant has severe fibromyalgia but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." (Rec. 26). "This is sufficient articulation to demonstrate that the ALJ considered the *1143 issue of medical equivalents." Waite, supra, at 1359.
As an offshoot of the foregoing, plaintiff argues that "[t]his court has a legal responsibility to give Dr. Hague's opinion the substantial weight that a long term, treating physician deserves." (Plaintiff's Memorandum, p. 4). With respect to the amount of weight given different physicians' reports, the United States Court of Appeals for the Seventh Circuit wrote:
The patient's regular physician may want to do a favor for a friend and client, and so the treating physician may too quickly find disability. Cummins v. Schweiker, supra, 670 F.2d [81] at 84 [7th Cir. (1982)]. The regular physician also may lack an appreciation of how one case compares with other related cases. A consulting physician may bring both impartiality and expertise. A lawyer with a general practice often brings in a specialist for a few hours' consultation and pays handsomely; the specialist's review of an antitrust problem may reveal more than two weeks of work by a lawyer who handles few antitrust cases. Similarly, a physician who specializes in diseases of the thorax may contribute more knowledge to the administrative process after a one-hour examination than the general practitioner (who sees few thorax problems) contributes after years on the case. Many patients pay premium prices to have an hour's time with a physician with expertise in the precise problem they face, greatly preferring an hour of top-quality care to a week of average care. The consulting specialist can tell how a patient fits in a spectrum of similar ailments, something the non-specialist may not be able to do.
The Secretary's delegate is free to make the same sort of choice an informed patient may make for himself. Experience and knowledge of this case lie on the side of the treating physician, expertise and knowledge of similar cases on the side of the consulting specialist. How these weigh in a particular case is a question for the Secretary's delegate, subject only to the rule that the final decision must be supported by "substantial evidence." See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Strunk v. Heckler, 732 F.2d 1357, 1362-64 (7th Cir. 1984).
Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir.1985).
In the present matter, the ALJ made an informed choice with respect to the various physicians' reports. In his decision, the ALJ wrote "[a]lthough Dr. Hague has seen the claimant a number of times over a long period the claimant has also been examined by several other doctors and none of these other doctors appear to share Dr. Hague's opinion with regard to the severity of the claimant's condition." (Rec. 25).
Plaintiff also argues that the ALJ erred when he found plaintiff capable of performing her past relevant work as a specification writer and further erred when he found plaintiff capable of engaging in any substantial gainful activity. Again, substantial evidence supports the ALJ's conclusion.
The ALJ found that plaintiff retained the residual functional capacity to perform sedentary work and could therefore return to her past work as a specification writer as it is generally performed in the national economy. Under the regulations, "[t]he claimant first must bear the burden at step one of showing that he is not working, at step two that he has a medically severe impairment or combination of impairments, and at step four that the impairment prevents him from performing his past work." Bowen v. Yuckert, ___ U.S. ___, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987).
In the present matter, plaintiff has wholly failed to carry her burden of establishing that she is unable to perform her past relevant work as a specification writer. The objective medical evidence in the record indicates the presence of arthritic changes which cause plaintiff some degree of pain and discomfort, particularly in her hands and limit her in the ability to use her hands. The objective medical evidence, however, does not support her claim that she is precluded from work as a specification *1144 writer as it is performed in the national economy.
Even assuming that plaintiff would not be able to perform her past work as a specification writer as she actually had performed it due to the extensive writing it required, the ALJ properly determined that plaintiff could perform her past work as a specification writer as it is generally performed in the national economy.
In determining that the plaintiff has the residual functional capacity to perform her past work, it is incumbent upon the ALJ to compare the demands of plaintiff's past work with her existing capabilities when the past work was "sedentary." Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th cir. 1984). Here, the ALJ made such a comparison and determined that plaintiff retained the residual functional capacity for sedentary work that did not require constant or repetitive use of her hands. The ALJ's conclusion on this score was supported by the vocational expert's testimony to the effect that while plaintiff would not be able to perform her particular past sedentary skilled work as a specification writer, she would be able to perform the job of specification writer as it is generally performed in the national economy because that employment does not generally require the excessive use of an individual's hands. Moreover, the vocational expert testified that plaintiff could also perform her past sedentary work as a receptionist so long as that work was limited to activities such as answering the telephone and greeting people in environments such as hospitals, institutions and libraries.
Taken in balance, this court is of the view that the decision of the ALJ is supported by substantial evidence. Accordingly, the decision of the Secretary denying benefits will be affirmed.
Conclusion
On the basis of the foregoing, plaintiff Joan P. Johnson's September 17, 1987 motion for summary judgment is DENIED. Defendant Secretary of Health and Human Services' September 17, 1987 motion for summary judgment is GRANTED.
NOTES
[1] Plaintiff filed a previous application for disability insurance benefits on March 12, 1981, alleging she became disabled on August 29, 1980. This application was denied at all four levels of administrative review. Plaintiff then appealed the Secretary's final decision to the United States District Court for the Northern District of Indiana, Fort Wayne Division. The district court affirmed the Secretary's decision on March 22, 1984.
[2] In his letter, Dr. Hague referred to listing 1.03 as being the rheumatoid arthritis listing. Obviously that was a scrivener's error because listing 1.03 deals with arthritis of a major weight-bearing joint. Even if Dr. Hague was referring to listing 1.03, there is no objective medical evidence of any gross anatomical deformity in plaintiff's hip or knee as required by 1.03 of the listing.
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196 F.2d 663
MOSELEYv.MOSELEY et al.
No. 12956.
United States Court of Appeals Ninth Circuit.
May 7, 1952.
Williamson, Hoge & Curry, Los Angeles, Cal., for appellant.
Joseph C. Singer, Los Angeles, Cal. (Pollock & Pollock, and Edward I. Pollock, by Edward I. Pollock, Los Angeles, Cal., of counsel), for appellees.
Before MATHEWS, ORR and POPE, Circuit Judges.
POPE, Circuit Judge.
1
The appellant, who was plaintiff below, brought this suit against his brother, Lawrence C. Moseley, and the other three appellees, for an accounting following the dissolution of an alleged partnership. After trial in the court below, whose jurisdiction derives from the diversity of the citizenship of the parties, the court awarded appellant a judgment for $26,150.70.
2
The court found that the partnership was dissolved on October 31, 1947, and the amount of its judgment was made up of what the court determined to be the value of the plaintiff's share of the partnership assets on that day plus a certain amount found owing to plaintiff on account of firm earnings prior to the date of dissolution. Although the judgment was thus in favor of appellant, he appeals from it on the ground that the court unduly limited the relief to which he asserts he was entitled.
3
Appellant's principal grievance arises from his claim that upon the dissolution of the partnership, the defendant-appellee Lawrence Moseley, without appellant's consent, retained the business and business assets and transferred them to the appellee corporations, and thereafter, with the appellee Franzus, continued to carry on the former partnership business without there having been any judicial winding up of its affairs. Appellant says that he had the right to elect whether to have the business wound up and the assets sold, or to receive in cash the value of his share of the firm property, with the further option to collect interest, or a share of the profits derived from the continued use of his assets in the carrying on of the business. He asserts that he is entitled to an accounting of the affairs of the partnership and to a disclosure of what the earnings have been since the date of the dissolution before he is required to make his claimed elections.
4
The facts are not in controversy and most of them were stipulated. In 1941, the two Moseleys made an investment in the stock of a corporation which was carrying on the business of manufacturing and selling soaps and sanitation chemicals at Los Angeles. Subsequently their investment was increased, and in 1943 the corporation was dissolved and its business thereafter conducted by a partnership under the name of Sanitek Products Co. The partnership was nominally one composed of Lawrence C. Moseley and Edward S. Franzus, co-partners, but one-half of the interest of Lawrence C. Moseley in that firm was owned and represented contributions by appellant, Clarence W. Moseley. In 1945, Clarence and Lawrence Moseley executed a written agreement reciting the manner in which they had made equal contributions to the firm assets, and stipulating that Lawrence held his share "in the partnership composed of himself and Edward S. Franzus and known as Sanitek Products Co., in trust for the benefit of himself and Clarence W. Moseley upon the uses and trusts herein contained;" that such share or interest belonged to Lawrence and Clarence equally, 50% for each; that all ordinary earnings attributable to the Moseley share should be apportioned 75% to Lawrence and 25% to Clarence. It was further provided that Lawrence should devote his full time and attention to the business; that he would diligently represent and protect his interest and that of Clarence, and would faithfully account to the latter. Paragraph 5 of the agreement recited further: "5. It is mutually agreed that Lawrence C. Moseley shall have the sole right to represent said partnership interest and to make all decisions and take all action in respect thereto, and, subject to the obligation to account to Clarence W. Moseley, as aforesaid, shall have all rights and powers with respect to said partnership interest which he would have were said interest his own property free of these trusts." The agreement contained no provision as to how long the arrangement therein stated should continue.
5
On November 12, 1947, Lawrence wrote Clarence a letter advising him that as of the end of the preceding month Sanitek Products Company went out of business and was succeeded by Sanitek Products Inc. He stated that thereafter he and Franzus would each receive $1500 per month as salary, Lawrence's $1500 to be exclusively his own. He proposed to either buy Clarence out for an amount yet to be ascertained or to give him one-fourth of the dividends of the new corporation. Clarence was advised that "if neither plan suits you you will have to take me into court". The suit for the accounting followed.
6
Appellant does not question the correctness of the court's finding as to the value of his interest in the partnership assets as of October 31, 1947, when Lawrence Moseley undertook to bring the partnership or sub-partnership to a conclusion. But appellant predicates the point which he makes upon this appeal upon the asserted proposition that although Lawrence had the right thus to terminate the arrangement, he had no right in the absence of an agreement on the part of Clarence to take unto himself the assets which both had theretofore jointly owned, without any judicial winding up of the business, and without affording Clarence an opportunity to bid for the same upon a winding-up sale. He objects to Lawrence's continued use of the assets, including the good will, in carrying on substantially the same business from which Clarence was now entirely excluded. Appellant says that Lawrence Moseley owed him a fiduciary duty; that this trust obligation arose not merely from the rules generally applicable to a partnership, but from the fact that the written agreement of the parties expressly declared Lawrence to be a trustee. Appellant says that the circumstances under which Lawrence brought the joint enterprise to an end, took over the business and excluded Clarence therefrom, are such that Clarence should now be permitted to follow the trust property and to claim the same and the avails thereof in the same manner in which the wronged beneficiary of any trust is permitted to do.
7
It is conceded that Franzus had knowledge of the arrangement between Clarence and Lawrence Moseley. It would appear that he and the corporate appellees would be chargeable with notice such that they would take the property transferred to them subject to the claims of Clarence.
8
On behalf of appellant it is said that he was entitled to two elections: First, he claims the right to determine whether he will elect to receive the value of his interest in the partnership assets as of the date of dissolution, together with interest, or an accounting of subsequent profits, or whether he will demand a judicial winding up of the partnership affairs, accompanied by a sale of the assets at which he himself would be permitted to bid. Second, appellant says that if he should elect to take the value of his half of the partnership assets, (which he concedes the court has correctly determined), he then has the further election to receive either interest upon that sum from the date of dissolution, or an accounting of a share of the profits derived from the use of the assets by Lawrence subsequent to that date.
9
Without conceding the correctness of the principles thus advanced by the appellant, the appellees assert that they in any event have no application here because the written agreement between the parties expressly authorized Lawrence to do as he did with the partnership assets without accounting for anything other than that which the court has by its judgment awarded.
10
An examination of the applicable California law has convinced us that aside from any special contractual arrangement here made, the appellant's claim to an accounting for profits earned by use of the joint assets subsequent to dissolution must be sustained. Recently, in the case of Nuland v. Pruyn, 99 Cal.App.2d 603, 222. P. 2d 261, (hearing denied by the Supreme Court), the rights of a former partner whose associate took over and used the partnership business and property after dissolution and without an accounting, was stated to be as follows, 222 P.2d at page 268: "If the partnership was by the notice rightfully dissolved on September 6, 1944, appellants' rights would have been as follows: They would have been entitled to have their ownership in the assets determined as of that date and paid over to them in money or in kind; if this was not done and their property was used in the business they would have had, on account being taken, an election to receive their property and to share in the profits made thereafter in the proportion their property bore to the whole or to be paid interest on the value of their property so used."1 The court also referred to the earlier California decisions of Painter v. Painter, 4 Cal.Unrep.Cas. 636, 36 P. 865, Id., 6 Cal.Unrep.Cas. 677, 65 P. 135; and Ruppe v. Utter, 76 Cal.App. 19, 243 P. 715. In the last named case, the court was dealing with a controversy between two members of a partnership which had been dissolved. After alluding to the fact that thereafter each of the former partners had the right to go into business for himself, the court said, 76 Cal.App. at page 25, 243 P. at page 717: "Defendant, of course, had the same right. In the exercise of this right, however, he was not authorized to prolong his possession of the assets of the firm for the purpose of continuing the business and deriving profits therefrom. Having done so, he must be held to account to his retiring partner for any profits so made." We note that although the arrangement between Clarence and Lawrence Moseley perhaps would be more accurately described as a sub-partnership, yet in legal contemplation it must be regarded as covered by the rules generally applicable to other partnerships. This being so, the right of Clarence to an accounting of subsequently earned profits would, in the absence of a contract to the contrary, seem to be clear under the California decisions we have noted, and although neither party has relied upon it, it would appear to us that § 15042 of the California Corporations Code,2 which is a section of the Uniform Partnership Act, declares the same rule expressed in Nuland v. Pruyn, supra. The section refers to the situation where a partnership is dissolved and the business is continued "under any of the conditions set forth in § 15041 (1, 2, 3, 5, 6), or § 15038(2b)". The conditions thus referred to are where "the business is continued without liquidation of the partnership affairs." In substance, the section provides that when a partner retires and the business is continued without liquidation of the partnership affairs, and without any settlement of accounts, as between the retiring partner and the person continuing the business, the retiring partner "may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option * * * in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership".
11
This section would appear to be an implementation of the declaration contained in § 15021 of the same code that "every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property." (Emphasis added.)
12
A careful examination of the written agreement between Clarence and Lawrence Moseley fails to disclose any stipulation or arrangement which would operate to deprive Clarence of the ordinary rights of a retiring partner under the circumstances here present. Appellees place principal reliance upon paragraph 5 of the contract quoted above, by which Lawrence is given "the sole right to represent said partnership interest and to make all decisions and take all action in respect thereto", etc. But this, we think, amounts to no more than a grant of management powers. It is expressly subject to the obligation to account to Clarence. Elsewhere in the agreement provision is made for the division of the profits and earnings, and it is recited that "upon any dissolution, liquidation or other termination of the partnership, the interest of the parties hereto shall be adjusted accordingly." We find nothing in the agreement which would alter the rights granted by § 15042, supra, to a retiring partner whose copartner has, as here, continued the business without a settlement of accounts with him. We hold that that section states the limit and the extent of appellant's right. The right of election which appellant has thereunder is one which he should be permitted to exercise after an accounting shall have been taken of the earnings subsequent to dissolution. Otherwise, the right of election would be an illusory one.
13
Upon such an accounting the appellant's interest in the earnings must be limited to the 25% stipulated in the written agreement. In the calculation of the earnings of the whole enterprise attributable to the Moseleys' end of the business, any salary paid or payable to Lawrence Moseley must be included along with other earnings of the business whether heretofore distributed or otherwise. After such accounting shall have been made and the amount thereof stated, the appellant shall be entitled to make the election aforesaid and judgment shall be entered in accordance with such election.
14
The judgment should provide that the court retains jurisdiction over all the defendants to the end that if the defendant Moseley shall not, as the person primarily liable thereon, satisfy said judgment, it may be enforced against the other defendants to the extent that assets constituting a portion of appellant's share in said firm may have come into their hands.
15
The case is remanded with directions to set aside the judgment and proceed in accordance with this opinion.
Notes:
1
The court referred with approval to the annotation upon the subject "accountability of partner or joint adventurer for profits earned subsequently to death or dissolution" found at 80 A.L.R. 12, where the general rule is stated as follows: "It may be laid down as a general rule that, in the absence of special circumstances and subject to just allowances and deductions, where profits are made by a partner or joint adventurer subsequently to death or dissolution, through employment of the firm assets or in continuation of the business of the firm, he is accountable therefor to his copartner or co-adventurer or to the latter's legal representatives."
2
At the time of the partnership dissolution, this was § 2436 of the Civil Code. The section is as follows: "§ 15042. Rights of retiring partner or estate of deceased partner when the business is continued. When any partner retires or dies, and the business is continued under any of the conditions set forth in Section 15041(1, 2, 3, 5, 6), or Section 15038(2b) without any settlement of accounts as between him or his estate and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such persons or partnership may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option or at the option of his legal representative, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership; provided, that the creditors of the dissolved partnership as against the separate creditors, or the representative of the retired or deceased partner, shall have priority on any claim arising under this section, as provided by Section 15041(8) of this act."
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514 F.2d 995
89 L.R.R.M. (BNA) 3024, 77 Lab.Cas. P 11,042
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.COVINGTON FURNITURE MANUFACTURING COMPANY, Respondent.
No. 74-2012.
United States Court of Appeals,Sixth Circuit.
April 28, 1975.
Elliott Moore, Deputy Associate Gen. Counsel, Roger T. Brice, N. L. R. B., Washington, D. C., John J. A. Reynolds, Jr., Director, Region 26, N. L. R. B., Memphis, Tenn., for petitioner.
William E. Fortas, Robert J. Pinstein, Fortas, Less & Pinstein, Memphis, Tenn., for respondent.
Before WEICK, EDWARDS and ENGEL, Circuit Judges.
ORDER
1
On receipt and consideration of a petition for enforcement of an order of the National Labor Relations Board, reported at 212 N.L.R.B. No. 56 (1974); and
2
On review of the briefs and records in this proceeding and finding therein substantial evidence on the whole record to support the findings of fact of the Administrative Law Judge and the Board; and
3
Further noting that the legal conclusion arrived at by the Administrative Law Judge and the Board to the effect that the company's insistence upon a penalty clause being added to an otherwise agreed upon contract represented insistence upon a nonmandatory subject where good faith bargaining had resulted in an agreement upon all mandatory subjects and was therefore unlawful; and
4
That said conclusion is directly supported by the Supreme Court's opinion in NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958).
5
Now, therefore, the petition for enforcement of the Board's order is granted.
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246 P.3d 413 (2011)
STATE
v.
SAVAGE.
No. 104012.
Court of Appeals of Kansas.
January 28, 2011.
Decision Without Published Opinion
Affirmed.
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319 F.2d 872
DOUGLASS BROS., INC.v.The UNITED STATES.
No. 355-58.
United States Court of Claims.
July 12, 1963.
W. C. Peticolas, El Paso, Tex., for plaintiff. Peticolas, Luscombe and Stephens, El Paso, Tex., were on the briefs.
Katherine H. Johnson, Alexandria, Va., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.
Before JONES, Chief Judge, and LARAMORE, DURFEE and DAVIS, Judges.
DURFEE, Judge.*
1
Douglass Bros., Inc. brings this action to recover the sum of $32,247.82, the balance of payment due under a contract with defendant. Plaintiff completed the work called for by the contract, but because of plaintiff's subcontractor's negligence, fire destroyed part of defendant's property. Defendant withholds the stated amount from plaintiff to compensate itself for the loss.
2
Douglass contracted to install new transformers and secondary lines carrying electricity at the Holloman Air Force Base in New Mexico. The actual work was performed by the L. G. Simon Electric Company. In the course of installing the new equipment, Simon's employees misconnected two wires. A result of this negligence was a fire in two buildings Nos. 295 and 297 on the Air Force Base. The work called for by the contract was completed and plaintiff was paid all but the $32,247.82 sued for in this proceeding. The Air Force withheld this amount, estimating this to be the amount of damage caused to the buildings, on the basis of paragraph 31 of the General Provisions of the Contract involved. This provision states in part:
3
"* * * the Contractor shall be responsible for all loss or destruction of or damage to property that occurs as a result of his [sic] fault or negligence in connection with the prosecution of the work * * *."
4
After the fire in buildings 295 and 297, an Air Force Board conducted an investigation as to its cause and the extent of the destruction. This ex parte investigation determined that the cause of the fire was carelessness on the part of the L. G. Simon Electric Company's personnel. Neither plaintiff nor Simon Company was afforded an opportunity to be represented at the board's proceedings, or to present evidence to the board. On the basis of this investigation, the contracting officer presented Douglass with the claim for damages. Upon plaintiff's failure to pay the claim and the subsequent withholding of payment to plaintiff, Douglass filed its claim for $32,247.82 with the General Accounting Office. The Comptroller General disallowed the claim. The Armed Services Board of Contract Appeals eventually rendered an opinion on plaintiff's claim, dismissing it on the ground that the ASBCA lacked jurisdiction because the claim had been submitted to, and denied by the Comptroller General.
5
It is admitted that Simon's employees were negligent, that this negligence is imputed to plaintiff, and that plaintiff is otherwise liable for negligent destruction of defendant's property under paragraph 31 of the contract. The issues between the parties concern defendant's negligence. Was defendant careless in the manner in which it grounded the wires in buildings 295 and 297; was this a substantial factor contributing to the property destruction; does this alter plaintiff's responsibility under paragraph 31, or render the paragraph inoperative?
6
Plaintiff has completed the work called for by the contract, but defendant has failed to respond with the agreed-upon consideration. Having thus caused a breach of contract, defendant is brought to court to account for its failure to pay. The defense is plaintiff's negligence and its liability therefor under paragraph 31. Without question, plaintiff may plead and prove that defendant's own negligence caused all or part of the damage in order to overcome this defense. The defense and counter-defense of negligence, however, does not make this suit for the contract price a tort action. It remains a suit for breach of contract and involves the interpretation to be given paragraph 31 of the agreement. This is not a case sounding in tort; we have no jurisdiction over such controversies.
7
Paragraph 31 states that the contractor shall be responsible for defendant's loss that occurs as a result of the contractor's "fault or negligence." This must mean the sole fault of the contractor or its agents or employees. It does not include the fault of third parties, and it cannot include the fault of defendant's own agents or employees. The contract would have to state in clear and unequivocal terms, the unusual provision that would allow defendant to so pass on the liability for its own negligence. If defendant has negligently caused damage to its property, it must bear this loss itself; it may not withhold from plaintiff any part of the contract price to compensate for the loss.
8
In the case at bar, we must first determine, under a contract provision, what damage plaintiff is responsible for, and hold it liable. If defendant's carelessness was operative at the same moment and it added to and extended the damage done, we must make the effort to separate this additional destruction. Plaintiff cannot be held for that also. Under the terms of paragraph 31, plaintiff is not absolved from its wrongdoing because of defendant's concurrent fault, yet defendant cannot hold Douglass Bros., Inc. liable for the entire loss to which its own carelessness contributed.
9
The fire broke out because of the misconnection between the secondary line and service drops for the lighting services in buildings 295 and 297 made by the L. G. Simon Company. The misconnection caused an overloading of current on the wires leading into the buildings and on to the light fixtures. Ordinarily, any excess current will be taken off and away by a ground wire which is attached to a nearby water pipe from the lighting switch. The misconnection caused the current overload to be so great that it exceeded the carrying capacity of the ground wires and caused them to overheat to the point of incandescence.
10
Defendant's carelessness relates to the ground wire in building 295. Douglass Bros., Inc. no longer contends that defendant was negligent with respect to the other structure. A No. 6 wire had been used in building 295 as a ground wire, and it had been connected to a nearby water pipe from the second light switch in the north portion of the building. A No. 2 wire, which is larger than a No. 6, and which can bear a greater current, should have been used instead, and it should have been connected from the main switch to a nearby water pipe. A ground wire from the main switch increases the possibility of minimizing the damage to the building in case of overheating of the ground wire caused by excessive current. The size of the ground wire is usually dictated by the size of the service entrance wires that carry the electricity from the power pole outside the building, to the main switch within the building. Considering the size of the service entrance wires to building 295, a No. 6 ground wire was insufficient to carry off the excessive current to which those wires might reasonably be expected to become subject.
11
The connection of the ground wire to the second switch in the north portion of the building is itself insufficient basis upon which to conclude that defendant's negligence was a substantial contributing factor to the property loss in building 295. Had the connection been made properly, at the main switch, fire probably would have occurred in any event, because of plaintiff's misconnection outside and defendant's use of a No. 6 ground wire inside. But such damage as was done to the computers and plotting boards housed in the north portion of the building would have been avoided. The extent of damage to these items amounted to $16,945.32. Other damage may have occurred near the main switch instead, had the ground wire been connected there. The facts are not fully developed in this regard.
12
The lighting system in building 297 was grounded from the main switch, and with a proper size wire, and the fire occurred around this main switch. The matter is not free from doubt, but we assume that if the system were properly installed in building 295, the result would have been the same. The No. 6 wire in building 295 then, only hastened combustion. But there is nothing in the record that shows defendant would have suffered the loss it did near the second switch had the ground wire not been imprudently placed there. The evidence leads more to the conclusion that had the ground wire been properly located the loss to defendant would have been less.
13
Plaintiff is entitled to recover the contract price for the work done less an amount of money which will adequately compensate defendant for the damage to building 295, caused by the carelessness of L. G. Simon Company's employees. To the extent that defendant's failure to properly ground the lighting system increased and extended the damage caused by plaintiff's negligence, to that extent plaintiff shall not be liable to compensate defendant under paragraph 31 of the contract. Plaintiff is responsible only for the destruction caused by its own agents and employees.
14
An additional amount of money equal to the total damage caused to building 297 shall also be taken from the compensation otherwise due plaintiff. Plaintiff's misfeasance alone was operative in causing damage to this structure.
15
This case is remanded to the Commissioner pursuant to Rule 38(c) with instructions to recommend that plaintiff receive the sum of $32,247.82, less $200, the total amount of damage done to building 297, and less an amount which is equal to the loss due to the destruction to building 295 caused by plaintiff's negligence, exclusive of defendant's negligence.
Notes:
*
Trial Commissioner Mastin G. White at the direction of the court, prepared an opinion and recommended conclusions of law in this case, which was of substantial assistance
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95 F.3d 1157
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Roland C. DENT, Petitioner-Appellant,v.Tana WOOD, Respondent-Appellee.
No. 95-35698.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 12, 1996.*Decided Aug. 19, 1996.
Before: BROWNING, SCHROEDER and RYMER, Circuit Judges.
1
MEMORANDUM**
2
Roland C. Dent, a Washington state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition. Following a jury trial, Dent was convicted of conspiracy to commit first degree murder. Dent contends that the trial court's "substantial step" jury instruction: (1) violated the Due Process Clause by retroactively broadening the definition of conspiracy under Wash.Rev.Code § 9A.28.040(1), (2) relieved the government of its burden of proving a conspiracy under Wash.Rev.Code § 9A.28.040(1), (3) enabled the jury to find Dent guilty without deciding all the elements of the offense, (4) enabled the government to convict Dent of conspiracy without sufficient evidence of "more than mere preparation," and (5) retroactively made Dent's innocent conduct a crime. We have jurisdiction under 28 U.S.C. § 2253 and we review de novo. Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995). We affirm.
3
We affirm for the reasons stated in the district court's order adopting the Report and Recommendation, which fully and fairly addressed each of Dent's claims.
4
Because we affirm the denial of relief under the former version of 28 U.S.C. § 2254, we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal.
5
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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FILED
NOT FOR PUBLICATION NOV 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DC COMICS, No. 12-57245
Plaintiff - Appellee, D.C. No. 2:10-cv-03633-ODW-RZ
v.
MEMORANDUM*
PACIFIC PICTURES CORPORATION;
IP WORLDWIDE, LLC; IPW, LLC;
MARC TOBEROFF; MARK WARREN
PEARY, as personal representative of the
Estate of Joseph Shuster; LAURA
SIEGEL LARSON, individually and as
personal representative of the Estate of
Joanne Siegel; JEAN ADELE PEAVY,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted May 23, 2013
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District
Judge.**
In this appeal, we address another chapter in the long-running saga regarding
the ownership of copyrights in Superman—a story almost as old as the Man of
Steel himself.1 In 2003, Defendant Mark Peary, acting as executor of the estate of
Joseph Shuster (one of the two co-creators of Superman), filed a copyright
termination notice pursuant to 17 U.S.C. § 304(d), seeking to reclaim the
copyrights to Superman that Shuster had assigned to Plaintiff DC Comics (“DC”)
in 1938. DC brought this action in response, seeking, in the claim that we review
here, a declaratory judgment that the notice of termination filed by the estate is
invalid. DC contends that, in an agreement (the “1992 Agreement”) it signed with
Joseph Shuster’s siblings (including his sister and sole heir, Jean Peavy), the
siblings received pensions for life in exchange for a revocation of the 1938
assignment of copyrights to DC and a re-grant to DC of all of Shuster’s copyrights
in Superman. Because the 1976 and 1998 statutes permitting the filing of
copyright termination notices permit only the termination of assignments
**
The Honorable John W. Sedwick, U.S. District Judge for the District
of Alaska, sitting by designation.
1
For recently-published histories, see Brad Ricca, Super Boys: The Amazing
Adventures of Jerry Siegel and Joe Shuster—the Creators of Superman (2013) and
Larry Tye, Superman: The High-Flying History of America’s Most Enduring Hero
(2012).
2
“executed before January 1, 1978,” 17 U.S.C. § 304(c), (d), DC contends that the
1992 Agreement forecloses the estate’s 2003 notice of termination, in that it leaves
no pre-1978 assignment to terminate (instead creating a new assignment effective
1992). The district judge agreed with DC, granting it partial summary judgment on
its claim for declaratory relief, as well as on another of its claims pled in the
alternative. The district judge entered final judgment in favor of DC on these
claims pursuant to Fed. R. Civ. P. 54(b), and we have jurisdiction pursuant to 28
U.S.C. § 1291. We review the district judge’s grant of summary judgment de
novo, and we affirm.
1. The district judge correctly held that the 1992 Agreement, as a matter
of New York law,2 superseded the 1938 assignment of copyrights to DC, and
therefore operated to revoke that assignment and re-grant the Superman copyrights
to DC. The estate’s primary argument to the contrary is that the 1992 Agreement
2
The parties concede that New York contract law generally governs the
interpretation of the contract. We reject the defendants’ arguments that federal law
imposes certain additional requirements on a revocation and re-grant, such as that
it must be in express terms. See Classic Media Inc. v. Mewborn, 532 F.3d 978, 989
(9th Cir. 2008) (suggesting that an agreement could “expressly or impliedly
transfer” a termination right); see also Milne ex rel. Coyne v. Stephen Slesinger,
Inc., 430 F.3d 1036, 1046 (9th Cir. 2005) (quoting legislative history stating that
“nothing in this section or legislation is intended to change the existing state of the
law of contracts concerning the circumstances in which an author may terminate a
license, transfer or assignment”).
3
does not, in express terms, cancel the 1938 agreement. As New York courts have
held, however, “[t]here is no magic to the words ‘settlement’ or ‘compromise’” in
deciding whether one agreement supersedes another; “[t]he question is always
whether the subsequent agreement . . . is, as a matter of intention, expressed or
implied, a superseder of, or substitution for, the old agreement or dispute.”
Goldbard v. Empire State Mut. Ins. Co., 171 N.Y.S.2d 193, 198-99 (N.Y. App.
Div. 1958); see also Goldome Corp. v. Wittig, 634 N.Y.S.2d 308, 309 (N.Y. App.
Div. 1995) (holding that a mutual release of all causes of action was “clear and
unambiguous language” superseding all prior agreements). We agree with the
district judge that, under the plain text of the 1992 Agreement, which “fully settles
all claims” regarding “any copyrights, trademarks, or other property right in any
and all work created in whole or in part by . . . Joseph Shuster,” and further “now
grant[s] to [DC] any such rights,” it superseded the 1938 assignment as a matter of
New York law. We therefore hold that the agreement created a new, 1992
4
assignment of works to DC—an assignment unaffected by the 2003 notice of
termination.3
2. We reject the defendants’ contention that the 1992 Agreement cannot
foreclose the 2003 notice of termination because it is an “agreement to the
contrary” within the meaning of 17 U.S.C. § 304(c)(5). Defendants’ argument runs
counter to the plain text of the copyright termination statute, in that it would permit
the copyright termination provision to extinguish a post-1977 copyright
assignment, despite the statute’s express limitation to assignments “executed
3
Because we agree with the district judge that this conclusion is evident from
the text of the agreement, we find no error in his refusal to consider the extrinsic
evidence offered by defendants (which is, in any event, insufficient to overcome
the strong inference from the text itself). See W.W.W. Assocs., Inc. v. Giancontieri,
566 N.E.2d 639, 162-63 (N.Y. 1990) (under New York law, the parties’ intent may
be divined as a matter of law from the four corners of the contract, without looking
to extrinsic evidence); see also Rentways, Inc. v. O’Neill Milk & Cream Co., 126
N.E.2d 271, 273 (N.Y. 1955). We also deny defendants’ motion for judicial notice
of certain documents, because defendants offer no reason why they could not have
provided this evidence to the district judge. See Moore v. Czerniak, 574 F.3d
1092, 1116 (9th Cir. 2009), rev’d on other grounds, 131 S. Ct. 733 (2011).
The heirs argued explicitly below, as a ground for rejecting DC’s claim for
summary judgment, that the 1992 Agreement could not now bind the estate
because “the Shuster Executor was not a party to the 1992 Agreement”—an issue
of state law that they appeared to have tried to revive at oral argument. The district
judge’s ruling implicitly rejected this argument, holding that the estate was bound
by the 1992 Agreement. The factual and legal dispute regarding whether Joseph
Shuster’s sister acted as his executor when she signed the 1992 Agreement is a
potentially complex one; we do not address this question of state law, because the
heirs failed to raise it in their opening brief. See Dream Games of Arizona, Inc. v.
PC Onsite, 561 F.3d 983, 994-95 (9th Cir. 2009); Fed. R. App. P. 28(a)(9)(A).
5
before January 1, 1978.” 17 U.S.C. § 304(d); see Milne ex rel. Coyne v. Stephen
Slesinger, Inc., 430 F.3d 1036, 1048 (9th Cir. 2005) (“[t]he CTEA’s termination
provision does not apply to post-1978 agreements”). In Milne, we noted that the
interpretation of the statute defendants favor would conflict with extensive
legislative history endorsing the continued ability of authors (or their heirs) to
extinguish a prior grant and replace it with a new one:
Congress specifically stated that it did not intend for the [copyright
termination] statute to “prevent the parties to a transfer or license from
voluntarily agreeing at any time to terminate an existing grant and
negotiating a new one[.]” H.R. Rep. No. 94-1476, at 127 (1976),
reprinted in 1976 U.S.C.C.A.N. 5659, 5743. Congress further stated
that “nothing in this section or legislation is intended to change the
existing state of the law of contracts concerning the circumstances in
which an author may terminate a license, transfer or assignment.”
H.R. Rep. No. 94-1476, at 142, 1976 U.S.C.C.A.N. at 5758. Congress
therefore anticipated that parties may contract, as an alternative to
statutory termination, to revoke a prior grant by replacing it with a
new one. Indeed, Congress explicitly endorsed the continued right of
“parties to a transfer or license” to “voluntarily agree[ ] at any time to
terminate an existing grant and negotiat[e] a new one.” H.R. Rep. No.
94-1476, at 127, 1976 U.S.C.C.A.N. at 5743.
Milne, 430 F.3d at 1045-46 (all edits but first in original). Both our holding in
Milne and this legislative history answer the heirs’ contentions that the estate could
not have entered into a revocation and re-grant prior to the passage of the 1998
Copyright Term Extension Act and its creation of the termination right in 17
U.S.C. § 304(d) and addition of an executor to the list of statutory owners of a
6
termination interest, 17 U.S.C. § 304(c)(2)(D).4 Our later decision in Classic
Media Inc. v. Mewborn, which defendants argue should govern rather than Milne,
is inapposite, in that it involved an agreement that did not extinguish the pre-1978
assignment that was the subject of the notice of termination. 532 F.3d 978, 989
(9th Cir. 2008). Defendants’ other arguments effectively ask us to overturn our
decision in Milne—something this panel is not generally empowered to do. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
3. Defendants also appeal the district judge’s grant of summary
judgment on DC’s third claim, regarding the invalidity of certain agreements
signed by the heirs—including one between the heirs and a corporation headed by
their attorney, Marc Toberoff, in which they formed a joint venture to exploit any
recovered Superman works. The heirs concede that their alienation of their
putative future interests in the Superman copyright was contrary to the copyright
4
Since our decision in Milne, at least one other circuit has adopted a similar
rule. The Second Circuit has held that, “provided that a post-1978 agreement
effectively terminates a pre-1978 grant, Congress did not manifest any intent for
the earlier agreement to survive simply for purposes of exercising a termination
right in the future.” See Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193, 203
(2d Cir. 2008); see also id. at 202-03 (“We do not read the phrase ‘agreement to
the contrary so broadly that it would include any agreement that has the effect of
eliminating a termination right . . . . We cannot see how the 1994 Agreement could
be an ‘agreement’ to the contrary solely because it had the effect of eliminating
termination rights that did not yet exist.”).
7
statute. See 17 U.S.C. § 304(c)(6)(D). We note that their failure (and that of
Toberoff, their attorney and business partner) to disclose this information in the
2003 notice of termination itself appears to violate the relevant regulations
governing notices of termination. See 37 CFR § 201.10(b)(1)(vii). Because,
however, this claim was pled in the alternative, and because we affirm the district
judge’s grant of summary judgment on DC’s other claim (for declaratory
judgment), we dismiss as moot this aspect of the appeal.
AFFIRMED.
8
FILED
DC Comics v. Pacific Pictures Corp; No. 12-57245 NOV 21 2013
MOLLY C. DWYER, CLERK
Thomas, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully disagree with my colleagues.
1. The 1992 Agreement could not have affected the statutory right of
termination. The Copyright Act of 1976 gave the author of a copyrighted work, or
his widow or surviving child, the ability to terminate a grant of copyrights in the
author’s work executed before January 1, 1978. 17 U.S.C. § 304(c); Milne ex rel.
Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1040 (9th Cir. 2005). Thus, in
1992, no one except the surviving spouse or child could exercise the right of
termination. In 1998—six years after the parties executed the agreement at the
center of this appeal—Congress extended the termination right to authors’
executors, administrators, personal representatives, and trustees. 17 U.S.C.
§ 304(a)(1)(C)(iii), (d), Pub. L. No. 105-298 (1998). Therefore, at the time the
1992 Agreement was executed, neither Frank nor Jean had the power to exercise
the statutory right of termination.
Thus, the question is whether the 1992 Agreement was a novation that
validly revoked and re-granted Joe Shuster’s 1938 copyright grant. If not, then the
agreement is either (1) simply a pension agreement that had no effect on the heirs’
later-created statutory termination rights; or (2) an “agreement to the contrary”
under 17 U.S.C. § 304(c)(5) because it waives the heirs’ termination rights, see
Patry on Copyright § 7:46 (stating that section 304(c)(5)’s protection of
termination rights “notwithstanding any agreement to the contrary” “is intended to
make Congress’s intent as clear as humanly possible: an author cannot agree to
waive his or her termination right”).
2. Under New York law, proof of a novation requires four elements:
"'(1) a previously valid obligation; (2) agreement of all parties to a new contract;
(3) extinguishment of the old contract; and (4) a valid new contract.'" Healy v.
Healy, 594 N.Y.S.2d 90, 91 (N.Y. App. Div. 1993) (quoting Callanan v. Micheli
Contr. Corp., 508 N.Y.S.2d 711, 712 (N.Y. App. Div. 1986)); see also
Wasserstrom v. Interstate Litho Corp., 495 N.Y.S.2d 217, 219 (N.Y. App. Div.
1985) (stating that these four elements "must be present" to establish a valid
novation). In my view, the elements are not satisfied.
First, there is no indication in the 1992 Agreement that the prior agreement
was extinguished by the new agreement. There is no statement to that effect in the
1992 Agreement and, in fact, the prior copyright grant is not referenced at all.
Thus, the third element is not satisfied. See, e.g., First Call Friendly Note Buyers
v. McMenamy, 837 N.Y.S.2d 363, 364 (N.Y.App. Div. 2007) (holding that there
was no novation “inasumuch as there is no indication that the original contract was
extinguished”); see also Wasserstrom, 495 N.Y.S.2d at 219 (noting that allegedly
-2-
superseding agreement “makes absolutely no reference to” allegedly superseded
agreement “and cannot be considered to have modified it in any way”).
Further, this record is not sufficient to establish that Joe Shuster's siblings
had the authority in 1992 to revoke and supersede his 1938 copyright grant. At
that time, Frank was a third-party beneficiary of Joe's agreement with DC, under
which DC agreed to pay Frank certain survivor benefits; Jean was a stranger to that
agreement. Jean had identified herself as Joe’s executrix and sole heir in state
probate court and in her communications with DC, but Joe's estate hadn't been
probated, nor had Jean been appointed his executrix. Although title to property
transfers to heirs upon death, Cal. Probate Code § 7000, that transfer of title is
subject to probate administration, Cal. Probate Code § 7001. In 1992, California
law required probate of any estate in which the value of the personal property
exceeded $60,000. Cal. Probate Code § 13100 (1992). Under California law, Jean
could not dispose of Joe’s copyright interests before probate. See 14 Witkin,
Summary of Cal. Law, Wills § 405 (10th ed. 2005 Probate law). Thus, neither
Frank nor Jean had the authority to enter into a novation of the original contract.
Therefore, I conclude that the 1992 Agreement did not effect a valid
novation under New York law.
3. Given that the 1992 Agreement had no effect on the statutory right of
-3-
termination and did not effect a novation, the statutory right of termination became
part of Joe Schuster’s estate. The record is not developed fully enough for me to
determine what consequences actually flow from that conclusion. It may well be,
under California probate law, that the ultimate outcome is unchanged. But on the
record before us, and the narrow question presented in this appeal, I must
respectfully dissent.
-4-
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION FOR REHEARING
Appellate case name: Marcy Lerch v. Wilmington Trust NA Successor Trustee for
the Merrill Lynch Mortgage Investor Trust Series 2006-HE5
Appellate case number: 01-15-00505-CV
Trial court case number: 15-CCV-054652
Trial court: County Court at Law No. 1 of Fort Bend County
The panel has voted to deny appellant’s motion for reconsideration, construed as a
motion for rehearing, of the order, signed on June 11, 2015.
It is ordered that the motion for rehearing is denied.
Judge’s signature: /s/ Laura C. Higley
Panel consists of: Chief Justice Radack and Justices Higley and Massengale
Date: August 4, 2015
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Opinion issued October 14, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01329-CR
ROBERT E. MASSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 12th District Court
Walker County, Texas
Trial Court Cause No. 20,501
MEMORANDUM OPINION
Appellant, Robert E. Massey, pleaded guilty to the offense of aggravated
robbery and true to an allegation in an enhancement paragraph that he had a prior
felony conviction for possession of a controlled substance. The trial court sentenced
him to thirty years’ confinement. In his sole point of error, Massey contends he was
denied a speedy trial. We conclude that the State did not violate Massey’s right to a
speedy trial and therefore affirm.
Facts
A trial court convicted Massey in April 1994 of felony possession of a
controlled substance, and sentenced him to nine years’ confinement. Authorities
released him on parole in December 1998.
Massey subsequently was arrested for
aggravated robbery in May 1999, and indicted on October 26, 1999. The Texas
Department of Criminal Justice (“TDCJ”) revoked Massey’s parole for his 1994
conviction because of the pending charges. In July 1999, authorities then returned
Massey to the custody of the TDCJ.
The State served Massey with the indictment
for the aggravated robbery and escape offenses in November 1999, and Massey
received notice that same month that the State placed a detainer on him. TDCJ
discharged Massey in December 2001, and released him pursuant to the detainer into
the physical custody of Walker County officials, who transported him to the county
jail to prosecute him for the pending charges. In March 2002, Massey filed a motion
to dismiss the indictment, contending that the State had failed to afford him a speedy
trial.
Right to a Speedy Trial
The right to a speedy trial is guaranteed by the Sixth Amendment of the United
States Constitution and applies to the states through the Fourteenth Amendment.
Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184 (1972). An accused is also
guaranteed the right to a speedy trial by the Texas Constitution. Tex. Const. art. I,
§ 10; see also Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon Supp. 2004)
(providing that an accused is guaranteed a speedy trial). Texas courts look to the
federal courts to determine constitutional rights and apply the test articulated in
Barker for a speedy-trial analysis. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim.
App. 1992). The Barker test requires a reviewing court to balance four factors to
determine whether one’s right to a speedy trial has been violated: (1) the length of
delay; (2) the reason for the delay; (3) defendant’s timely assertion of his speedy-trial
right; and (4) prejudice to the defendant resulting from the delay. Barker, 407 U.S.
at 530, 92 S. Ct. at 2192. As the reviewing court, in evaluating a speedy trial claim,
we review factual issues for abuse of discretion, and legal issues de novo. State v.
Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).
Length of Delay
The length of the delay is considered a “triggering mechanism”—absent a
presumptively prejudicial delay, a reviewing court need not consider the other Barker
factors. Barker, 407 U.S. at 530, 92 S. Ct. at 2192. Relying on Turner v. State, 545
S.W.2d 133, 137 (Tex. Crim. App. 1977), Massey contends that the twenty-eight
month delay between the date he was indicted and his trial is presumptively
unreasonable. The Court of Criminal Appeals has recognized that courts generally
hold delays of eight months or longer presumptively unreasonable, thereby triggering
speedy-trial analysis. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992).
Likewise, this Court recently held that a delay substantially shorter than twenty-eight
months is presumptively unreasonable, thus triggering speedy-trial analysis. Ervin
v. State, 125 S.W.3d 542, 546 (Tex. App.—Houston [1st Dist.] 2002, no pet.). We
therefore evaluate Massey’s claim under Barker.
Reason for Delay
The State bears the burden to justify a presumptively unreasonable delay.
Phillips v. State, 650 S.W.2d 396, 400 (Tex. Crim. App. 1983). A deliberate attempt
to delay the trial to hamper the defense weighs heavily against the government.
Barker, 407 U.S. at 531, 92 S. Ct. at 2192. A negligent delay weighs less heavily,
but nevertheless we consider it, because the ultimate responsibility for such
circumstances rests with the State rather than with the defendant. Id.
Massey does not dispute that the State announced it was ready for trial in
November 1999, only weeks after he was indicted, and that the State requested that
the trial court’s coordinator set the case for trial. Massey nonetheless contends that,
other than by blaming the trial court’s scheduling system, the State offered no reason
to justify the reason for the delay he experienced. Massey also alleged, in a letter to
the trial court just before the trial took place, that the State passed four trial settings,
and that he announced “ready” at each; but nothing else in the appellate record
indicates that such settings existed, or that Massey ever announced ready.
Massey called Leslie Hardy, an employee of the District Attorney’s Office,
who testified that Carroll Standley was the trial court’s coordinator.
Hardy attributed
the delay in this case to a backlog of cases in the trial court, and explained that “in
order to try to keep up with [the] backlog,” a large amount of trial work is currently
handled by visiting judges. The Walker County District Attorney receives dockets
from the trial court coordinator, and its office prepares the cases set on the court’s
docket. Hardy testified that the district attorney’s office did nothing to delay bringing
Massey’s case to trial, and the trial court admitted into evidence a written
announcement of ready and request for trial setting filed by the State on November
22, 1999.
We find that this factor weighs against the State, but not heavily. In Barker,
although the Supreme Court considered overcrowded courts to be a neutral reason for
delay, it did state that it should be considered as “responsibility for such
circumstances must rest with the government rather than with the defendant.” Barker,
407 U.S. at 531, 92 S. Ct. at 2192; see also Ramirez v. State, 897 S.W.2d 428, 433
(Tex. App.—El Paso 1995, no pet.) (because record supported State’s contention that
delay caused by overcrowded docket, “this factor does not weigh heavily against the
State”).
Assertion of Speedy Trial Right
A defendant’s assertion of his right to a speedy trial is entitled to strong
evidentiary weight. Barker, 407 U.S. at 531-32, 92 S. Ct. at 2193. Likewise, a
defendant’s failure to assert the right to a speedy trial makes it difficult to prove that
he was denied a speedy trial. Id. at 532, 92 S. Ct. at 2193; Shaw v. State, 117
S.W.3d 883, 890 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 314 (Tex.
Crim. App. 2003).
Without providing authority to support this proposition, Massey contends that,
by filing “a few [pretrial] motions,” he repeatedly, albeit impliedly, asserted his right
to a speedy trial. Massey testified that he did not recall what relief his pretrial
motions requested, nor how many motions he filed, and admitted that he never
requested a hearing on those motions. The record indicates that Massey filed two
pretrial motions on November 30, 1999. Massey explained that, although he had
access to free stamps to send “legal mail,” he sent only the motions contained in the
court’s file, explaining, “I was just waiting for them to respond.” Massey testified
that he wrote the district attorney, but was not surprised to know that the letter was
not in the district attorney’s file. When asked why he was not surprised, Massey
reluctantly responded, “I’d rather not answer that question.”
Existing caselaw contradicts Massey’s proposition that the filing of pretrial
motions implies a request for a speedy trial. See State v. Munoz, 991 S.W.2d 818,
825-26 (Tex. Crim. App. 1999) (waiver of arraignment form containing a pro forma
request for trial date and motion to sever not assertion of right to speedy trial when
nothing filed before motion to dismiss expressly reflected assertion of right to speedy
trial); In re J.W.G., 988 S.W.2d 318, 323 (Tex. App.—Houston [1st Dist.] 1999, no
pet.) (neither motion to dismiss for purported speedy trial violations nor
announcement of ready constitutes assertion of right to speedy trial); Harlan v. State
975 S.W.2d 387, 391 (Tex. App.—Tyler 1998, pet. ref’d) (distinguishing between
pursuing pretrial motions and asserting right to a speedy trial).
The Court appointed trial counsel for Massey on December 14, 2001. On
December 31, 2002, Massey waived arraignment, and stated that he “ agrees that the
cause be set for pre-trial at the next available setting in the courtroom of the 12th
Judicial District Court of Walker County, Texas.” Massey, however, never expressly
asserted his right to a speedy trial until March 2, 2002, and did so at that time by
seeking dismissal of the indictment.
Massey’s reliance on Turner v. State, 545 S.W.2d 133 (Tex. Crim. App. 1976)
is misplaced. Unlike Massey, Turner persistently asserted his right to a speedy trial.
Turner filed numerous motions for a speedy trial and requested that the trial court
quash the indictment. Id. at 135-36. He sent letters requesting a speedy trial, and
even successfully persuaded the Texas Attorney General and an administrative
assistant employed at the federal penitentiary at which he was housed to send letters
requesting that he receive a speedy trial. Id. Even before obtaining counsel, Turner
requested a speedy trial on two occasions, moved once to quash the indictment, and
enlisted the services of the attorney general in requesting that he receive a speedy
trial. Id. Unlike Turner’s diligent assertion of his right to a speedy trial, Massey
waited over two years from the date he was indicted before he asserted his right to a
speedy trial.
Massey also relies upon Zamorano v. State, 84 S.W.3d 643, 651-52 (Tex. Crim.
App. 2002), in support of his contention that he was denied the right to a speedy trial.
Like Massey, Zamorano’s first assertion of his right to a speedy trial was “tardy.”
Id. at 651. Unlike Massey, however, Zamorano persistently asserted his right to a
speedy trial. Zamorano filed a second motion for speedy trial less than two months
after the trial court denied his first motion. Id. at 651-52. The Court of Criminal
Appeals noted that, if it were not for Zamorano’s persistence as evidenced by his
second assertion of his right to a speedy trial, his initial “late assertion, had no
subsequent motion been filed, might well have undercut his Sixth Amendment
claim.” Id. at 652. Here, Massey first asserted his right to a speedy trial by filing his
motion to set aside the indictment on March 7, 2002. The trial court conducted a
hearing on the motion on March 22, 2002, and the trial court did not rule on his
motion until October 24, 2002. More than seven months elapsed between the date of
the hearing and the date that the trial court ruled on his motion, and, unlike
Zamorano, Massey did not again assert his right to a speedy trial, but instead plead
guilty to the criminal offense of aggravated robbery pursuant to a plea bargain on
November 4, 2002.
We determine that this factor weighs heavily against Massey. Massey was
indicted in October 1999, and never filed a motion or request for speedy trial. In
March 2002, twenty-eight months after he was indicted, Massey first asserted his
right to a speedy trial by filing a motion to set aside the indictment. The absence of
a timely demand for a speedy trial, even after being represented by counsel, indicates
strongly that Massey really did not want a speedy trial. See Shaw, 117 S.W.3d at 890;
Dragoo, 96 S.W.3d at 314(concluding appellant’s quiet acquiescence for three and
a half years indicated he really did not want a speedy trial); see also Zamorano, 84
S.W.3d at 651 n.40 (noting motion framed as motion to dismiss potentially weakens
speedy trial claim, because “it shows a desire to have no trial instead of a speedy
trial”);
Harris, 827 S.W.2d at 957. While Massey had no duty to bring himself to
trial, he was not without responsibility to assert his right to a speedy trial. Zamorano,
84 S.W.3d at 651.
Prejudice Caused by the Delay
The defendant bears the burden to make a prima facie showing of prejudice.
State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999). If shown, the State
must prove that “the accused suffered no serious prejudice beyond that which ensued
from the ordinary and inevitable delay.” Id. We assess prejudice “in the light of the
interests of defendants which the speedy trial right was designed to protect” in
determining prejudice caused by the delay. Barker, 407 U.S. at 532, 92 S. Ct. at
2193. The right to a speedy trial is designed to protect the following three interests
of a defendant: (1) prevention of oppressive pretrial incarceration; (2) minimization
of anxiety and concern of the accused; and (3) limiting the possibility of impairment
of the accused’s defense. Id. The last type of prejudice is the most serious, although
a defendant’s claim that his right to a speedy trial was violated does not absolutely
require that he demonstrate prejudice to his ability to present a defense. Zamorano
v. State, 84 S.W.3d 643, 652.
Delay does not per se prejudice a defendant. See Barker, 407 U.S. at 519; 92
S. Ct. at 2186. For example, if a trial court experiences a backlog of cases on its
docket, a defendant is able to more effectively negotiate for a plea bargain and
otherwise manipulate the system. Id. Witnesses also become unavailable and
memories fade as time passes. Id. 407 U.S. at 521; 92 S. Ct. at 2187. Considering
that the State bears the burden of proof at trial, delay can be either employed or
acquiesced to as a defense tactic. Id. 407 U.S. at 522; 92 S. Ct. at 2187.
Massey contends that he was prejudiced by the delay because: (1) “he, his
counsel and investigator are now unable to locate numerous witnesses to the events
that transpired the day of the alleged incident”; (2) he “cannot recall with accuracy,
after a period of almost four years, the specific times and places he was at during the
day of the alleged offense”; (3) “he was caused to suffer mental anguish and concern
as a result of the pending case”; and (4) “he could have run any time received for the
current offense concurrent with the time he was serving in TDCJ for the past three
years.” The State does not address Massey’s specific contentions, but instead
contends that “Massey caused his own delay in not asserting his right to a speedy
trial” and, because he acquiesced to the delay, he suffered no prejudice. We address
each of Massey’s contentions.
Witness Unavailability and Evidence Pertaining to the Offense
Where the basis for prejudice is witness unavailability, a defendant must
demonstrate that: (1) the witness was unavailable at time of trial; (2) the witness’
testimony would have been relevant and material; and (3) the defendant exercised due
diligence in an attempt to locate the witnesses. Clarke v. State, 928 S.W.2d 709, 716
(Tex. App.—Fort Worth 1996, pet. ref’d). Massey testified that, while incarcerated,
he unsuccessfully attempted to contact witnesses that he thought would be favorable
to his defense by sending them letters. Massey explained, “there was this girl that I
was talking to. I wrote her, and my letter came back - - everybody I write [sic] - -
most of the people I wrote, they - - I never heard anything else from them.” Massey
testified that he knew how to address an envelope, and that he provided correct
addresses on the envelopes, but that all of his letters were returned, stamped
“insufficient address.” Massey also testified that he did not have “the opportunity to
discuss his case with any investigators,” and insinuated that had he that opportunity,
he may have been able to locate the unavailable witnesses.
On cross-examination, the prosecutor questioned Massey regarding the
existence of the unavailable witnesses. Massey testified that “[t]here was a Barbara,”
but was unable to recall her last name. The prosecutor then referenced the letters that
Massey contended he sent, and the following colloquy occurred:
[Massey]:I didn’t never say that I wrote no girl for no help.
[State]:Yes, [you] did; you said you wrote a letter to a potential
witness and some - - and it was a girl and you got it back
insufficient address.
[Massey]:No, no. Maybe you misunderstood me.
[State]:Maybe you can correct me. To whom did you send all
these letters to [sic]?
[Massey]:What do you want?
[State]:I want to know - -
[Massey]:I’m not understanding - -
[State]:The names of the witnesses you say you cannot find.
Massey then explained that, in addition to attempting to locate Barbara, Massey also
attempted to locate a witness named Meosha Laymon. Massey did not, however,
offer any evidence demonstrating the subject matter of their testimony, or that it
would have been relevant and material to his defense. See Clarke, 928 S.W.2d at 716
(requiring defendant show witness testimony would have been relevant and material).
Massey offered no evidence suggesting that he was unable to hire an investigator, and
the prosecutor elicited testimony from Massey suggesting that he was unaware
whether his attorney requested that the court appoint an investigator. On redirect
examination, Massey’s attorney did not attempt to controvert that testimony. We
conclude that Massey failed to demonstrate that the testimony of the unavailable
witnesses would have been relevant and material, and that he exercised due diligence
in an attempt to locate the potential witnesses.
Closely related to Massey’s contention that he was prejudiced by the delay—
because of his inability to locate witnesses to the events that transpired the day of the
robbery—is his contention that he is unable to recall with accuracy his whereabouts
during the day of the robbery. In order to demonstrate prejudice caused by fading
memories, Barker requires that a defendant show that “lapses of memory” are in some
way “significant to the outcome” of the case. See Barker, 407 U.S. at 534, 92 S. Ct.
At 2194; see also State v. Munoz, 991 S.W.2d 818, 829 (Tex. Crim. App. 1999).
Massey’s general contention on appeal that he “cannot recall with accuracy, after a
period of almost four years, the specific times and places he was at [sic] during the
day of the alleged offense” is insufficient to demonstrate that his defense was
prejudiced by his allegedly fading memories. See Munoz, 991 S.W.2d at 829.
Moreover, Massey has not cited to any evidence in the record to support this
proposition; he merely raises the contention on appeal and has therefore waived this
argument. See Tex. R. App. P. 33.1. We have reviewed Massey’s testimony, and
note that Massey did not aver that the delay he experienced resulted in an inability to
recall his whereabouts on the day of the robbery.
Massey experienced several minor lapses of memory while testifying, but those
memory lapses did not pertain to the specific times and places where he was on the
date of the robbery. Instead, Massey was unable to recall the “exact date” or “time
frame” that the court appointed his attorney, the name of the individual who served
him with the aggravated robbery and escape indictment, the exact date he received
treatment at TDCJ’s mental health facility, and the last name of “Barbara,” an
unavailable witness. Because Massey presented no evidence at the hearing in support
of his appellate contention that his memory lapses prohibited him from recalling with
accuracy his whereabouts during the day of the robbery, we hold that he has failed to
show that his “lapses of memory” were in some way “significant to the outcome” of
his case. Munoz, 991 S.W.2d at 829.
Mental Anguish
Relying upon his testimony, which he asserts is corroborated by medical
evidence, Massey contends that the delay he experienced caused him to suffer mental
anguish and concern. Massey testified that he was “concerned” about the pending
escape and aggravated robbery charges. Massey explained,
[W]hen I caught the chain . . . I was trying to get back and I couldn’t get
in touch with nobody. I was stressing - - when I say ‘stressing,’ I mean
. . . I wasn’t hardly eating. I was having problems, because I know I had
this pending charge and I couldn’t get - - it was like I was stuck down
there. And no one was trying to get me back into court. They wouldn’t
hear me. I was doing what I was supposed to do. They just wasn’t
hearing me.
Massey testified that his anxiety required that he receive treatment at Skyview,
TDCJ’s unit for psychiatric care. Massey testified that he informed his treating
physicians and counselors at Skyview that the pending charges were the source of his
anxiety and stress, that he was given Zoloft to treat his symptoms, and that he
continued to suffer mental anguish while in TDCJ’s custody.
On cross-examination, however, Massey admitted that he was treated at
Skyview before he was indicted for aggravated robbery and escape, and only one
month after returning to TDCJ’s custody. Massey’s only explanation for why he no
longer takes Zoloft was because he was transferred to another unit “where they don’t
give that.”
The medical evidence reflects that, on August 3, 1999, Massey complained of
stress, of hearing voices, and of seeing things such as birds, the gates of hell, fire, and
skeletons. The attending nurses’ notes reflect, however, that, on August 3, 1999,
Massey stated, “I haven’t told the psych doctor the truth.” Massey’s records indicate
that he desired to “talk to him again so I can tell him the truth.” The treating
physician’s notes reflect that Massey was interviewed on August 5, 1999. During that
interview, he stated “that he has been having some depressive [sic] mood and for that
reason wishes to continue on medication as an outpatient.” According to his medical
records, Massey was initially placed on Prozac at seventeen or eighteen years of age,
and used Prozac in conjunction with various street drugs. Massey’s medical records
address TDCJ’s basis for proscribing antidepressant drugs to treat his depression:
He recently was placed in Walker County Jail where his Prozac was
continued because it had been restarted in the free world. He was
transferred to Skyview because at his unit of assignment he was
complaining of depressed mood and requesting that he be restarted on
medication. There are notes about him wanting to be on medication so
that he will not have to work in the field, but because of his prior psych
history and his presentation today, it appears that he does benefit from
being on antidepressant.
Although Massey testified that the delay he experienced caused him to suffer
mental anguish and concern over the pending charges, the medical evidence he
presents does not support this specific contention. Moreover, Massey ignores the
controverting evidence that he sought treatment for stress prior to being indicted for
escape and aggravated robbery, and that his medical records reflect that he was
untruthful to the healthcare providers at Skyview. His medical records also suggest
that he may have requested medical treatment in order to avoid working in the field,
and they disclose that Massey previously had experienced symptoms of depression,
and requested drugs to treat it. In such circumstances, we view the evidence in a light
favorable to the trial court’s ruling, and conclude that this evidence does not support
Massey’s speedy trial claim.
Possibility of Concurrent Time
Massey also contends that he was prejudiced because he was denied the
“chance” to serve portions of his aggravated robbery sentence concurrently with the
remainder of another sentence he served in TDCJ after he violated his parole. The
State does not directly respond to this argument, but instead contends that Massey’s
failure to assert his right to a speedy trial, combined with the fact that he entered a
plea of guilty pursuant to a plea bargain demonstrates that he suffered no prejudice.
The State arrested Massey in May 1999, and returned him to TDCJ in July
1999 for a parole violation on a previous felony conviction, where he served the
remainder of that sentence. Massey was indicted in this case on October 26, 1999.
Massey received notice that Walker County placed a detainer on him in November
1999. TDCJ discharged Massey in December 2001, and Walker County officials took
him into their custody to answer for the current charges pursuant to the detainer.
Massey testified that he understood that if he were convicted and sentenced for the
charged offenses, he would receive credit for time served from the date the detainer
was launched. The trial court sentenced Massey to thirty years’ confinement pursuant
to a plea bargain, and Massey received 327 days of credit on that sentence. On
appeal, he has not challenged the amount of time the trial court credited towards the
satisfaction of his sentence.
In Bailey v. State, 885 S.W.2d 193, 202 (Tex. App.—Dallas 1994, pet. ref’d),
the Court of Appeals considered and rejected Massey’s very argument under
circumstances almost identical to this case. Bailey was indicted in Dallas County in
July 1988. Id. at 201. In November 1991, Bailey was arrested in Harris County on
an unrelated charge, and Dallas County placed a detainer on Bailey the day after his
arrest. Id. Bailey was convicted and sentenced in Harris County in November 1991,
and completed the sentence in May 1992, whereupon the State transferred him to
Dallas County pursuant to the detainer. Id. On appeal, Bailey, like Massey,
contended that he was prejudiced by the loss of the opportunity to serve concurrent
sentences. The Court of Appeals rejected Bailey’s argument, concluding that he was
not prejudiced by the loss of concurrent sentences in the Dallas County conviction.
Id. at 202. Here, Massey successfully negotiated for a plea bargain, and thus we
cannot assume that Massey was prejudiced by the loss of the “chance” to serve
concurrent sentences. See Barker, 407 U.S. at 519; 92 S. Ct. at 2186 (noting that
defendants in courts with overcrowded dockets may more effectively negotiate plea
bargains). Massey has not shown that had he been given a speedier trial, it would
have allowed him to serve sentences concurrently in any way that would have
benefitted him.
We conclude that Massey has not demonstrated that he was prejudiced by the
delay he experienced. He did not demonstrate that the testimony of the unavailable
witnesses was relevant and material, that he exercised due diligence in his attempt to
locate the missing witnesses, nor that his lapses in memory were significant to the
outcome of his case. Although Massey testified that the delay caused him to suffer
mental anguish, the trial court observed Massey and was able to evaluate the
credibility of his interested and controverted testimony concerning this contention.
See Munoz, 991 S.W.2d at 821(reviewing court reviews factual issues in speedy trial
claim for abuse of discretion). Moreover, the medical evidence that Massey offered
controverts his own testimony, calls into question his credibility, and demonstrates
that he has previously received medication for the symptoms he contends evidences
his mental anguish. Finally, Massey agreed to the terms of his plea bargain, does not
contend that his plea was involuntary, and the trial court assessed punishment as
recommended.
Conclusion
We conclude, based upon the factors established in Barker, that the State did
not violate Massey’s right to a speedy trial. Although the explanation for the delay
weighs slightly against the State, Massey failed to assert his right to a speedy trial,
and did not demonstrate that he was prejudiced by the delay. We therefore conclude
that the trial court properly denied Massey’s motion to dismiss the indictment, and
affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Taft, Jennings, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
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216 Ga. 27 (1960)
114 S.E.2d 370
SPRATLIN et al.
v.
SPRATLIN, Executor, et al.
20844.
Supreme Court of Georgia.
Argued April 11, 1960.
Decided May 5, 1960.
James W. Arnold, Guy B. Scott, for plaintiffs in error.
Howell C. Erwin, Jr., Erwin, Birchmore & Epting, contra.
ALMAND, Justice.
James E. Spratlin and his wife, Gussie Spratlin, filed their suit against James E. Spratlin and W. K. Carithers, executors of the will of the late Martha Winn Dudley, and three named persons as devisees under the will of Martha Winn Dudley, it being alleged that the executors had accepted the trust and qualified, the will having been probated. The petition alleged that in September, 1956, the testatrix made an *28 agreement with the plaintiffs, that, if they would come to her home, live with her, nurse her, and look after her household affairs until her death, she would make a will devising to them her residence at 670 W. Broad Street, Athens, Georgia. It was further alleged that though they fully complied with the agreement by moving into the home of the testatrix, she breached the contract by devising her residence to the three named defendantdevisees. The prayers were that the defendant-executors be required to specifically perform the contract by deeding the property to the plaintiffs.
The defendants demurred generally to the petition on the grounds: (a) that the plaintiff, James E. Spratlin, having accepted the trust by qualifying and acting as one of the executors of the will of the testatrix, is estopped from setting up title or claim to the property adverse to his trust under the will; and (b) that James E. Spratlin as an individual cannot maintain an action against himself as an executor under the will of Martha Winn Dudley.
The court sustained these demurrers and dismissed James E. Spratlin as a party plaintiff. The case is here on a bill of exceptions assigning error on this order.
The court properly sustained the demurrers and dismissed James E. Spratlin as a party plaintiff. Code § 38-117, which provides that "Trustees and other representatives with custody of papers have ample opportunities to discover defects in the title of property in their care and are estopped from setting up title adverse to their trust," has been applied on several occasions where executors and administrators have sought as individuals to sue themselves in their capacity as executors and administrators and set up claims adverse to the interests of the estate they are administering.
In Hardeman v. Ellis, 162 Ga. 664 (4) (135 S. E. 195), it was held that one who had qualified as an executor, taken charge of the estate, and after administering the estate for two years resigned his trust, was estopped thereafter from suing the administratrix of the testatrix's estate and attempting to enforce a contract with the testatrix by claiming the entire estate. It was there said (pp. 685, 686): "Where one is in a situation in which *29 he may elect between two inconsistent positions or proceedings, the choice of his position or proceeding must be made before bringing suit. He can not bring either action without selecting and determining to accept and occupy a position consistent with that action or position and inconsistent with the other. If with knowledge he chooses the position he will occupy, it would be trifling with the court to allow a change. Since the choice is made and one of the alternative positions or proceedings has been adopted, the act operates at once as a bar to the other and the bar is final and absolute . . . By probating the will of testatrix, which disposed of a large estate, and by qualifying as her executor to dispose of the same in accordance with her directions contained therein, plaintiff in effect represented to the court of ordinary that testatrix died seized and possessed of an estate which she had undertaken to dispose of by her will. By qualifying as her executor he became bound to administer her estate in conformity to directions given in her will. At the time he probated her will and qualified as her executor he was fully aware of his rights under the contracts with her and her husband which he seeks to have specifically performed in the present proceeding. He was fully aware that if said contracts were in fact made and were specifically performed, the testatrix had no estate of which she could dispose by will. Under these circumstances the plaintiff was put to his election of rights, positions and proceedings. He had to make choice of rights, proceedings and positions. He had to choose between probating the will, accepting the office of executor, of executing the will and of accepting the benefits accruing to him under this instrument, and the rights accruing to him under the enforcement of said contracts. These positions were inconsistent. His election to proceed under the will concludes him from undertaking to have these contracts enforced. So we are of the opinion that the plaintiff, in determining to probate this will, in qualifying as executor and in executing the same in part, became estopped, `upon grounds of public policy and good faith,' from asserting his rights under the contracts sought to be enforced in this case." See also Crummey v. Crummey, 190 Ga. 774 (10 S. E. 2d 859), and Parnelle v. Cavanaugh, 191 Ga. 464 (12 S. E. 2d 877), where the rule was applied to administrators.
*30 The plaintiff in error contends that the ruling in Hardeman v. Ellis, 162 Ga. 64, supra, is not applicable here because (a) his action is one seeking redress as a creditor of the testatrix; (b) he and his wife do not claim the entire estate of the testatrix; and (c) the rule is not applicable where there is more than one executor. None of these grounds is valid. The plaintiffs do not seek a money judgment against the estate, but seek to require the defendant executors to convey the property to them. Whether the plaintiffs seek to recover all or a part of the estate is immaterial for the reason that the claim of James E. Spratlin as an individual is against himself as an executor, and therefore is inconsistent with and adverse to his duties as a trustee.
As pointed out in the unanimous opinion of this court in Crummey v. Crummey, 190 Ga. 774, supra, in the majority holdings in MacDougall v. National Bank of Columbus, 150 Ga. 579 (2) (104 S. E. 630), and McFadden v. Dale, 155 Ga. 256 (1a) (116 S. E. 596), to the effect that the rule which prohibits a person from suing himself does not apply where there are two or more executors, the principle of law which inhibits a fiduciary from claiming adversely to his trust does not appear to have been invoked, and those decisions were grounded upon other and different principles. See also Perdue v. McKenzie, 194 Ga. 356 (21 S. E. 2d 705), and Williams v. McHugh, 17 Ga. App. 59 (86 S. E. 272).
It was not error to sustain the demurrers and dismiss James E. Spratlin as a party plaintiff.
Judgment affirmed. All the Justices concur.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6706
TIMOTHY WAYNE ABBOTT,
Petitioner - Appellant,
versus
RON ANGELONE,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-02-941-7)
Submitted: August 26, 2004 Decided: September 2, 2004
Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
David Bernard Hargett, HARGETT & WATSON, P.L.C., Richmond,
Virginia, for Appellant. Steven Andrew Witmer, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Wayne Abbott seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his petition filed under 28 U.S.C. § 2254 (2000).
An appeal may not be taken from the final order in a § 2254
proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of
appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently
reviewed the record and conclude that Abbott has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 2 -
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138 F.Supp.2d 1335 (2001)
USEC, INC. and United States Enrichment Corporation, Plaintiffs, and
Ad Hoc Committee of Domestic Uranium Producers, Plaintiff,
v.
The UNITED STATES, Defendant,
and
The Government of Kazakhstan, National Atomic Company Kazatomprom, and Nukem, Inc., Defendant-Intervenors.
Slip Op. 01-34. Court No. 99-08-00547.
United States Court of International Trade.
March 29, 2001.
*1336 Steptoe & Johnson LLP, Richard O. Cunningham, (Sheldon E. Hochberg), Eric C. Emerson, Shannon P. MacMichael, for Plaintiffs USEC Inc., and United States Enrichment Corporation.
(Lyn M. Schlitt), General Counsel, Marc A. Bernstein, Acting Assistant General Counsel, Michael K. Haldenstein, Office of General Counsel, U.S. International Trade Commission, for Defendant United States.
Shearman & Sterling, (Thomas B. Wilner), for Defendant-Intervenors the Republic of Kazakhstan and the National Atomic Company Kazatomprom.
White & Case, LLP, (Carolyn B. Lamm), Adams C. Lee, Christina C. Benson, for Defendant-Intervenor NUKEM, Inc.
MEMORANDUM OPINION AND ORDER
BARZILAY, Judge.
I. INTRODUCTION
This matter is before the court pursuant to Plaintiffs' USEC Inc. and United States Enrichment Corporation (collectively, "USEC") Motion for Reconsideration brought under USCIT R. 59.[1] Plaintiffs request that the court reconsider its decision in the above-captioned case denying USEC's Motion for Judgment on the Agency Record, reverse its decision in Slip Opinion 01-08, dated January 24, 2001 ("Opinion") and remand the matter to the International Trade Commission ("ITC" or "Commission") for further consideration of its analysis of material injury or threat thereof.[2] In its previous Opinion, the court held that the ITC's final negative determination in Uranium from Kazakhstan, 64 Fed.Reg. 40897 (July 28, 1999), in which the Commission ascertained that uranium imported from Kazakhstan caused neither material injury nor threat of material injury to the domestic uranium industry, was supported by substantial evidence and in accordance with law. According to USEC, the court's determination that the Department of Commerce ("Department" or "Commerce") did not consider the inventory of uranium enriched in Russia but located in Kazakhstan ("Kazakh Stockpile" or "Stockpile") to be of Kazakh origin is "flatly contradicted" by recent statements from the Department. Mem. of P. & A. in Supp. of USEC's Mot. for Reh'g and Modification of this Court's Decision of January 24, 2001 ("Pls.' Mem.") at 4. As such, USEC contends, the court erred in determining that the Commission was correct in excluding the Stockpile from its injury determination. See id. For the reasons stated herein, the motion is denied and the original judgment is affirmed in all respects.
II. DISCUSSION
The grant or denial of a motion for rehearing and modification under USCIT R. 59 lies within the sound discretion of the court. Mita Copystar America, Inc. v. United States, 22 CIT ___, ___, 994 F.Supp. 393, 394 (1998); Asociacion Colombiana de Exportadores de Flores v. United States, 22 CIT ___, ___, 19 F.Supp.2d 1116, 1118 (1998). Several principles guide the court in determining whether reconsideration is warranted. A rehearing is not granted to allow a losing *1337 party to relitigate a case, but rather to address a fundamental or significant flaw in the original proceeding. See Asociacion, 22 CIT at ___, 19 F.Supp.2d at 1118 (citing St. Paul Fire & Marine Ins. Co. v. United States, 16 CIT 984, 984, 807 F.Supp. 792, 793 (1992)). Furthermore, a court's previous decision will not be disturbed unless it is "manifestly erroneous." Mita Copystar, 22 CIT at ___, 994 F.Supp. at 394 (citing United States v. Gold Mountain Coffee, Ltd., 8 CIT 336, 337, 601 F.Supp. 212, 214 (1984)(quoting Quigley & Manard, Inc. v. United States, 61 C.C.P.A. 65, 496 F.2d 1214, 1214 (1974))). The circumstances in which a "significant flaw" or "manifestly erroneous" decision is present are:
(1) an error or irregularity in the trial; (2) a serious evidentiary flaw; (3) a discovery of important new evidence which was not available even to the diligent party at the time of trial; or (4) an occurrence at trial in a nature of an accident or unpredictable surprise or unavoidable mistake which impaired a party's ability to adequately present its case.
Id. (citing Gold Mountain, 8 CIT at 336-337, 601 F.Supp. at 214). USEC has not persuaded the court that any of the established grounds for reconsideration of its decision are present in this case.
USEC bases its request for reconsideration of the Stockpile issue on a January 19, 2001, letter from Secretary of Commerce Norman Mineta to Senator Mitch McConnell ("Mineta letter") regarding Commerce's scope inquiry into the Stockpile. First, as Defendant correctly notes, USEC is asking the court to consider documents that were not part of the administrative record in this case. Under the appropriate standard of review of an injury determination, the court determines whether the Commission's decision is supported by substantial evidence on the record or is otherwise in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B)(1994). Recognizing that the court may not consider the Mineta letter as part of the administrative record, Plaintiffs ask the court to take judicial notice of the letter pursuant to Rule 201(d) of the Federal Rules of Evidence, which provides: "[a] court shall take judicial notice if requested by a party and supplied with the necessary information."
Rule 201(b) of the Federal Rules of Evidence states: "a judicially noticed fact must be one not subject to reasonable dispute." The two facts that plaintiffs contend are presented by the Mineta letter are (1) that the Department approved shipments of uranium from the Stockpile while the Russian Suspension Agreement was still in effect, and thus treated the Stockpile "de facto... as Kazakh-origin uranium;" and (2) that the Department has not yet clarified its original scope determination regarding the Stockpile. See USEC Br. at 8; Mem. of P. & A. in Supp. of the Resp. of NUKEM to USEC's Mot. for Rehearing and Modification of this Court's decision of January 24, 2001 ("NUKEM Br.") at 5. The issue of the origin of the uranium from the Stockpile is a central legal issue in this case. The court agrees with Defendant-Intervenor NUKEM and Defendant that "the Mineta Letter and the inferences drawn therefrom are not facts at all;" but that Plaintiffs seek to introduce the letter "to prove facts that are not indisputable...." See NUKEM Br. at 9; Def.'s Br. at 6. The court declines to deem contentious points of law undisputed facts, and therefore refrains from taking judicial notice of the letter.
Even if the court were to determine that the letter indeed contained indisputable facts and that it could appropriately take judicial notice of the letter, the *1338 court agrees with Defendant that the letter itself provides no important new evidence warranting reconsideration. The letter indicates that the Department had not reached a determination in the scope inquiry regarding the Stockpile, and that a substantial quantity of enriched uranium from Kazakhstan entered the United States. This "evidence" is neither new nor important, but "merely cumulative information reasserting the same facts asserted by Plaintiffs at the Commission and again before this court." NUKEM Br. at 4. The court recognized in its Opinion that shipments of uranium from the Kazakh Stockpile had been imported into the U.S. while the suspension agreement was pending, and that the Department had not yet issued a final determination regarding the formal scope inquiry into the origin of the Kazakh Stockpile. See Opinion at 5, n. 7. Yet, these facts did not affect the court's ability to determine whether the Commission's determination was supported by substantial evidence and in accordance with law. See Opinion at 5.
As the court previously stated, "Plaintiffs are not entitled to judicial review of the DOC's scope determination, but may only raise the issue of whether the ITC has correctly construed the scope determination ...." Opinion at 14. Plaintiffs are attempting to convince the court to reconsider its decision, based on confirmation of the fact that the question of the Stockpile's origin has not been resolved by Commerce. See Pls.' Br. at 9-10. The court sees no important difference between the facts before the court at the time of the Opinion and the facts contained in the Mineta letter. The court can find no reason to reconsider its previous opinion that the Commission's determination was supported by substantial evidence and in accordance with law.
In accordance with the applicable standard of review and for the foregoing reasons, it is hereby
ORDERED that Plaintiffs' Motion for Rehearing and Modification of the court's decision is DENIED; and it is further
ORDERED that the court's opinion in Slip Op. 01-08, dated January 24, 2001, is affirmed in all respects.
NOTES
[1] Plaintiff Ad Hoc Committee of Domestic Uranium Producers did not participate in this proceeding.
[2] Familiarity with the Opinion is presumed.
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175 P.3d 461 (2007)
343 Or. 618
Dennis Leroy GORDON, Petitioner on Review,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review.
CA A121972; SC S054400.
Supreme Court of Oregon.
Argued and Submitted September 11, 2007.
Decided December 28, 2007.
Harrison Latto, Portland, argued the cause and filed the briefs for petitioner on review.
Carolyn Alexander, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before DE MUNIZ, Chief Justice, and GILLETTE, DURHAM, BALMER, KISTLER, and WALTERS, Justices.[**]
DE MUNIZ, C.J.
In this parole review proceeding, petitioner, a prison inmate, seeks review of an order of the Board of Parole and Post-Prison Supervision (the board) deferring his initial parole release date for two years. Petitioner contends that, under the board's 1988 rules, which he asserts are applicable to his case, the board was required to release him on parole on his initial parole release date in August 1999. Over the years since the board's first administrative review of its deferral of petitioner's anticipated release, the board has issued multiple orders, setting out various alternative rationales for deferring his release date, all of which petitioner claims *462 are pretextual and logically unsound. Ultimately, the board issued a final administrative review response dated June 2, 2003, in which it concluded that its 1984 rules, and not its 1988 rules, applied to petitioner's case and permitted the deferral. Petitioner sought judicial review of that order and the Court of Appeals affirmed it without opinion. Gordon v. Board of Parole, 207 Or.App. 435, 142 P.3d 125 (2006). For the reasons that follow, we reverse the decision of the Court of Appeals and remand the case to the Board of Parole and Post-Prison Supervision for further proceedings.
The historical and procedural facts of this case are undisputed. In 1975, petitioner murdered a woman in front of her two small children, after having raped the same woman at gunpoint in her home a month earlier. In 1976, petitioner was tried and convicted of those crimes and sentenced to life in prison. The sentencing scheme in effect at the time that petitioner committed his crimes was known as the "discretionary" system. Under that system, each inmate served an indeterminate sentence and the board would consider periodically whether the inmate was suitable for release on parole. See former ORS 144.175 (1975), repealed by Or. Laws 1977, ch. 372, § 18 (providing for release on parole for inmates who, by rules or board order, were eligible for parole, unless board found certain enumerated reasons for deferring or denying release); former ORS 144.180 (1975), repealed by Or. Laws 1977, ch. 372, § 18 (setting out factors board could consider in determining whether inmate should be released on parole). The board was required to assess the status of each inmate within six months of incarceration and at least once every two years after that. Former ORS 144.221 (1975), repealed by Or. Laws 1977, ch. 372, § 18. If the board determined that the inmate was suitable for parole, it gave the inmate a parole hearing date, but did not set a firm date for release, and the hearing date could be changed at the board's discretion. Id. Under former ORS 144.175 (1975), the board also could have chosen to deny an inmate release entirely for certain enumerated reasons.
In accordance with that scheme, petitioner first appeared before the board for a hearing in 1976. The parole analyst's report, prepared for that hearing, recommended that petitioner be denied release on parole. The board did not agree with that recommendation, however; instead, it scheduled a parole hearing date for May 2006 and scheduled an assessment and psychiatric review for May 1978 and every two years thereafter, until the parole hearing date.
In 1977, the legislature adopted a new sentencing scheme that replaced the old discretionary system with a new "matrix" system. Or. Laws 1977, ch. 372. Under the matrix system, an inmate must be assigned an initial parole release date within a specified time of being sentenced. ORS 144.120(1).[1] That initial release date is based on a matrix that ranks, on one axis, the seriousness of the crime, and on the other axis, the inmate's criminal history. See ORS 144.780 (directing board to adopt rules setting ranges of duration of imprisonment). Notwithstanding the directive in ORS 144.120(1) to the board to set an initial release date, the board may deny parole entirely if it determines that the inmate's offense was particularly violent or if the inmate has been diagnosed by a psychiatrist or psychologist as having a severe emotional disturbance such as to constitute a danger to the health or safety of the community. ORS 144.120(4).[2] Once the board has set an *463 inmate's initial release date under ORS 144.120, however, the board may postpone that date for only three reasons: if the inmate has engaged in serious misconduct while in prison, the board must postpone the release date, ORS 144.125(2); if the inmate has a severe psychiatric or psychological disturbance such as to constitute a danger to the health or safety of the community, the board may postpone the release date, ORS 144.125(3); and if the inmate's parole plan is inadequate, the board may defer the release date for not more than three months, ORS 144.125(4). In the absence of one of those grounds for postponement, the inmate has a legal right to release on the scheduled release date. ORS 144.245(1) (when board has set a parole release date, "the prisoner shall be released on that date unless the prisoner on that date remains subject to an unexpired minimum term during which the prisoner is not eligible for parole, in which case the prisoner shall not be released until the expiration of the minimum term");[3]Hamel v. Johnson, 330 Or. 180, 187, 998 P.2d 661 (2000) (under ORS 144.245(1), "if a prisoner does not have an unexpired minimum term, then the prisoner must be released on the scheduled release date") (emphasis in original).
After the legislature adopted the matrix system, the board adopted a policy under which it would permit inmates like petitioner, who were serving indeterminate sentences, to elect to be treated under the new matrix system. Over time, as the board amended its rules pertaining to the implementation of the new system, the board applied a policy under which it would consider each inmate's eligibility for release according to the statute and rules in effect when the inmate committed his or her crimes. For inmates who committed their crimes before the adoption of the matrix system and later elected to be treated under that system, the board applied a policy of determining the inmate's eligibility for parole according to the statute and rules in effect at the time of the inmate's election into the matrix system.
In August 1984, petitioner made such an election. The form that petitioner signed to effectuate that election recited, "I am aware that once I choose to receive a firm release date under the matrix, I cannot later request to be considered under the former `discretionary' system." The board conducted a hearing on the day petitioner made that election. It applied the matrix rules and, although the board could have denied petitioner release on parole entirely, it unanimously decided to set an initial release date of March 15, 2000.
Petitioner sought administrative review of and ultimately attempted to appeal that decision. In the course of that appeal, the board discovered that the hearing to set petitioner's initial release date had not been recorded. The board therefore set another hearing for November 7, 1984, for the purpose of redetermining the "facts and findings" made at the earlier hearing. The record is unclear as to whether a hearing actually took place on November 7. However, on November 14, 1984, the board issued an order continuing the matter and stating,
"Board actions of 8/10/84 and 11/7/84 are VOID. Refer to analyst for recomputation of History/Risk score and material to be considered by the Board is to be disclosed to the inmate. Reschedule upon completion."
The matter was continued on two subsequent occasions[4] and petitioner eventually appeared before the board on May 15, 1985. In response to petitioner's attempt to clarify his position with regard to the August 1984 order setting his initial release date, the presiding board member, Aronson, asked petitioner whether he wanted to be considered *464 under the matrix system. Petitioner responded no, adding that he considered himself to remain subject to the discretionary system, because the earlier order setting his release date was invalid. Aronson agreed with that assessment and then asked petitioner whether he "want[ed] to go under the discretionary system." Petitioner responded in the affirmative. Aronson then presented petitioner with a document, explaining that, if petitioner signed it, "we'll leave you under the discretionary system." Petitioner signed that document, and Aronson recapitulated, "[Y]ou will note on the record that [petitioner] now is [sic] chosen to remain under the discretionary system. You are aware that you still have the option to go back?" Petitioner again responded in the affirmative.
On May 20, 1985, the board issued an order stating that petitioner "signed [an] application for purpose of remaining under the Discretionary System" and setting a parole hearing date of September 2005. In that order, the board cited the criteria listed in former ORS 144.175 (1975). The board later amended that order to include reference to a review hearing in October 1986. In January 1986, the board issued another order clarifying that the reason for the October 1986 review hearing was that "[t]his inmate is under the Discretionary System. That dictates that he must be seen every two (2) YEARS." The board issued several additional orders between January 1986 and December 1987, all confirming that petitioner remained subject to the discretionary system.
In August 1988, petitioner signed and submitted another request to be considered under the matrix system. Again, the form that petitioner signed to effectuate that election recited, "I am aware that once I choose to receive a firm release date under the matrix, I cannot later request to be considered under the former `discretionary' system." In response to petitioner's election, the board conducted a hearing on January 10, 1989, to determine whether to set an initial release date. A three-member majority of the board, after considering petitioner's criminal history, the seriousness of his crime, and various aggravating factors, set an initial release date of March 15, 2000, following 294 months in prison. One board member would have required petitioner to serve 300 months in prison, and one member would have denied parole release entirely because of the particularly violent nature of petitioner's crimes.
In August 1989, the board advanced petitioner's release date by seven months. ORS 144.122(1)(a) (permitting the board to reset release date to an earlier date if it finds that petitioner has demonstrated "an extended course of conduct indicating outstanding reformation"). The board set a new release date of August 15, 1999.
In 1998, in anticipation of petitioner's upcoming release, the board directed petitioner to be evaluated by a psychologist, Dr. Page. Page provided a report of his evaluation to the board. In that report, after describing petitioner's crimes and personal history, Page stated that petitioner had "programmed well" during his 22 years of incarceration, having completed numerous college credits and career training programs, and having undergone regular psychological and sex offender counseling. Under behavioral observations, Page stated, among other things, that petitioner was "logical, coherent, well oriented, and showed intactness of recent and remote memory." In a section entitled "Mental Status Exam," Page wrote that petitioner's
"self report was very well organized, bespeaking average or higher intellect. His mood was normal to positive, with congruent affect. [Petitioner] contributed to rapport and familiarity through various gestures and anecdotes. There was no indication of thought disorder, and he denied suicidal/assaultive ideation. Insight may be adequate, and judgement [sic] has been satisfactory under prison conditions."
In a section entitled "Treatment Summary," Page stated that petitioner showed no psychopathology and no need for mental health intervention, but that "[h]is crime appears to have been the outgrowth of characterological dysfunction."
In assessing petitioner's risk to the community, with reference both to petitioner's likelihood of reoffending and his potential for *465 violence, Page stated that he could not confidently assess either of those things, notwithstanding petitioner's apparent success in prison, because of the violent nature of petitioner's crimes. Page observed, "As [petitioner] states, his crime was a choice and I know of no measure for confidently assessing whether he again would make similar choices, if released." Page ultimately diagnosed petitioner with alcohol dependence in remission, a personality disorder NOS [not otherwise specified], with antisocial features, and a GAF score of 95. GAF refers to the "Global Assessment of Functioning" used in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32-34 (4th ed. 1994) (DSM IV). A score of 95 is in the top range for such scores and reflects "[s]uperior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms." DSM IV at 32. In conclusion, Page offered,
"[Petitioner] presents no psychopathology in terms of psychosis, neurosis, or subjective stress, which would warrant deviation from standard penal policies related to his crime and sentencing structure. I suggest that his readiness for promotion be based on standard penal policies, presumably related to his programming and crime. He shows no need for mental health intervention, other than follow up for the sexual offender and for chemical dependency."
In February 1999, based on that report, among other information, the board determined that petitioner suffered from a "severe emotional disturbance" rendering him dangerous. Accordingly, the board, citing its authority under ORS 144.125(3), issued an order deferring petitioner's release on parole for two years.[5]
Petitioner sought administrative review of that order on a number of grounds, including, as relevant here, that the board did not have authority to defer his release date on the basis of severe emotional disturbance because Page's report did not support such a finding. In June 1999, the board issued an order rejecting petitioner's challenge, citing a then-recent Court of Appeals case, Weidner v. Armenakis, 154 Or.App. 12, 959 P.2d 623 (1998), withdrawn by order July 13, 1998, reasoning reaffirmed and readopted in Merrill v. Johnson, 155 Or.App. 295, 964 P.2d 284, rev. den., 328 Or. 40, 977 P.2d 1170 (1998).[6] In Weidner, the Court of Appeals reviewed ORS 144.125(3) (1991),[7] which provided:
"If a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner, the board may order the postponement of the scheduled parole release until a specified future date."
The Court of Appeals in Weidner had rejected the prisoner's argument that the foregoing provision required the psychological or psychiatric diagnosis itself to include a determination that the prisoner suffered from a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community." The court held that ORS 144.125(3) (1991), when read in context, did not require that a psychologist or psychiatrist recite the words "present severe emotional disturbance" in his or her diagnosis in order for the board to defer parole release on that basis. The court concluded that, although a psychiatric or psychological diagnosis is a prerequisite to the board's consideration whether the statutory criteria for deferral have been met, the phrase "present severe emotional disturbance" *466 is a legal conclusion and not a medical one, and, therefore, the decision whether a prisoner suffers from such a condition was for the board to make after considering all of the evidence in the record. Weidner, 154 Or.App. at 17-20, 959 P.2d 623.
Relying on that Court of Appeals decision, the board, in its June 1999 order in this case, stated that its review of Page's report, together with its exit interview of petitioner and other documents presented at the hearing, led it to conclude that petitioner suffered from a present severe emotional disturbance such as to justify deferring his parole release date for two years.
Meanwhile, in April 1999, the Court of Appeals had issued another decision pertinent to petitioner's case, Peek v. Thompson, 160 Or.App. 260, 980 P.2d 178, rev. dismissed, 329 Or. 553, 994 P.2d 130 (1999). Peek also addressed the board's authority to defer a release date under ORS 144.125(3) (1991). However, in Peek, the inmate argued that an administrative rule, OAR 255-60-006 (1988), which the court had not considered in Weidner or Merrill, controlled the board's parole release decisions during the period that that rule was in effect, and that rule made a psychiatric or psychological diagnosis that met the statutory requirements essential to the board's decision to defer an inmate's parole release date. The court in Peek therefore analyzed OAR 255-60-006 (1988), which also was in effect when petitioner in this case elected to be considered under the matrix system in August 1988.[8] That rule provided, in part:
"(7) The Board may order a psychiatric/psychological report anytime prior to release. If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may consider deferring parole release until a specified future date.
"(8) If the evaluation does not make a finding of severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parole release date and set parole conditions."
(Emphasis added.) The Court of Appeals held that the board had authority to adopt the foregoing rule, applicable to parole, and that that rule expressly required the board to affirm the parole release date unless the "evaluation" made the finding that ORS 144.125(3) (1991) contemplated. Peek, 160 Or.App. at 264, 980 P.2d 178. According to the court, reading the word "evaluation" in OAR 255-60-006(8) in context, it was apparent that that word could only have referred to the psychiatric or psychological report identified in OAR 255-60-006(7). Id. at 264 n. 3, 980 P.2d 178. Under that rule, then, the psychologist's or psychiatrist's report must "permit the Board to find that the psychologist diagnosed [the inmate] as having a severe emotional disturbance that constitutes a danger to the health or safety of the community." Id. at 266, 980 P.2d 178. The Court of Appeals stated that, in light of its earlier decision in Weidner, the board was not required to adopt a rule applying that interpretation of ORS 144.125(3) (1991), but that the rule clearly was a permissible interpretation of the statute, as demonstrated by the fact that the Court of Appeals had decided Weidner in a five-four en banc decision, with the dissent taking the position that a psychiatric or psychological diagnosis was a necessary prerequisite to deferral. Id. at 265, 980 P.2d 178. And, having adopted a rule limiting its discretion to defer parole release dates to those cases where a psychiatrist or psychologist had diagnosed an inmate with a present severe emotional disturbance, the Court of Appeals held, the board was required to follow that rule during the time that that rule was in effect. Id.
In response to the Court of Appeals decision in Peek, the board, on its own motion, reconsidered its June 1999 order deferring petitioner's release date. On July 25, 2000, the board issued another order explaining,
"In its [June 1999 order], the board applied the cases of Merrill v. Johnson and *467 Weidner v. Armenakis. Subsequently, the Court of Appeals issued its decision in Peek v. Thompson. It is the board's policy for discretionary inmates who opt into the matrix system to apply the rules in effect at the time the inmate opts into the matrix system. [Petitioner] opted into the matrix system on 8/27/88. The Peek decision applies to the rules in effect when [petitioner] opted into the matrix system. The board has now reconsidered this case under the Peek decision. The board considered the psychological evaluation as a whole and finds that it constitutes a finding of a present severe emotional disturbance such as to constitute a danger to the community."
The board then went on to point to various statements in Page's report that it believed supported that conclusion. Ultimately, the board concluded that it had properly deferred petitioner's parole release date for 24 months under OAR 255-60-006 (1988).
Petitioner then filed a habeas corpus petition, challenging the postponement of his parole release date. The state defended that action on the ground that the conclusions Page reached in his report were sufficient to trigger the board's authority to defer petitioner's release date under OAR 255-60-006 (1988), as the Court of Appeals interpreted that rule in Peek (known by that time as the "Peek rule"). The circuit court agreed with the state and dismissed the action in February 2001. Petitioner appealed and, again, the state defended on the same ground as it had in the circuit court. The parties argued the appeal in February 2003.
While the habeas corpus proceeding was pending, petitioner's two-year postponement had neared its end, and the board conducted another exit interview. Another psychologist, Dr. Rubin, had evaluated petitioner and issued a report. On May 2, 2001, the board again deferred petitioner's release on parole for two years, reaffirming that petitioner, having opted into the matrix system in 1988, was subject to the Peek rule, but concluding that Rubin's report diagnosed petitioner with a severe emotional disturbance, thereby triggering its authority to defer petitioner's release again.
Petitioner requested administrative review of that order,[9] and, in response, on May 29, 2001, the board issued another order affirming its decision to defer petitioner's release on parole. This time, however, the board offered an entirely new explanation: according to the board, the Peek rule did not apply to petitioner because he had first elected to be considered under the matrix rules in 1984, before the Peek rule had been promulgated, and under the 1984 rules, the board was entitled to base its decision to defer petitioner's release on all information available to it at the time of the hearing. In reversing its reasoning, the board informed petitioner that, because petitioner first attempted to opt into the matrix system in 1984, the board was required to apply the 1984 rules, because "[i]t would be an equal protection violation to allow discretionary system offenders to intentionally place themselves in a more favorable position for release when other offenders cannot."
Thereafter, in April 2003, the board issued an order announcing that it was withdrawing its July 2000 order, which was then under advisement in the Court of Appeals in petitioner's habeas corpus appeal, and moved the Court of Appeals to hold that appeal in abeyance. The Court of Appeals granted that motion.
In June 2003, the board issued a final order affirming its decision to defer petitioner's August 15, 1999, parole release date.[10] In that order, the board stated that, on its own motion, it was reconsidering its July 2000 order, in which it had reconsidered an earlier order deferring the release date in *468 light of the Court of Appeals decision in Peek. In the June 2003 order, the board stated:
"In [the July 2000 order], the board erroneously applied the rules in effect the second time [petitioner] opted into the matrix system on August 27, 1988. This was incorrect. [Petitioner] initially opted into the matrix system on August 10, 1984. He then reconsidered and requested that he be returned to the discretionary system on May 20, 1985. On August 27, 1988, [petitioner] submitted a request to once again have his case considered under the matrix system. It is the board's policy, when an offender opts into the matrix system on more than one occasion, to consider the laws in effect at the time that the offender first opts in. The board failed to do so in [petitioner's] case. To do otherwise would allow offenders under the discretionary system to place themselves in a more favorable position with regard to the board's rules than they would otherwise be by opting in and out of the matrix system."
As noted, petitioner sought judicial review of that order, arguing that it represented an arbitrary and ad hoc decision designed to avoid an outcome that the board did not desire, viz., that petitioner be released on parole on his 1999 release date. Petitioner argued, further, that if that order were invalidated, the board order effectively deferring his parole release date is the July 2000 order, in which the board applied the Peek rule to his case. And that order, according to petitioner, also cannot stand, because the board's decision to defer depended on the factually unsupportable conclusion that Page's report contains a diagnosis of present severe emotional disturbance.
We turn first to the question of the validity of the board's June 2003 order. Orders of the board are subject to judicial review under ORS 144.335(1).[11] Under ORS 144.335(3),[12] the appellate court reviews those orders using the standard of review set out in the Administrative Procedures Act (APA), ORS 183.482(8). ORS 183.482(8), in turn, provides:
"(a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:
"(A) Set aside or modify the order; or
"(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.
"(b) The court shall remand the order to the agency if it finds the agency's exercise of discretion to be:
"(A) Outside the range of discretion delegated to the agency by law;
"(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or
"(C) Otherwise in violation of a constitutional or statutory provision.
"(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding."
This case requires us to decide whether the board, in its June 2003 order, exercised its discretion in a manner "inconsistent with an agency rule, an officially stated agency position, or a prior agency practice" and did not adequately explain the inconsistency. ORS 183.482(8)(b)(B).
*469 The standards of review set out in ORS 183.482(8) reflect a legislative policy, embodied in the APA, that decisions by administrative agencies be rational, principled, and fair, rather than ad hoc and arbitrary. See generally Martin v. Board of Parole, 327 Or. 147, 957 P.2d 1210 (1998) (requiring board adherence to principles set out in ORS 183.482(8), including principle that orders reflect rational connection between agency's reasoning and its conclusions); Drew v. PSRB, 322 Or. 491, 499-500, 909 P.2d 1211 (1996) ("in addition to the statutory requirement that findings be supported by substantial evidence, agencies also are required to demonstrate in their opinions the reasoning that leads the agency from the facts that it has found to the conclusions that it draws from those facts") (emphases in original). In Green v. Hayward, 275 Or. 693, 552 P.2d 815 (1976), this court further explained the reasons for such requirements:
"If there is to be any meaningful judicial scrutiny of the activities of an administrative agency not for the purpose of substituting judicial judgment for administrative judgment but for the purpose of requiring the administrative agency to demonstrate that it has applied the criteria prescribed by statute and by its own regulations and has not acted arbitrarily or on an ad hoc basis we must require that its order clearly and precisely state what it found to be the facts and fully explain why those facts lead it to the decision it makes."
Id. at 706-08, 552 P.2d 815, quoting The Home Plate, Inc. v. OLCC, 20 Or.App. 188, 190, 530 P.2d 862, 863 (1975). Although the court in Green was referring to the requirement in ORS 183.482(8)(c) that agency orders be supported by substantial evidence, that reasoning applies equally to our review of agency orders under ORS 183.482(8)(b)(B). To summarize, then, we review the board's June 2003 order, in the context of its earlier orders in petitioner's case, to determine if the board's findings, reasoning, and conclusions demonstrate that it acted in a rational, fair, and principled manner in deciding to defer petitioner's parole release.
In the two orders in petitioner's case that the board issued before May 29, 2001, the board stated, "It is the board's policy for discretionary inmates who opt into the matrix system to apply the rules in effect at the time the inmate opts into the matrix system."[13] Applying that policy, in its July 25, 2000, and May 2, 2001, orders, the board stated that petitioner, having elected to be treated under the matrix system in August 1988, was subject to the Peek rule. Those orders, then, reflect the board's interpretation of its stated policy "to apply the rules in effect at the time the inmate opts into the matrix system" to require the application of the rules in effect at the time of an inmate's most recent, or effective, election. At the least, they reflect an agency practice to do so. However, in the June 2003 order under review in this proceeding, the board announced a policy under which it would apply to parole release decisions the rules in effect the first time an inmate opts into the matrix system.[14] That later order, thus, is "inconsistent with an agency rule, an officially stated agency position, or a prior agency practice." ORS 183.482(8)(b)(B).
The fact that the June 2003 order is inconsistent with the board's earlier policy or practice does not make it impermissible or unlawful, however. Rather, under ORS 183.482(8)(b)(B), an inconsistent order is subject to remand by the court only "if the inconsistency is not explained by the agency." We therefore turn to the explanations that the board has offered to support the change in policy.
In the two orders applying and then announcing its "policy" to apply the rules in *470 effect at the time of the first election for inmates who made multiple elections, the board gave two similar but distinct reasons for doing so. The May 29, 2001, order declared that "it would be an equal protection violation to allow discretionary system offenders to intentionally place themselves in a more favorable position for release when other offenders cannot." The June 2003 order, now on review, eliminated the reference to "equal protection" and stated, "to do otherwise would allow offenders under the discretionary system to place themselves in a more favorable position with regard to the board's rules than they would otherwise be by opting in and out of the matrix system."
The board's first rationale, based on equal protection, which we take to be a reference to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, does not support its position. As this court recently explained, "[a] classification that `neither burdens a fundamental right nor targets a suspect class' will satisfy the Equal Protections clause `so long as it bears a rational relation to some legitimate end.'" State v. Orueta, 343 Or. 118, 127, 164 P.3d 267 (2007) (quoting Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)). Here, the board's choice was to apply the rules in place either when petitioner opted into the matrix system temporarily in 1984 or permanently in 1988. Applying the latter set of rules neither burdens a fundamental right nor targets a suspect class, and the board rationally could have concluded that applying the rules in place when petitioner permanently opted into the matrix system in 1988 would result in the same treatment as other inmates coming into the matrix system on that date. The board's stated rationale that equal protection required it to apply the 1984 rules to petitioner is simply wrong.
The board's second rationale is equally weak. The board's stated concern is that applying the 1988 rules in petitioner's case would "allow offenders under the discretionary system to place themselves in a more favorable position" by opting in and out of the matrix system. That statement, however, necessarily raises the question: compared to whom would those inmates be in a more favorable position? Perhaps the board is comparing discretionary inmates who opt into the matrix system to inmates who have committed crimes after the adoption of the matrix system. In that case, however, the discretionary inmate, whether he or she has elected matrix treatment once or multiple times, inherently is in a "more favorable position" than a matrix offender. The discretionary inmate is permitted to choose the time of his or her election, whereas the matrix offender automatically is subject to the rules in effect when he or she committed the crime. A board rule that requires application of one set of rules versus another set (be they the rules in effect at the time of the first election or the rules in effect at the time of the most recent election) does nothing to minimize or eliminate that inequality.[15] If, on the other hand, the board is comparing inmates in petitioner's position to potential future discretionary inmates who opt into the matrix system more than once, then the board's reasoning fails for the same reason that the board's equal protection argument fails: It is entirely within the board's control to avoid any potential unfairness in the future, if and when the board is confronted with a parole release decision for another inmate who has opted into the matrix system more than once. The board has not shown that treating petitioner as subject to the 1988 rules rather than the 1984 rules actually or potentially would place him in a more favorable position with respect to any other inmate.[16]
*471 The overarching theme of the board's argument in support of its apparent change in policy is that the change was necessary to correct an error:
"The board, since 2001, has consistently explained why the correct standard to apply to petitioner's case is the 1984 standard. There is no inconsistency in its explanations. Indeed, if the board had not withdrawn the 2000 order for reconsideration, its decision would have been inconsistent with its `officially stated agency position,' in contravention of ORS 183.482(8)(b)(B). * * * Had the board applied the law in effect in 1988, when petitioner elected to proceed under the matrix the second time, it would have violated its policy and put petitioner in a more favorable position than other prisoners and committed the very violation that he claims it has. Therefore, the board was entitled to rectify its error on reconsideration."
In essence, the board is arguing that, because its second policy was inconsistent with its first, the board would violate the APA unless it vitiated the earlier orders applying the first policy. That is bootstrapping; it is not an adequate explanation for the change in policy. It is apparent from the orders that the board issued with respect to petitioner before May 29, 2001, in which it applied the rules in effect when petitioner made his 1988 election into the matrix system, that there was no "error" until the board announced the new, first-election-counts policy, in 2001. That new policy created rather than corrected any arguable error in the earlier orders.
We hold that the June 2003 order, reflecting the board's "policy" to use the rules in effect at the time of an inmate's first election, is inconsistent with a prior board practice and that the board has not offered a rational, fair, or principled explanation for the inconsistency. In that order, then, the board abused its discretion under ORS 183.482(8)(b)(B). The Court of Appeals erred in affirming the board's order. ORS 183.482(8)(b)(B) provides that, when an agency has failed to adequately explain its change in position, the reviewing "court shall remand the order to the agency." Pursuant to that statutory directive, we remand this case to the board to permit it to provide, if it can, a rational, fair, and principled explanation for departing from its practice of relying on petitioner's 1988 election.
The decision of the Court of Appeals is reversed. The order of the Board of Parole and Post-Prison Supervision is reversed, and the case is remanded to the Board of Parole and Post-Prison Supervision for further proceedings.
NOTES
[**] Linder, J., did not participate in the consideration or decision of this case.
[1] Since its enactment in 1977, ORS 144.120 has been amended multiple times, in ways that do not affect our analysis in this case. For ease of reference we refer to the present version of that statute.
[2] In 1977, when the matrix system was adopted, the statutes at issue in this case referred to a diagnosis of "severe emotional disturbance." ORS 144.120(4) (1977); ORS 144.125(3) (1977). In 1981, the legislature amended those statutes to refer to "severe emotional disturbance such as to constitute a danger to the health or safety of the community." Or. Laws 1981, ch. 426, §§ 1, 2. ORS 144.120(4) provides:
"Notwithstanding subsection (1) of this section [requiring the board to set an initial parole release date], in the case of a prisoner whose offense included particularly violent or otherwise dangerous criminal conduct or whose offense was preceded by two or more convictions for a Class A or Class B felony or whose record includes a psychiatric or psychological diagnosis of severe emotional disturbance such as to constitute a danger to the health or safety of the community, the board may choose not to set a parole date."
[3] ORS 144.245(1), making an inmate's right to release on his or her release date explicit, was enacted in 1985. Or. Law 1985, ch. 53, §§ 2, 3. Neither party has argued whether such a mandate would have applied in 1984, and we do not decide that issue.
[4] In the two orders continuing the matter, dated March 14, 1985, and April 24, 1985, the board used a form that recited petitioner's criminal history and risk scores, factors that the board considers in deciding an initial release date under the matrix.
[5] In that February 1999 order, the board provided the following statement in explanation of the applicable law governing its decision: "The board has considered this matter under the laws in effect at the time of the commitment offense(s)." That clearly was an erroneous statement, insofar as "the laws in effect at the time of the commitment offense" did not provide for matrix treatment at all.
[6] In discussing Weidner and Merrill in the text of this opinion, although Merrill is the precedential case, we refer and cite to Weidner rather than Merrill, because that is the case in which the Court of Appeals first announced its reasoning.
[7] The 1991 version of ORS 144.125(3) is identical to the version in effect in 1988 and, with one minor exception that does not affect our analysis, is also the same as that in effect in 1984.
[8] OAR 255-60-006 (1988) was in effect from May 19, 1988, when it was promulgated, thorough April 5, 1990, when it was amended.
[9] Petitioner argued that, although the board stated in that order that it was applying the Peek rule to his case and that it based its decision to defer his release date solely on the contents of the psychological evaluation, in actuality it also improperly considered other factors.
[10] After the board issued that June 2003 order, the Court of Appeals dismissed the habeas action as moot, on the ground that the effective order postponing petitioner's release date was no longer the one under review in that habeas action. Gordon v. Hill, 189 Or.App. 363, 76 P.3d 150 (2003), rev. den., 339 Or. 280, 120 P.3d 1224 (2004).
[11] ORS 144.335(1) provides:
"A person over whom the State Board of Parole and Post-Prison Supervision exercises its jurisdiction may seek judicial review of a final order of the board as provided in this section if:
"(a) The person is adversely affected or aggrieved by a final order of the board; and
"(b) The person has exhausted administrative review as provided by board rule."
[12] ORS 144.335(3) provides:
"The order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board's authority. The Court of Appeals may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8)."
[13] That policy also was expressed in an official statement the board issued on June 8, 2000, entitled "Board Policy for Offenders Sentenced under the Discretionary System who decide to have their case considered under the Matrix System":
"Effective immediately, all offenders sentenced under the discretionary system who opt to have their case considered under the matrix system will have the matrix rules in effect at the time of their decision applied to their case."
[14] The board also used that new policy in its May 29, 2001, order, although without announcing an official policy to do so.
[15] The board could have avoided the unequal effect of permitting discretionary inmates to select the timing of their elections by adopting a policy that would have subjected all discretionary offenders to the same rules no matter when they opted into the matrix system, or by requiring all discretionary inmates to elect within a certain period of time after the adoption of the matrix system or lose the right to elect, but the board apparently rejected those approaches.
[16] The board has argued that there may be other inmates in petitioner's position in the future, because, in 1985, the board repealed its rule prohibiting multiple elections. It is unclear from the record how other discretionary inmates would know about that change, however, in light of the fact that, as late as August 1988, when petitioner opted into the matrix system the second time, the form that such inmates were required to sign still contained the warning that multiple elections were not permitted.
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510 U.S. 865
Legacy, Ltd.v.Channel Home Centers, Inc. et al.
No. 93-114.
Supreme Court of United States.
October 4, 1993.
1
Appeal from the C. A. 3d Cir.
2
Certiorari denied. Reported below: 989 F. 2d 682.
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452 F.2d 1204
Theodore J. WALLY, Appellant,v.Curtis W. TARR, Director of Selective Service et al., Appellees.
No. 421, Docket 71-2097.
United States Court of Appeals,Second Circuit.
Argued Dec. 2, 1971.Decided Dec. 7, 1971.
Barry Satlow, New York Civil Liberties Union, New York City (Michael N. Pollet, New York City, on the brief), for appellant.
Christopher Roosevelt, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. New York, on the brief), for appellees.
Before LUMBARD, WATERMAN and FEINBERG, Circuit Judges.
PER CURIAM:
1
We affirm Judge Bonsal's order, in the District Court for the Southern District of New York, which denied Theodore J. Wally's motion for a preliminary injunction to restrain the Director of Selective Service and the Local Board from inducting him into the Army.
2
Wally argues that section 20 of the Selective Service Act of 1948, as amended, 50 U.S.C. App. Sec. 470, was reenacted in the 1971 Selective Service law of September 28, 1971. P.L. 92-129, 92d Cong., 1st Sess. Section 20 of the 1948 Act provided that "no person shall be inducted or ordered into active service without his consent . . . within ninety days after the date of its enactment," unless a national emergency is declared. Thus Wally argues any induction prior to December 28, 1971 would be void. We find no merit to this contention.
3
For the reasons indicated by the First Circuit in Doyle v. Massachusetts Local Board No. 72, 451 F.2d 1002, decided November 17, 1971, it is altogether clear that the 1971 statute merely amended the laws relating to selective service; it did not in any way refer to section 20. There is no support for the claim that, by making amendments in 1971, Congress meant to reenact and reactivate the 90-day provision of section 20. As the First Circuit pointed out, had Congress wished to impose such a moratorium on induction, it surely would have done so in explicit terms. Accord Judge Whelan's opinion in Kumley v. California Local Board No. 82, (C.D.Cal.) also decided November 17, 1971, and Avery v. Mills (N.D.Ill.), decided November 22, 1971.
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33 So.3d 41 (2010)
GODWIN
v.
STATE.
No. 2D10-301.
District Court of Appeal of Florida, Second District.
February 9, 2010.
Decision Without Published Opinion All Writs Juris.denied.
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80 U.S. 158
20 L.Ed. 490
13 Wall. 158
SEMMESv.HARTFORD INSURANCE COMPANY.
December Term, 1871
IN error to the Circuit Court for the District of Connecticut.
Semmes sued the City Fire Insurance Company, of Hartford, in the court below, on the 31st of October, 1866, upon a policy of insurance, for a loss which occurred on the 5th day of January, 1860. The policy as declared on showed as a condition of the contract, that payment of losses should be made in sixty days after the loss should have been ascertained and proved.
The company pleaded that by the policy itself it was expressly provided that no suit for the recovery of any claim upon the same should be sustainable in any court unless such suit should be commenced within the term of twelve months next after any loss or damage should occur; and that in case any such suit should be commenced after the expiration of twelve months next after such loss or damage should have occurred, the lapse of time should be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced. And that the plaintiff did not commence this action against the defendants within the said period of twelve months next after the loss occurred.
To this plea there were replications setting up, among other things, that the late civil war prevented the bringing of the suit within the twelve months provided in the condition, the plaintiff being a resident and citizen of the State of Mississippi and the defendant of Connecticut during all that time.
The plea was held by the court below to present a good bar to the action, notwithstanding the effect of the war on the rights of the parties.
That court, in arriving at this conclusion, held, first, that the condition in the contract, limiting the time within which suit could be brought, was, like the statute of limitation, susceptible of such enlargement, in point of time, as was necessary to accommodate itself to the precise number of days during which the plaintiff was prevented from bringing suit by the existence of the war. And ascertaining this by a reference to certain public acts of the political departments of the government, to which it referred, found that there was, between the time at which it fixed the commencement of the war and the date of the plaintiff's loss, a certain number of days, which, added to the time between the close of the war and the commencement of the action, amounted to more than the twelve months allowed by the condition of the contract.
Judgment being given accordingly in favor of the company the plaintiff brought the case here.
The point chiefly discussed here was when the war began and when it ceased; Mr. W. Hamersley, for the plaintiff in error, contending that the court below had not fixed right dates, but had fixed the commencement of the war too late and its close too early, and he himself fixing them in such a manner as that even conceding the principle asserted by the court to be a true one, and applicable to a contract as well as to a statute of limitation, the suit was still brought within the twelve months.
The counsel, however, denied that the principle did apply to a contract, but contended that the whole condition had been rendered impossible and so abrogated by the war, and that the plaintiff could sue at any time within the general statutory term, as he now confessedly did.
Mr. R. D. Hubbard, contra.
Mr. Justice MILLER delivered the opinion of the court.
1
It is not necessary, in the view which we take of the matter, to inquire whether the Circuit Court was correct in the principle by which it fixed the date, either of the commencement or cessation of the disability to sue growing out of the events of the war. For we are of opinion that the period of twelve months which the contract allowed the plaintiff for bringing his suit does not open and expand itself so as to receive within it three or four years of legal disability created by the war and then close together at each end of that period so as to complete itself, as though the war had never occurred.
2
It is true that, in regard to the limitation imposed by statute, this court has held that the time may be so computed, but there the law imposes the limitation and the law imposes the disability. It is nothing, therefore, but a necessary legal logic that the one period should be taken from the other. If the law did not, by a necessary implication, take this time out of that prescribed by the statute, one of two things would happen: either the plaintiff would lose his right of suit by a judicial construction of law which deprived him of the right to sue yet permitted the statute to run until it became a complete bar, or else, holding the statute under the circumstances to be no bar, the defendant would be left, after the war was over, without the protection of any limitation whatever. It was therefore necessary to adopt the time provided by the statute as limiting the right to sue, and deduct from that time the period of disability.
3
Such is not the case as regards this contract. The defendant has made its own special and hard provision on that subject. It is not said, as in a statute, that a plaintiff shall have twelve months from the time his cause of action accrued to commence suit, but twelve months from the time of loss; yet by another condition the loss is not payable until sixty days after it shall have been ascertained and proved. The condition is that no suit or action shall be sustainable unless commenced within the time of twelve months next after the loss shall occur, and in case such action shall be commenced after the expiration of twelve months next after such loss, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim. Now, this contract relates to the twelve months next succeeding the occurrence of the loss, and the court has no right, as in the case of a statute, to construe it into a number of days equal to twelve months, to be made up of the days in a period of five years in which the plaintiff could lawfully have commenced his suit. So also if the plaintiff shows any reason which in law rebuts the presumption, which, on the failure to sue within twelve months, is, by the contract, made conclusive against the validity of the claim, that presumption is not revived again by the contract. It would seem that when once rebutted fully nothing but a presumption of law or presumption of fact could again revive it. There is nothing in the contract which does it, and we know of no such presumptions of law. Nor does the same evil consequence follow from removing absolutely the bar of the contract that would from removing absolutely the bar of the statute, for when the bar of the contract is removed there still remains the bar of the statute, and though the plaintiff may show by his disability to sue a sufficient answer to the twelve months provided by the contract, he must still bring his suit within the reasonable time fixed by the legislative authority, that is, by the statute of limitations.
4
We have no doubt that the disability to sue imposed on the plaintiff by the war relieves him from the consequences of failing to bring suit within twelve months after the loss, because it rendered a compliance with that condition impossible and removes the presumption which that contract says shall be conclusive against the validity of the plaintiff's claim. That part of the contract, therefore, presents no bar to the plaintiff's right to recover.
5
As the Circuit Court founded its judgment on the proposition that it did, that judgment must be
6
REVERSED AND THE CASE REMANDED FOR A NEW TRIAL.
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IMPACT FINANCIAL SERVICES, Plaintiff-Appellee,
v.
KAM'AINA TERMITE & PEST CONTROL, INC., Defendant-Apellant
No. 27887
Intermediate Court of Appeals of Hawaii.
September 29, 2008.
On the briefs: Michael G.M. Ostendorp for Defendant-Appellant.
Robert E. Chapman Peter V. Lee Mary Martin (Clay Chapman Crumpton Iwamura & Pulice) for Plaintiff-Appellee.
MEMORANDUM OPINION
(By: Nakamura, Presiding Judge, Fujise and Leonard, J
In this debt collection matter, Defendant-Appellant Kama'aina Termite and Pest Control, Inc. (Kama'aina) appeals from two post-judgment orders, the Order Denying Defendant's Motion to Set Aside Default Judgment and Motion to Stay Garnishee Summons, filed on March 13, 2006 (Order Denying Set Aside), and the Order Denying Defendant's Motion to Reinstate the Motion to Set Aside Default Judgment, filed on April 26, 2006 (Order Denying Reinstatement), in favor of Plaintiff-Appellee Impact Financial Services (Impact), by the District Court of the First Circuit (District Court).[1] On appeal, Kama'aina attacks the validity of a default judgment on the ground that the process server improperly served process upon a Kama'aina office assistant, who Kama'aina asserts did not have authority to accept process. Kama'aina also argues that its Motion to Reinstate a second Motion to Set Aside Default Judgment (Motion to Reinstate)) should have been granted because the District Court should have separately considered the arguments raised in both of its motions to set aside the default judgment. Based on the relevant case law, statutes, rules of civil procedure, and the record in this case, we conclude that service on Kama'aina's was not improper. We also conclude that District Court's entry of the Order Denying Reinstatement was not an abuse of discretion.
I. RELEVANT FACTS
On November 21, 2005, Impact filed a Complaint against Kama'aina to recover the outstanding debt in the principal amount of $18,865.24. Hamilton C. Pieper (Pieper), a Deputy Sheriff, attempted service on November 29, 2005 at 10:45 a.m. on Kama'aina at its business address, 940-B Queen Street, Honolulu, Hawaii 96814. Pieper stated in a later declaration that "a woman who seemed to be in charge, told me to come back later and to serve Michael Miske." Pieper returned the next day. On the Return of Service, Pieper indicated that he served Kama'aina under special circumstances:
On 11/30/05 at 3:00pm, I served an adult female who appeared to be in charge. She was extremely evasive and refused to give me any information. I asked to speak to the manager, ofc. manager or any supervisor in charge and she refused. She did admit that her [sic] and a staff of 5 employees that were present worked for Kama'aina Termite. In addition, she had the largest and most prominent office there and conducted herself as the individual in charge of operations.
In Pieper's declaration, he stated that the woman he served was same woman he spoke to the day before. None of the employees would direct him to someone who would willingly accept service, the woman he served took charge of the situation both times Pieper attempted service, and this same woman refused to reveal her name after he served her the Complaint.
The person at Kama'aina who received the Complaint and Summons was later identified as Andrea Kaneakua (Kaneakua). Kaneakua signed a declaration on February 10, 2006, describing that a man entered her office and asked for "Mike." In her declaration, Kaneakua stated the following:
Pursuant to District Court Rules of Civil Procedure, Rule 4, a corporation must be served by delivering a copy of the Complaint and Summons to an officer, a managing or general agent or to any other agent authorized to receive service.
I saw a man open the door to my office and he asked me if I knew where Mike was. I informed him that I did not know which Mike he was referring to and the one Mike that I knew was not here. He stated that he wanted to serve some papers on Mike and that he was going to leave the papers with me. I told him that I was not authorized to accept service of any papers.
I asked him for a business card and his name but he refused to provide either. He insisted that I sign for the papers that he wanted to serve; once again I told him that I'm just an assistant and that none of us here is authorized to receive service. He then just threw the papers on my desk, and stated that "I'm just going to tell the judge that I left the papers with you" and turned around and left. Afterwards, I continued with my work and I don't know what happened to the papers that he had left. I am an Office Assistant, and I am not an officer, a managing or general agent or any other agent authorized to receive service.
Attached hereto as Exhibit "A" is a true and correct copy of the Hawaii DCCA Business Name Search results for Kama'aina Termite and Pest Control, Inc. and it shows Maydeen Stancil as the agent, president, vice president, secretary, treasurer and director. It does not show any "Mike".
In Kaneakua's declaration, she made no mention of referring Pieper to a Michael Miske (Miske) the day before nor did she mention anything about a previous attempt by Pieper to serve process.
One week after Kaneakua's declaration was submitted to the District Court, Miske filed a declaration in which he identified himself as the Chief Executive Officer of Kama'aina, identified Maydeen Stancil as the registered agent for Kama'aina, and stated: "The day that the process server attempted to serve the Complaint in this matter no officer, managing or general agent, or any other agent authorized to receive service of process was on the premises." Miske further stated:
4. I was not on the premises when the process server left the Complaint with the person not authorized to receive service.
5. I have spoken to all persons who would be authorized to receive service and none of them were present or were served with a copy of the Complaint and Summons.
6. Therefore, the Court has no personal jurisdiction and the Judgment is void.
Kama'aina did not file an answer or appear at the return date, and the District Court entered' a default on
December 12, 2005., On January 3, 2006, the clerk of the District Court entered a Default Judgment in favor of Impact and against Kama'aina for the total judgment amount of $22,263.04, which included the principal amount of $18,865.24, interest, attorney's fees, court costs, sheriff's fees, sheriff's mileage, and other costs. On January 31, 2006, the District Court entered four orders authorizing Impact to issue garnishee summonses upon American Savings Bank, Bank of Hawaii, Central Pacific Bank, and First Hawaiian Bank.
On February 10, 2006, Kama'aina filed a Motion to Set Aside Default Judgment, pursuant to District Court Rules of Civil Procedure (DCRCP) Rules 55(c) and 60(b) (First Motion to Set Aside). The First Motion to Set Aside relied entirely on the above-referenced declaration of Kaneakua and made no other argument. This motion was set for hearing on March 6, 2006.
On February 21, 2006, Kama'aina filed two motions, a Motion to Stay Garnishee Summons (Motion to Stay) and a second Motion to Set Aside Default, (Second Motion to Set Aside), along with two ex parte motions to shorten time for hearing. The Second Motion to set aside referred to DCRCP 60(b)(4), relied entirely on the above-referenced declaration of Miske, and made no other argument. Both of the February 21, 2006 motions were set for hearing on February 27, 2006.
At the hearing on February 27, 2006, the District Court noted that the Second Motion to Set Aside Default, which was then before the Court, was "based on the fact that you're claiming that an unauthorized person received the complaint." Counsel nevertheless attempted to present an "offer of proof" and argued, inter alia, that if the case went to trial, Miske (who was present at the hearing) would testify regarding the dispute obligation and that Kama'aina had meritorious defenses to the underlying dispute, as well as to the assignment to Impact. The District Court denied the Second Motion to Set Aside Default. The District Court also denied the Motion to Stay. On March 13, 2006, the District Court entered a written order that denied both the Second Motion to Set Aside and the Motion to Stay.
The First Motion to Set Aside was apparently then taken off of the District Court's March 6, 2006 calendar, without a hearing or further order. On March 16, 2006, Kama'aina filed the Motion to Reinstate. On the same day, Kama'aina filed a Supplemental Memorandum, in support of the First Motion to Set Aside, presenting for the first time, Kama'aina's defenses to the merits of Impact's claim.
On April 3, 2006, the District Court heard Kama'aina's Motion to Reinstate. The District Court informed Kama'aina that it viewed the Motion to Reinstate as "essentially a motion for reconsideration" of the District Court's earlier ruling on February 27, 2006 and explained to Kama'aina's counsel, "you don't get to file five different motions under five different subsections of the same rule asking for the same relief[.] The District Court stated that Kama'aina "had the opportunity to raise all these arguments" at the February 27, 2006 hearing and orally denied the Motion to Reinstate.
On April 10, 2006, Kama'aina filed a Notice of Appeal from the Order Denying Set Aside. On April 26, 2006, the District Court entered the Order Denying Reinstatement. On May 26, 2006, Kama'aina filed a second Notice of Appeal from the Order Denying Reinstatement.
II. POINTS OF ERROR RAISED ON APPEAL
Kama'aina seeks appellate review based on two alleged points of error:
1. The District Court abused its discretion when it failed to set aside the Default Judgment for improper service; and
2. The District Court abused its discretion in denying the Motion to Reinstate, without first hearing the merits of Kama'aina's defense.
III. STANDARDS OF REVIEW
A trial court's ruling on a motion to set aside default judgment based on Hawai`i Rules of Civil Procedure (HRCP) Rule 60(b)[2] is reviewed for an abuse of discretion. Citicorp Mortgage, Inc. v. Bartolome, 94 Hawaii 422, 428, 16 P.3d 827, 833 (App. 2000) (citation omitted); see HRCP Rule 55(c). A trial court abuses its discretion when it has "clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Ass'n of Home Owners of Kai Nui Court ex rel. Bd. of Directors v. City and County of Honolulu, 118 Hawaii 119, 121, 185 P.3d 867, 869 (App. 2008) (citation and internal quotation marks omitted).
The Hawai`i Supreme Court has held that "defaults and default judgments are not favored and that any doubt should be resolved in favor of the party seeking relief, so that, in the interests of justice, there can be a full trial on-the merits." Rearden Family Trust v. Wisenbaker, 101 Hawai`i 237, 254, 65 P.3d 1029, 1046 (2003) (citations and internal quotation marks omitted).
Hawai`i courts follow the test promulgated in BDM, Inc. v. Sageco. Inc., 57 Haw. 73, 77, 549 P.2d 1147, 1150 (1976) to determine whether to set aside a default judgment:
a motion to set aside a default entry or a default judgment may and should be granted whenever the court finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a wilful act.
Citicorp Mortgage, Inc., 94 Hawai`i at 438, 16 P.3d at 843. Therefore, if a movant fails to meet any one prong of the test, a trial court does not abuse its discretion in refusing to set aside a default `judgment. Id. at 439, 16 P.3d at 844. Before applying the BDM, Inc. test, however, it must first be decided that the entry of default judgment was not the result of an abuse of discretion. Long v. Long, 101 Hawai`i 400, 407, 69 P.3d 528, 535 (App. 2003). "Otherwise, a court could impose the BDM, Inc. burden upon the defendant simply by abusing its discretion and entering a default against the defendant." Id.
However, with respect to a motion under HRCP Rule 60(b)(4),[3] alleging that a judgment is void, the determination of whether a judgment is void is not a discretionary issue. It has been noted that a judgment is void only if the court that rendered it lacked jurisdiction of either the subject matter or the parties or otherwise acted in a manner inconsistent with due process of law.
Citicorp Mortgage, Inc., 94 Hawai`i at 428, 16 P.3d at 833 (citations, brackets, and internal quotation marks omitted). Therefore, "in the sound interest of finality, the concept of void judgment must be narrowly restricted." Id.
The Order Denying Reinstatement will be reviewed under the same standard that we would apply to review an order on a motion for reconsideration, which is for an abuse of discretion. See Ass'n of Home Owners of Kai Nui Court, 118 Hawai`i at 121, 185 P.3d at 869.
IV. DISCUSSION
A. The Order Denying Set Aside
In the Second Motion for Set Aside, Kama'aina argued exclusively that the default judgment was void pursuant to DCRCP Rule 60(b)(4) because of Impact's alleged failure to effectuate proper service of process as required under DCRCP Rule 4(d)(3) and Hawaii Revised Statutes (HRS) § 414-64 (a) (2004).[4] Kama'aina did not submit any affidavits or other evidence of a meritorious defense.[5] We must consider the District Court's exercise of its discretion in light of the record before the court.
DCRCP Rule 4(d)(3) provides that a summons and complaint shall be served together upon a domestic corporation:
by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
When the defendant belongs to a class referred to in DCRCP Rule (4) (d) (1) or (3), e.g. a domestic corporation, "it is also sufficient if the summons and complaint are served in the manner prescribed by any statute." DCRCP Rule 4(d)(8) (emphasis added). Service of process upon a corporation is governed by HRS § 414-64, which provides:
(a) Service of any notice or process authorized by law issued against any corporation, whether domestic or foreign, by any court, judicial or administrative officer, or board, may be made in the manner provided by law upon any registered agent, officer, or director of the corporation who is found within the jurisdiction of the court, officer, or board; or if any registered agent, officer, or director cannot be found, upon the manager or superintendent of the corporation or any person who is found in charge of the property, business, or office of the corporation within the jurisdiction.
(b) If no officer, director, manager, superintendent, or other person in charge of the property, business, or office of the corporation can be found within the State, and in case the corporation has not filed with the [director of commerce and consumer affairs] pursuant to this chapter, the name of a registered agent upon whom legal notice and process from the courts of the State may be served, and likewise if the person named is not found within the State, service may be made upon the corporation by registered or certified mail, return receipt requested, addressed to the corporation at its principal office. Service using registered or certified mail is perfected at the earliest of.
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by postmark, if mailed postpaid and correctly addressed.
(c) Nothing contained herein shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a corporation in any other manner permitted by law.
(Emphasis added.)
Kama'aina argues that Impact did not comply with DCRCP Rule 4(d)(3) because it did not serve process on an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. Kama'aina further argues, on appeal, that the service in this case failed to satisfy HRS § 414-64(a) because Kaneakua, an office assistant for Kama'aina, was not a person in charge of the property, business, or office of the corporation. Appellate courts take a dim view of arguments raised for the first time on appeal, particularly when used to argue that the lower court abused its discretion. See HRAP Rule 28(b)(4) (iii) (noting that an appellant's opening brief shall state "where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court agency"); see also Hawaii Ventures LLC v. Otaka, Inc. 114 Hawai`i 438, 500, 164 P.3d 696, 758 (2007) (citation omitted); HRS § 641-2 (Supp. 2006) ("The appellate court . . need not consider a point that was not presented in the trial court in an appropriate manner.").
In this case, Pieper's Return of Service serves as prima facie evidence of the events which occurred at the time of service:
The [return of service] . . . shall be prima facie evidence of all it contains, and no further proof thereof shall be required unless either party desires to examine the officer or person making service, in which case the officer or person shall be notified to appear for examination.
HRS § 634-22; Tropic Builders, Ltd. v. Naval Ammunition Depot Lualualei Quarters, Inc., 48 Haw. 306, 313, 402 P.2d 440, 445 (1965). However, the Return of Service may be challenged, as was done in this case. See Tropic Builders, Ltd., 48 Haw. at 313, 402 P.2d at 445.
As discussed above, Pieper served an "adult female who appeared to be in charge." He observed Kaneakua to have "the largest and most prominent office" and "conducted herself as the individual in charge of operations" on both days that he visited Kama'aina's place of business. Pieper's statements to this effect, in the return of service and his later declaration, are uncontroverted. Neither Kaneakua nor Miske denied that Kaneakua was in fact the person found to be in charge of Kama'aina's property, business, or office at the time of service. Indeed, both of their declarations focused exclusively on Kaneakua's lack of a titled position or express "authority" to accept service on Kama'aina's behalf.
We reject the rigid formulism that Kama'aina would have us apply to service of process in this case. It is clear to this court that, under HRS § 414-64, a corporation that is open for business, with employees present and apparently conducting business at the corporation's place of business, cannot avoid service by simply declaring that no one is available to accept service, refusing to identify who is in charge, and providing no further information to the process server. On the contrary, HRS § 414-64 provides that service can be made upon "any person who is found in charge of the property, business, or office of the corporation within the jurisdiction."
This view is consistent with decisions in other jurisdictions that have considered similar service issues. See e.g., Sellens v. Telephone Credit Union, 189 F.R.D. 461, 465 (D. Kan. 1999) (recognizing proper service of process where person served was apparently in charge of office); Gibble v. Car-lene Research, Inc. 67 Cal. App. 4th 295, 313, 78 Cal. Rptr. 2d 892, 903 (Cal. Ct. App. 1998) (recognizing service of process on person who was ostensibly, even if not actually, a corporate officer as sufficient); Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc., 928 So. 2d 856, 866 (Miss. 2006) (holding that decisive factor in determining whether an individual is "in charge of the place of business" is whether there is a sufficient connection between the person served and the defendant to demonstrate that service was reasonably calculated to give the defendant notice of the action against it); Nature's First Inc. v. Nature's First Law, Inc., 436 F. Supp. 2d 368, 374 (D. Conn. 2006). With regard to FRCP Rule 4(h), the Nature's First Inc. court stated:
The primary purpose of the federal process rule is to provide the defendant with notice that an action has been filed against it. Service therefore should be made upon a representative so integrated with the organization that he will know what to do with the papers. Generally, service is sufficient when made upon an individual who stands in such a position as to render it fair, reasonable and just to imply the authority on his part to receive service.
Id. (citation omitted; emphasis added). The Nature's First Inc. case also cited Insurance Company of North America v. S/S Hellenic Challenger, 88 F.R.D. 545, 548 (S.D.N.Y. 1980), where the court held that although the person served was not authorized to receive service and had also misplaced and lost the summons and complaint, like Kaneakua in the instant case,[6] service had been properly effected since the person served was a "representative of defendant well-integrated into the organization and quite familiar with the formalities associated with the receipt of service of summonses and complaints." Id. (internal quotation marks omitted).
In sum, we conclude that service on Kama'aina through Kaneakua was fair and reasonably calculated to give Kama'aina notice of the action filed against thus comporting with due process, as well as complying with HRS § 414-64(a). The District Court did not abuse its discretion when it denied the Second' Motion to Set Aside based on the allegedly improper service of process.[7]
B. The Motion to Reinstate
Kama'aina argues that the District Court abused its discretion when it denied the Motion to Reinstate because the First Motion to Set Aside, which was the subject of the Motion to Reinstate, cited DCRCP 55(c) and 60(b), but the Second Motion to Set Aside cited DCRCP 60(b) (4). This argument is without merit. When it was filed, the First Motion to Set Aside was supported only by, the declaration of Kaneakua, which was clearly offered to support the argument of improper servicethe same argument as set forth in the Second Motion to Set Aside. It was not until after the District Court denied the Second Motion to Set Aside (which was heard on shortened time at Kama'aina's request), and after the date initially set for hearing on the First Motion to Set Aside (which hearing had already been taken off the calendar after the court's ruling on the Second Motion to Set Aside), that Kama'aina filed a "Supplemental Memorandum" in support of the First Motion to Set Aside, which memorandum argued for the first time that Kama'aina had a meritorious defense to Impact Financial's claim.
The District Court did not abuse its discretion when it considered the Motion to Reinstate, filed concurrently with the Supplemental Memorandum, as a motion for reconsideration of its prior ruling on the issue of setting aside the default. It is well established that the "purpose of a motion for reconsideration is to allow the parties to present new evidence and/or arguments that could not have been presented during the earlier adjudicated motion." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 27 (1992) (citations omitted). There is nothing in the record to suggest that the evidence and arguments presented in the Supplemental Memorandum could not have been presented in the Second Motion to Set Aside. Indeed, it was already Kama'aina's second motion to set aside the default judgment. Moreover, Kama'aina has failed to provide any authority supporting the serial filing of motions under different subsections of DCRCP 60(b). While it is preferable for litigated disputes to be resolved on the "merits" of the parties' respective positions, courts cannot be expected to allow parties to re-argue their cases based on evidence and arguments that could have been, but which were not, presented in the first instance.
V. CONCLUSION
For these reasons, the District Court's Order Denying Set Aside, filed on March 13, 2006, and the District Court's Order Denying Reinstatement, filed on April 26, 2006, are affirmed.
NOTES
[1] The Honorable Faye M. Koyanagi decided the Order Denying Set Aside and the Honorable Hilary Benson Gangnes decided the Order Denying Reinstatement.
[2] DCRCP Rule 60(b) is identical to HRCP Rule 60(b). Thus, a ruling on a motion made pursuant to DCRCP Rule 60 is subject to the same standard of review as on a ruling made under HRCP Rule 60. See Casumpanq v. ILWU, Local 142; 94 Hawaii 330, 337, 13 P.3d 1235, 1242 (2000) (applying same standard of review to application of HRCP 12(b)(1) and DCRCP 12(b)(1) because the two rules are substantially identical).
[3] In relevant part, DCRCP Rule 60(b) provides several grounds for relief from a judgment or order:
RULE 60. RELIEF FROM JUDGMENT OR ORDER.
. . . .
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
(Emphasis added.)
[4] In order for a trial court to exercise personal jurisdiction over a defendant, the defendant must be served with a copy of the summons, and the complaint pursuant to HRCP Rule 4(d). Citicorp Mortgage, Inc., 94 Hawaii at 430, 16 P.3d at 835. A judgment binding on the defendant "may not be rendered in an action classified as in personam without some form of personal service sufficient to satisfy the requirements of due process of law." Romero v. Star Markets, Ltd., 82 Hawaii 405, 412, 922 P.2d 1018, 1025 (1996) (citation omitted). The general rule in Hawai'i is that due process requires notice reasonably calculated to apprise the defendant of the action and thus afford the defendant an opportunity to defend. Citicorp Mortgage, Inc., 94 Hawai`i at 432, 16 P.3d at 837.
[5] At the hearing on the Second Motion to Set Aside, which was expedited at Kama'aina's request, Kama'aina argued that it could provide evidence to support a defense on the merits, but clearly had not done so at that time.
[6] In her declaration, Kaneakua made averments regarding the District Court's service rule, as well as regarding Kama'aina's agent per its DCCA registration, apparently indicating her familiarity with these matters. The fact that Kaneakua informed the process server that "none of us is authorized to accept service," referring to all of the Kama'aina employees present at the time of service, coupled with her reported evasiveness and refusal to cooperate with the process server could be viewed not only as further confirmation of her knowledge of service-related issues and Kama'aina's management, but possibly even an attempt to thwart or delay service.
[7] In conjunction with its argument regarding the Order Denying Set Aside, Kama'aina argues that the District Court erred in failing to stay the garnishment orders because it was not given prior notice and an opportunity to be heard. This argument is waived because Kama'aina failed to identify it as a point on appeal. See HRAP Rule 28(b)(4). In addition, this argument is meritless. Kama'aina moved for an expedited hearing on both the garnishment issue and the set aside issues presented in its Second Motion to Set Aside. The District Court considered and denied its request to set aside the default judgment, prior to denying the request to stay its execution. Kama'aina had no "due process" right to be further heard on arguments not presented in its written motions prior to Impact's execution on the judgment.
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342 P.2d 664 (1959)
Jess A. SCOTT and Freda B. Scott, Plaintiffs in Error,
v.
Edward J. POWERS, Defendant in Error.
No. 18595.
Supreme Court of Colorado, En Banc.
July 13, 1959.
Rehearing Denied August 3, 1959.
*665 Chester A. Bennett, Fort Collins, for plaintiff in error.
Ralph H. Coyte, Alden T. Hill, Fort Collins, for defendant in error.
KNAUSS, Chief Justice.
We will herein refer to the parties, plaintiffs or defendant, as they were aligned in the trial court, or by name.
Plaintiffs' complaint alleged that they purchased from Floyd E. Harris on August 30, 1937 a portion of the southeast quarter of the southeast quarter of Section 35, Twp. 8 N., R. 69 West of the 6th p. m. in Larimer County, Colorado; that at the time of purchase "there was an established and used access right-of-way of State Highway 287 along and just south of the north line of said described land." That on February 17, 1938 plaintiffs sold to Arthur Collamer and Frank E. Collamer a portion of said above described land by warranty deed which deed recited "subject, however, to the rights-of-way for roads and ditches as now constructed; it being the intention hereof to exclude the county road from this conveyance." It is then alleged that defendant had refused to allow plaintiffs access to the lands owned by them. Powers acquired title to his land from one Stern, who acquired title through Collamer. Plaintiffs' deed contained the identical "subject" clause above quoted.
Plaintiffs prayed that the court adjudge that they owned a right-of-way over and through said tract of land and that defendant be enjoined from denying plaintiffs access to their property across defendant's land.
By answer defendant denied that any such access road ever existed. By way of cross-complaint defendant prayed for a decree quieting title in defendant as against "any claimed right-of-way through defendant's property." The allegations of the cross-complaint were put in issue by plaintiffs and the case proceeded to trial resulting in findings and judgment in favor of defendant and that "plaintiffs have no right-of-way over and across" the property first above described. From this judgment plaintiffs bring the case here on writ of error.
To tersely state the issue here involved plaintiffs claim that an easement was reserved in their favor through the property now owned by defendant. It cannot be said that they had an easement in the property at the time it was sold to defendant's predecessors in title. The record discloses that the east border line of the property conveyed to plaintiffs abutted the county road. There is no testimony in the record that any road was ever "constructed" from the main highway. It is logical to inquire, *666 in view of the language employed, "as constructed", where was the road which plaintiffs claim either by way of an easement or by adverse possession? It did not exist.
"A continued and uninterrupted use under an adverse use and claim of right is requisite to the acquisition of an easement by prescription. Since a person cannot claim adversely to himself, the courts uniformly maintain that the prescriptive period does not begin to run while the dominant and servient tracts are under the same ownership or control. If this should occur after the prescriptive period has begun to run, there is an interruption of the continuity of the adverse user; and if the ownership of the tracts is again severed, the prescriptive period starts anew. Thus, during the time real estate is owned and held by the owner as a single estate no easement by prescription is created against a portion thereof as a servient estate and in favor of another portion as a dominant estate by reason of the fact that the owner uses a particular part of his land as a roadway for the benefit and convenience of himself, his family and his licensees." 17 A.J. 641, Sec. 69.
It is obvious that plaintiffs could not create an easement in their favor on their own property because any use to which they would put the property when they owned it would be as owner, and not otherwise.
It being clear that the language of the conveyance here relied upon did not vest any rights in the plaintiffs, it then becomes pertinent to inquire did the plaintiffs acquire a right-of-way by adverse use?
The instant case was commenced in August, 1957.
It cannot be contended by plaintiffs that they have right here by adverse use to a way through defendant's property. The property was sold in 1938 and if a right by adverse use would start to develop it would start at the time of conveyance. There was some testimony by Scott that he hauled machinery and produce in and out through defendant's property but no evidence that his going through the property was adverse to the owner. There is no evidence that he was through the property at all after 1955. Accordingly, it could not be said that he had acquired any right by adverse user.
The trial court found as a fact from competent evidence "that the public highway borders plaintiffs' property along the entire north side thereof," and that "if plaintiffs have traveled through defendant'sproperty, said use, if any, could be termed no more than permissive use."
It is patent that no adverse possession existed either in fact or in law.
The findings of fact being supported by competent evidence, and the conclusions of law resulting in the judgment being consonant with established principles of law the judgment is affirmed.
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186 Cal.App.2d 413 (1960)
EDWIN H. KRAUSE, Appellant,
v.
DANIEL APODACA, Respondent.
Civ. No. 24775.
California Court of Appeals. Second Dist., Div. Two.
Nov. 16, 1960.
Simon, McKinsey & Miller for Appellant.
Nathan Harris Snyder for Respondent.
ASHBURN, J.
Plaintiff appeals from the judgment based upon a jury verdict for defendant in an action brought by him as landlord against his tenant for damages for negligence causing a fire in the leased premises to plaintiff's damage in the stipulated sum of $4,851.02. Plaintiff claims insufficiency of the evidence and prejudicial errors of law.
In 1949 defendant became plaintiff's lessee of property known as 4737 Gage Avenue, in the city of Bell, and so continued until the time of the fire. Defendant at the time of lease was blind and has been so at all times since 1941. A painter by trade, he conducted upon the leased premises a retail and wholesale paint store wherein he continued through the sense of feeling to do varnishing, painting and similar work. In a storeroom in the back of the building was an electric hot plate which defendant used for heating and thinning varnish from time to time. On the day of the fire, November 22, 1958, he was doing some varnishing and used the hot plate to warm and thus thin the varnish. This continued until about five minutes before closing, at which time he had a can of varnish upon the hot plate warming it. He did not then realize how late it was. There were several people in the store and "children were all over." Defendant or his wife suggested closing and he began to do so. He testified that he locked the big sliding door, turned off two switches as he went by, one on the far east wall, then locked the double doors, flicked the switches on the machine as he passed by, threw switches off as he headed toward the front of the store, reached behind some cans and pulled switches there, went into the office and pulled three switches on a panel which was about eight feet behind a refrigerator. It does not appear that the can of *416 varnish was ever taken off the hot plate. At 5:45 to 6 p. m. the fire was discovered after defendant and his wife had left the premises.
Three witnesses testified at the trial, Officer Marian B. Tatum, Jr., of the Bell Police, Deputy Sheriff William E. Carlberg, and defendant Apodaca. The two officers arrived at the scene about 7:45 p. m. and began an investigation of the cause of the fire. Their qualifications as experts are not challenged.
Officer Tatum testified that he arrived at the opinion that the fire started in the storeroom where a quart can of lacquer was sitting on a hot plate; that it had become hot and boiled over, ignited and started the fire. He also said that he expressed this opinion on the next day to defendant who said he forgot to unplug the hot plate. This alleged admission defendant denied. The officer also said that he could find no shutoff switch on the hot plate; that it was plugged into a wall outlet on the left of the refrigerator, the same one in which the refrigerator was plugged; also that there was no switch near the outlet.
Deputy Sheriff Carlberg explained his investigation methods and said he determined that the origin of the fire was at or near the refrigerator; that a can of lacquer on a hot plate had boiled over and started a blaze. Also there was a cord from the refrigerator to the wall outlet and one from the hot plate. There was no off-switch on the cord and he could find none on the hot plate; that there was no apparent flaw in the wiring from outlet to hot plate; same was intact. His expressed opinion was that the can of lacquer on the hot plate in some way caused the fire. In the can was ash or residue that "smelled more particularly on the lacquer side rather than another type of paint."
Defendant denied none of this testimony except the alleged conversation with Officer Tatum to the effect that he forgot to unplug the plate, the assertion that the refrigerator was electric and, by implication, the statement that the hot plate had no off-switch on it. Defendant did not undertake to explain the cause of the fire in any way. He testified on direct that he was positive he turned off all the switches when he left. On cross-examination he said he did not know whether the lacquer ever was removed from the hot plate and it was possible it was not removed; also that it was not likely that he did not throw off all switches, but possible that he did not do so. Defendant also testified there was no way on the hot *417 plate itself to turn it off; that the way to cool it would be to throw the switch or unplug it, which statement implies that the plate was plugged into the wall and was also controlled by a switch at some undisclosed location.
We have concluded that the evidence is insufficient to support the verdict. There is no testimony as to the cause of the conflagration except that of the two experts, and no circumstantial proof except that which corroborates their opinions. The record suggests no reasonable explanation of the fire except that expressed by these experts. No question is raised as to their qualifications or their probity. Respondent merely argues that the trial judge was free to reject their testimony. Not so.
[1] Gomez v. Cecena, 15 Cal.2d 363, 366 [101 P.2d 477]: "While no universal and immutable formula can be prescribed for determining the weight to be accorded testimonial evidence, it has frequently been said that testimony which is not inherently improbable and is not impeached or contradicted by other evidence should be accepted as true by the trier of fact."
[2] Joseph v. Drew, 36 Cal.2d 575, 579 [225 P.2d 504]: "It is the general rule that 'the uncontradicted testimony of a witness to a particular fact may not be disregarded, but should be accepted as proof of the fact.' (10 Cal.Jur. 362, p. 1143; Estate of Warner, 167 Cal. 686, 690 [140 P. 583]; Hynes v. White, 47 Cal.App. 549, 552 [190 P. 836].)"
[3] Witkin on California Evidence, section 198, page 219: "It is sometimes said that the jury or trial court may reject the conclusion of an expert even though it is uncontradicted. [Citations.] This does not mean, however, that the uncontradicted and unimpeached opinion testimony of an expert may be arbitrarily disregarded; the rule in this respect is the same as that which applies to uncontradicted testimony of an ordinary witness." To the same effect see Wirz v. Wirz, 96 Cal.App.2d 171, 176 [214 P.2d 839, 15 A.L.R.2d 1129]; Estate of Kuttler, 160 Cal.App.2d 332, 337 [325 P.2d 624]; Teich v. General Mills, Inc., 170 Cal.App.2d 791, 800 [339 P.2d 627].
[4] The closest approach to overthrowing the opinions of the experts lies in the defendant's testimony that the way to cool the hot plate would be to throw the switch or unplug it, thus implying the existence of a switch at some unspecified place which would control the supply of current to the plate. The effect of the experts' testimony is to rule out any such switch and confine control of the plate to inserting or withdrawing *418 the plug from the wall socket. Of course, defendant's version must be accepted in aid of the verdict, but when this is done it fails to advance his cause for it leaves the record devoid of any reasonable explanation or suggestion of the cause of the blaze except the failure of defendant to throw all switches before he left, a thing he confessed to be possible. His blindness could have no exculpatory effect upon this oversight; he knew exactly what he was doing and how to do it. (Cf. 35 Cal.Jur.2d, 84, p. 593; 65 C.J.S., 142, p. 783; Prosser on Torts, 2d ed., p. 126.)
[5] Eramdjian v. Interstate Bakery Corp., 153 Cal.App.2d 590, 602 [315 P.2d 19]: "It is axiomatic that 'an inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork.' (18 Cal.Jur.2d 480.)"
[6] Reese v. Smith, 9 Cal.2d 324, 328 [70 P.2d 933]: " 'A judgment cannot be based on guesses or conjectures. (Puckhaber v. Southern Pac. Co., 132 Cal. 363 [64 P. 480].) And, also, "A finding of fact must be an inference drawn from evidence rather than on a mere speculation as to probabilities without evidence. A majority of chances never can suffice alone to establish a proposition of fact, since the slightest real evidence would outweigh all contrary probabilities." (23 Cor.Jur., 1750, p. 18.)' "
[7] Sweeney v. Metropolitan Life Insurance Co., 30 Cal.App.2d Supp. 767, 772 [92 P.2d 1043]: "An inference is a deduction which the reason of the jury makes from the facts proved. (Code Civ. Proc., 1958.) It is not a mere conjecture or an arbitrary dixit without reason and without factual support."
[8] What constitutes substantial evidence, as distinguished from mere possibility or speculation, is clarified in the following passage from Estate of Teed, 112 Cal.App.2d 638, 644 [247 P.2d 54]: "The sum total of the above definitions is that, if the word 'substantial' means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with 'any' evidence. It must be reasonable in nature, credible, and of solid value; it must actually be 'substantial' proof of the essentials which the law requires in a particular case."
[9] Fewel & Dawes, Inc. v. Pratt, 17 Cal.2d 85, 89 [109 P.2d 650]: "If, however, the evidence is so slight and tenuous that it does not create a real and substantial conflict the finding *419 may be set aside. (Ibid) 'There must be more than a conflict of words to constitute a conflict of evidence. The contrary evidence must be of a substantial character, such as reasonably supports the judgment. ...' "
[10] The mere inference, suggested by defendant's testimony, that there was a switch which controlled the plate and that it was thrown to "off" as he closed the shop, cannot prevail over the clear evidence that failure to disconnect the hot plate in some manner was the proximate cause of the conflagration.
[11] Leonard v. Watsonville Community Hospital, 47 Cal.2d 509, 515 [305 P.2d 36]: "It is settled that where the evidence raises an inference that a fact exists, and either party produces evidence of the nonexistence of the fact that is clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved, the nonexistence of the fact is established as a matter of law. (See Blank v. Coffin, 20 Cal.2d 457, 461 [126 P.2d 868].) In these circumstances the inference is dispelled as a matter of law, and, if the fact inferred is necessary to establish an essential element of the plaintiff's case, a nonsuit or directed verdict is proper." [12] Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 70 [77 P.2d 1059], also says that "an inference is dispelled as a matter of law when it is rebutted by clear, positive and uncontradicted evidence which is not open to doubt, even though such evidence is produced by the opposite side." A different rule applies to a presumption (see p. 517 of Leonard decision, supra), but we here deal with an inference.
[13] In Hicks v. Reis, 21 Cal.2d 654, 659 [134 P.2d 788], the court stated the general rule that: "Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted." [14] But it was further said, at page 660: "To these well settled rules there is a common sense limited exception which is aimed at preventing the trier of the facts from running away with the case. This limited exception is that the trier of the facts may not indulge in the inference when that inference is rebutted by clear, positive and uncontradicted evidence of such a nature that it is not subject to doubt in the minds of reasonable men. The trier of the facts may not believe impossibilities. When the rebutting testimony is of such a nature that the minds of reasonable men cannot differ on the subject, then the trier of the facts cannot, and should not be permitted to, indulge in the inference." *420
Tested by these criteria the record discloses no evidence or inferences of substantiality which have a tendency to overthrow plaintiff's proof and the judgment must be reversed.
Appellant complains of the court's refusal to instruct upon res ipsa loquitur, the giving of a "mere fact of accident" instruction, one declaring each party entitled to the presumption of due care at the outset of the trial (BAJI 135), and another upon the subject of assumption of risk. If there were apparent any probability of a substantial difference in the evidence upon a new trial we would be disposed to review each of those assignments, but we do not feel so obligated in this instance. These questions will not necessarily arise upon a new trial. (Code Civ. Proc., 53.) We rest upon the assumption that more mature thought on those subjects by court and counsel will obviate any future claims of error in those areas.
Judgment reversed.
Fox, P. J., and Kincaid, J. pro tem., [fn. *] concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council.
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223 Va. 713 (1982)
KATHY MARIE LANE
v.
COMMONWEALTH OF VIRGINIA
Record No. 810861.
Supreme Court of Virginia.
June 18, 1982.
Randolph D. Eley, Jr.; Gary C. Hancock (Gilmer, Sadler, Ingram, Sutherland & Hutton, on brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.
Present: All the Justices.
Defendant convicted of possession of methaqualone with intent to distribute; evidence required to establish constructive possession; expert opinion as to effect of methaqualone harmless error; Code | 19.2-54 does not exclude affidavit and warrant even though not available for inspection prior to trial; other issues.
Police with a search warrant searched a house owned by defendant. Present were the defendant, her infant, Ronald Boardwine (the child's father) and a teenage girl. The warrant was directed to and served on Boardwine who was the object of the officers' suspicions. When an officer approached the chair where defendant sat, she became nervous, and volunteered that "there was nothing behind the chair." The officer discovered bags containing a total of about 1,000 methaqualone pills with an estimated street value of $72,000. Confronted with this evidence, defendant denied any knowledge of the drugs and stated she had not stayed at her house during the preceding two weeks. The officers who had had the house under surveillance admitted they had not seen her there. In a Jury trial defendant was convicted of possession of methaqualone with intent to distribute. At trial defendant denied ownership of the drugs and knowledge of their presence. Boardwine also testified defendant was not aware of the drugs. On appeal, defendant argues that the evidence was insufficient to support the verdict, that the Trial Court erred in admitting certain evidence, and that the Court abused its discretion in failing to suspend or reduce the sentence.
1. Constructive possession of a controlled substance (methaqualone) may be shown by establishing that the drug was known to the defendant and subject to her dominion and control.
2. Knowledge of the presence and character of a controlled substance may be shown by evidence of the acts, statements or conduct of the defendant.
3. While mere proximity to contraband is insufficient to establish possession, and a defendant's occupation of the premises does not give rise to a presumption of possession, these factors can be considered with other evidence by the Jury in determining whether a defendant constructively possessed controlled drugs.
4. The evidence and its reasonable inference in the light most favorable to the Commonwealth is sufficient to sustain the Jury conviction of possession of methaqualone with intent to distribute.
5. While admission of expert testimony concerning the effects of methaqualone in the body was erroneous since irrelevant to the issue, the admission was harmless error as not inflammatory. L. H. Smith Commonwealth, 223 Va. 720, 292 S.E.2d 362 (1982), distinguished.
6. The qualification of an expert is within the sound discretion of the Trial Court. The expert's conclusion that the pills were clandestinely made followed directly from his analysis based on the chemical makeup of the pills and the markings on them.
7. The testimony by a police officer that a large quantity of packaged pocket knives, etc., was found in the house where the methaqualone was found was in response to questioning of the officer by the Commonwealth in response to issues raised by defendant's counsel. Any error in admitting this evidence was invited by the defendant.
8. Code | 19.2-54 deals with the admissibility of evidence seized in the search and is silent on the introduction of the affidavit for the search warrant at trial. Thus, although the warrant and affidavit were not available for inspection prior to trial, Code | 19.2-54 does not preclude their admission in evidence.
9. The suspension or reduction of a sentence are matters resting within the sound discretion of the Trial Court and the record does not indicate that this discretion was abused.
Appeal from a judgment of the Circuit Court of Pulaski County. Hon. Jack M. Matthews, judge designate presiding.
Affirmed.
RUSSELL
RUSSELL, J., concurring.
I agree that the judgment should be affirmed. However, I find no error in the trial court's admission of the toxicologist's testimony concerning the effect of the drug on the body, for the reasons stated in the dissent in L. H. Smith v. Commonwealth, 223 Va. 720, 292 S.E.2d 362 (1982), decided today.
THOMPSON, J., joins in concurring opinion.
STEPHENSON
STEPHENSON, J., delivered the opinion of the Court.
Tried by a jury, Kathy Marie Lane was convicted of possession of methaqualone with intent to distribute. Her punishment was fixed at 20 years in the penitentiary and a fine of $10,000. On appeal, Lane argues the evidence is insufficient as a matter of law to support the jury's verdict; that the trial court erred in admitting certain evidence; and that the trial court abused its discretion in failing to suspend or reduce Lane's sentence.
Lane owned and occupied a dwelling in the Town of Pulaski. On November 10, 1979, a number of police officers searched the house. Lane, her 19-month-old child, Ronald Boardwine (the father of the child), and a teenage girl were present. The search warrant was directed to and was served on Boardwine, who was the object of the officers' suspicions.
The defendant sat in a chair in the living room while the search was conducted. She did and said nothing until an officer approached the chair. The officer testified that, at that point, she became "fidgetive" and exclaimed that "there was nothing behind the chair."
Contrary to Lane's assertion, the officer discovered behind the chair a white plastic bag containing nine other bags, each of which contained approximately 1,000 methaqualone pills. The estimated "street value" of the pills was $72,000.
Confronted with this evidence, Lane denied any knowledge of the drugs and stated she had not stayed at her house during the two preceding weeks because it had been occupied by a couple from Florida. The officers, who had the house under periodic surveillance for two weeks, admitted they had never seen Lane. Testifying at trial, Lane denied ownership of the drugs and knowledge of their presence. Boardwine also testified Lane was not aware of the drugs.
Constructive possession may be shown by establishing that the methaqualone was known to Lane and subject to her dominion and control. Susan Eckhart Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981); Womack Commonwealth, 220 Va. 5, 7, 255 S.E.2d 351, 352 (1979). "Knowledge of the presence and character of the controlled substance may be shown by evidence of the acts, statements or conduct of the accused." Eckhart, 222 Va. at 450, 281 S.E.2d at 855. While mere proximity to contraband is insufficient to establish possession, id., and an accused's occupancy of the premises does not give rise to a presumption of possession, Code | 18.2-250.1, these factors are circumstances to be considered by the jury with other evidence in determining whether a defendant constructively possessed drugs. Gillis Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 770-71 (1974).
In the present case, Lane owned and occupied the premises. The large and valuable quantity of methaqualone was hidden directly behind the chair in which she was seated. She said and did nothing as the police officer searched in and around other furnishings in the living room, but, when he began to search in the area of the chair she occupied, she became nervous and volunteered the statement that there was nothing behind the chair. Clearly, these are the kinds of acts, statements, and conduct which tend to prove her knowledge of the presence and character of the contraband. Considering the evidence and all its reasonable inferences in the light most favorable to the Commonwealth, we cannot say it is insufficient as a matter of law to sustain the jury's verdict.
We now direct our attention to the evidentiary issues. While Lane has assigned error to a number of the trial court's rulings, we consider only those to which proper objection was made at trial. Rule 5:21.
Richard J. McGarry, a toxicologist, testified regarding the six schedules of controlled drugs and the general nature and characteristics of each schedule. Thereafter, in response to the Commonwealth's question, "Can it [methaqualone] be dangerous to the human body?", McGarry replied: "Methaqualone was placed in the Schedule II category because it can be a dangerous drug when taken in overdose amounts; in toxicology throughout the country quite a number of deaths from methaqualone have occurred from the drug." When asked, "what is the normal effect of methaqualone?", McGarry said:
The normal effect is as a sedative; it was originally introduced as a sleeping pill and it is, although it has the same effect as the older ones which were the barbiturates or like Nembutal or Seconal, it chemically is not in that category, it does have the same effect in that the onset of action is quick, a person will go to sleep relatively quickly after taking it within 30 minutes to an hour and its effect will last for about 6 to 8 hours.
Admitting this testimony into evidence was error. L. H. Smith Commonwealth, 223 Va. 720, 292 S.E.2d 362 (1982). In Smith, an expert witness was permitted to state his opinion regarding the effect of lysergic acid diethylamide (LSD) on the human body. He testified that LSD has "made people go as far as to tear their eyes right out of their sockets, chew off an arm, jump out of windows, do some really... bizarre things." Id. at 722, 292 S.E.2d at 363. We held that since this testimony was irrelevant to the issue of whether Smith sold LSD, it was inadmissible. Furthermore, we concluded the testimony "only served to inflame and excite the passions of the jury." Id. at 722, 292 S.E.2d at 363.
The Commonwealth argues that if McGarry's testimony was inadmissible, it was harmless error. We agree. Unlike the testimony we considered in Smith, McGarry's was not such as would excite the passions of the jury. While he testified that excessive use of the drug is dangerous, he was careful to state its normal effect is that produced by a sleeping pill. We view this testimony as being innocuous, and while it was erroneously admitted, it does not justify a reversal of Lane's conviction.
Lane also objects to the testimony of a second expert called by the Commonwealth. Richard Lee, a chemist, testified the pills in question were "clandestinely" made and could have been manufactured in a number of places, either inside or outside the country. Lane argues this testimony was beyond Lee's field of expertise. We do not agree. The qualification of an expert is within the sound discretion of the trial court. Freeman Commonwealth, 223 Va. 301, 315, 288 S.E.2d 461, 469 (1982). Lee had performed over 1,200 drug analyses, approximately 150 of them involving methaqualone. His conclusion the pills were clandestinely made followed directly from his analysis, based on the chemical makeup of the pills and the markings on them.
Another of Lane's assignments of error relates to the testimony of a police officer that a large quantity of packaged pocketknives, T-shirts, and other items was found in the house. Lane argues this evidence was irrelevant and prejudicial.
The Commonwealth argues its questioning of the officer was in response to issues raised by Lane's counsel and that, if the admission of the testimony was error, it was invited by Lane. The transcript supports this contention. Lane's attorney questioned the officer regarding the search of the house as follows:
Q. [You] [l]eft no stone unturned, correct?
A. I try not to.
Q. All right, did you find anything?
A. I found a lot of things but no contraband.
Q. Not anything suspicious?
A. No contraband. On re-direct examination of the witness by the Commonwealth's Attorney, the following occurred:
Q. All right,... you mentioned in response to a defense question there when they asked if you found anything suspicious, you replied you found no contraband; did you find anything else suspicious in the house?
A. To me it appeared to be suspicious, yes, sir.
Q. All right, and what were these items?
A. I found a large quantity of pocketknives, hundreds of T-shirts still in their container, things of that nature, large quantities of different items, saleable items that does [sic] not usually appear in a residence or a home. We agree with the Commonwealth that any error regarding this testimony was invited by Lane. Clark Commonwealth, 202 Va. 787, 791, 120 S.E.2d 270, 273 (1961); Hundley Commonwealth, 193 Va. 449, 454, 69 S.E.2d 336, 339 (1952).
In a final evidentiary matter, Lane objects to the admission into evidence of the affidavit for the search warrant. The basis for Lane's objection at trial was that the warrant and affidavit were not available for inspection prior to trial as required by Code | 19.2-54. * She argues that under this Code section an affidavit not properly filed is inadmissible at trial. The section, however, deals with the admissibility of evidence seized in the search and is silent on the introduction of the affidavit at trial. We find no merit in the argument that Code | 19.2-54 precluded the introduction of the affidavit.
* Code | 19.2-54 states in pertinent part:
Such affidavit shall be certified by the officer who issues such warrant and delivered by such officer... to the clerk of the circult court... within seven days after the issuance of such warrant and shall by such clerk be preserved as a record and shall at all times be subject to inspection by the public. Each such clerk shall maintain an index of all such affidavits filed in his office in order to facilitate inspection....
Failure of the officer issuing such warrant to file the required affidavit shall not invalidate any search made under the warrant unless such failure shall continue for a period of thirty days. If the affidavit is filed prior to the expiration of the thirtyday period, nevertheless, evidence obtained in any such search shall not be admissible until a reasonable time after the filing of the required affidavit.
On appeal, Lane also argues the affidavit should not have been admitted as substantive evidence. However, this argument was not made at trial, and Lane is therefore precluded from raising it on appeal. Rule 5:21.
Finally, Lane contends the trial court erred in not suspending or reducing her sentence. These are matters resting within the sound discretion of the trial court, and we cannot say from the record before us that this discretion was abused. Abdo Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977); Slayton Commonwealth, 185 Va. 357, 365, 38 S.E.2d 479, 482-83 (1946).
Finding no reversible error, we will affirm the judgment.
Affirmed.
Affirmed.
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ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Client Solution Architects, LLC ) ASBCA No. 62147
)
Under Contract No. N00178-05-D-4242 et al. )
APPEARANCES FOR THE APPELLANT: Nicole J. Owren-Wiest, Esq.
Charles Baek, Esq.
Crowell & Moring LLP
Washington, D.C.
APPEARANCES FOR THE GOVERNMENT: Arthur M. Taylor, Esq.
DCMA Chief Trial Attorney
Kara M. Klaas, Esq.
Trial Attorney
Defense Contract Management Agency
Chantilly, VA
ORDER OF DISMISSAL
The dispute has been settled. The appeal is dismissed with prejudice.
Dated: May 14, 2020
JOHN J. THRASHER
Administrative Judge
Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 62147, Appeal of Client Solution
Architects, LLC, rendered in conformance with the Board’s Charter.
Dated: May 14, 2020
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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138 P.3d 1197 (2006)
Douglas FRY and Dawn Fry, Petitioners-Appellees,
v.
Steffani GARCIA, Respondent-Appellant.
No. 1 CA-CV 05-0663.
Court of Appeals of Arizona, Division 1, Department D.
July 3, 2006.
*1198 Chester R. Lockwood, Jr., Attorney at Law By Chester R. Lockwood, Jr., Prescott, Attorneys for Petitioners-Appellees.
Collins & Collins, LLP By C. Robert Collins, Phoenix, Attorneys for Respondent-Appellant.
OPINION
KESSLER, Judge.
¶ 1 Steffani Garcia ("Mother") appeals from the superior court's denial of her motion for relief from judgment pursuant to Arizona Rules of Civil Procedure 60(c) ("Rule 60(c)"). The primary issue presented is whether the superior court loses authority to rule on grandparent visitation petitions when such authority is based on the child being born out of wedlock, but the parents subsequently marry. We hold that in that circumstance the superior court retains authority over the grandparent visitation matter. Accordingly, the superior court properly denied Mother's Rule 60(c) motion on this and the other grounds asserted.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 Due to the complicated procedural history, we set forth only those facts which are relevant to this decision. Mother and Benjamin Fry ("Father") had a child out of wedlock in 2001. Douglas and Dawn Fry ("Grandparents") are the child's paternal grandparents. Grandparents filed a petition to establish grandparent visitation in Yavapai County in May 2002. At that time, Mother and Father were not married.
¶ 3 After reaching an initial agreement through mediation, which was approved by the court, Grandparents filed a second request for mediation in March 2004. By this time, Mother and Father had married, although a dissolution proceeding was pending in Maricopa County. The parties proceeded with mediation in Yavapai County and agreed upon a specific grandparent visitation schedule, which the superior court approved.
¶ 4 Grandparents subsequently sought to enforce the visitation order and Mother filed *1199 a Rule 60(c) motion to set aside that order based in part on an alleged misrepresentation by Grandparents' counsel. The superior court denied Mother's Rule 60(c) motion, finding it was untimely and did not meet the criteria for granting relief. Subsequently, the court ordered the grandparent visitation matter transferred to the Superior Court in Maricopa County to be heard in connection with the dissolution proceedings.
¶ 5 Mother filed a timely notice of appeal from the order denying her Rule 60(c) motion. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(C) (2003).
DISCUSSION
¶ 6 Mother presents two issues on appeal. The first issue is whether pursuant to A.R.S. § 25-409(A)(3) (Supp.2005), the superior court is divested of jurisdiction over a grandparent visitation issue when the parents of a child born out of wedlock subsequently marry. Mother's argument is a question of law that we review de novo. See In re Marriage of Crawford, 180 Ariz. 324, 326, 884 P.2d 210, 212 (App.1994) ("Subject matter jurisdiction is a question of law; our review is therefore de novo."); Blum v. State, 171 Ariz. 201, 204, 829 P.2d 1247, 1250 (App.1992) (questions of statutory construction are issues of law for which our review is de novo).
¶ 7 Mother's second issue is whether the superior court erred in denying her Rule 60(c) motion based on alleged misrepresentations of opposing counsel. We review the denial of a motion for relief from judgment for an abuse of discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985).
Jurisdictional Issue
¶ 8 The superior court denied Mother's Rule 60(c) motion, which asserted in part that the court had lost subject matter jurisdiction over the grandparent visitation issue once the parents had married. When Grandparents filed their initial request for visitation, Mother and Father were not and had never been married and no paternity action was pending. One of the prerequisites to granting grandparent visitation is that the child is born out of wedlock. See A.R.S. § 25-409(A)(3).[1] It is undisputed the child was born out of wedlock. Thus, when the visitation petition was filed, section 25-409(A)(3) provided the superior court with authority to consider and possibly grant the petition. It is undisputed that the child was born out of wedlock and for purposes of section 25-409(A)(3), that fact does not change by the parents later marrying. Thus, the court had authority under the statute at all times to grant a petition for grandparent visitation.
¶ 9 Mother claims that once she and Father later married, the superior court lost "jurisdiction" to grant Grandparents visitation. Regardless of whether we view Mother's argument as contending the court lost subject matter jurisdiction or simply jurisdiction in the sense of statutory authority to provide Grandparents relief, we disagree with Mother's argument.[2] For a statute to *1200 divest the superior court of jurisdiction, even in the broader sense of authority to act, the legislature must declare its intent to create divestiture "explicitly and clearly." See Daou v. Harris, 139 Ariz. 353, 356-57, 678 P.2d 934, 937-38 (1984) (non-jurisdictional statute requiring referral of medical malpractice claims to medical review panel did not divest trial court of "jurisdiction" to enter a default judgment for failure to timely answer complaint under appropriate rules of civil procedure). The statutory scheme here does not state that the superior court will lose authority over on-going grandparent visitation petitions if the parents of a child born out of wedlock subsequently marry. If the legislature intended such a divestiture, it could have so provided.
¶ 10 We also must reject Mother's argument to the extent it contends the superior court lost subject matter jurisdiction once the parents married. This is because "jurisdiction is established at the time of filing of the lawsuit and cannot be ousted by subsequent actions or events." Resolution Trust Corp. v. Foust, 177 Ariz. 507, 517, 869 P.2d 183, 193 (App.1993) (citations omitted); see also State v. Howell, 107 Ariz. 300, 301, 486 P.2d 782, 783 (1971) ("Jurisdiction depends upon the state of affairs existing at the time it is invoked . . . and once having attached is not lost by subsequent events.") (citations omitted). "Ordinarily, a court that has acquired jurisdiction of a case cannot be deprived of jurisdiction by subsequent events in the course of its proceedings, even if those subsequent events would have prevented jurisdiction from attaching in the first place." 20 Am.Jur.2d Courts § 111 (1995) (internal footnotes omitted).
¶ 11 Arizona public policy favors retention of jurisdiction rather than divestiture. See Pritchard v. State, 163 Ariz. 427, 430, 788 P.2d 1178, 1181 (1990) ("[A] presumption exists in favor of retention of jurisdiction, and a divestiture of jurisdiction cannot be inferred but must be clearly and unambiguously found.").
¶ 12 Based on these principles, the parents' subsequent marriage did not divest the superior court of jurisdiction, in the sense of subject matter jurisdiction or authority, over the on-going grandparent visitation issue. Thus, the superior court properly denied Mother's Rule 60 motion on this ground.
Timeliness of Rule 60(c) Motion
¶ 13 Mother also contends that Grandparents' counsel misrepresented the law when counsel told her that she had to agree to allow Grandparents access to the child. A Rule 60(c) motion based on the misrepresentations or misconduct of the other party under subsection (3) of the rule must be filed within six months of the judgment. See Rule 60(c) ("The motion shall be filed within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment or order was entered or proceeding was taken.")[3] The superior court correctly denied this portion of the Rule 60 motion as time-barred because Mother did not file the motion within six months from the court's last order granting grandparent visitation.
Attorneys' Fees On Appeal
¶ 14 Mother requests an award of attorneys' fees on appeal pursuant to A.R.S. § 25-324 (2000). Grandparents also request an award of fees pursuant to § 25-324 and claim that an award of fees should be imposed against Mother's attorney under Arizona Rule of Civil Appellate Procedure ("ARCAP") 25 due to the frivolous nature of the appeal. The issue regarding the parents' marriage after a grandparent visitation order, however, is one of first impression and therefore, not clearly without merit. Although Mother's claim for relief from judgment *1201 based on Grandparents' counsel's alleged misrepresentations was untimely, in the exercise of our discretion we deny all requests for attorneys' fees on appeal
CONCLUSION
¶ 15 We affirm the order denying Mother Rule 60(c) relief. Grandparents may seek their taxable costs on appeal by complying with ARCAP 21.
CONCURRING: PATRICIA A. OROZCO and JOHN C. GEMMILL, Judges.
NOTES
[1] Two alternative statutory prerequisites are: (1) the marriage of the child's parents has been dissolved for at least three months and (2) one parent has been missing or deceased for at least three months. A.R.S. § 25-409(A). Neither of these bases applied here. In any event, the superior court must also base any decision on such visitation on the best interests of the child. Id.
[2] There are three types of jurisdiction: subject matter jurisdiction, personal jurisdiction and jurisdiction to render a particular judgment. Sil-Flo Corp. v. Bowen, 98 Ariz. 77, 81, 402 P.2d 22, 25 (1965). Subject matter jurisdiction is the "`power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power.'" Id. (quoting Foltz v. St. Louis & S.F. Ry. Co., 60 F. 316, 318 (8th Cir.1894)). Jurisdiction does "`not relate to the right of the parties . . . but to the power of the court . . . [it] is an abstract inquiry, not involving the existence of an equity (right) to be enforced, nor of the right of the plaintiff to avail himself of it if it exists. It precedes these questions. . . .'" City of Phoenix v. Rodgers, 44 Ariz. 40, 48-49, 34 P.2d 385, 388-89 (1934) (citation omitted). If a court has subject matter jurisdiction, it has the power to determine and decide the matter in the first instance which includes the power to decide it correctly or incorrectly. "The test of jurisdiction is whether the tribunal has power to enter upon the inquiry; not whether its conclusion in the course of it is right or wrong." Greater Arizona Savings and Loan Ass'n v. Tang, 97 Ariz. 325, 327, 400 P.2d 121, 123 (1965).
[3] Mother contended below that her motion was based upon Rule 60(c)(6). A motion under that subsection of the rule is not required to be filed within six months of the order. However, a Rule 60(c)(6) motion cannot be premised on a ground provided for by the first five subsections of the rule. Birt v. Birt, 208 Ariz. 546, 551, ¶ 22, 96 P.3d 544, 549 (App.2004). Mother's motion was premised on an alleged misrepresentation by opposing counsel, a ground provided for by subsection (3) of the rule.
| {
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/12/2019 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
Cite as 303 Neb. 156
Ross A. Pantano and K aryl L. Einerson, as Copersonal
R epresentatives of the Estates of A rlene L. Pantano
and A nthony R. Pantano, appellees and
cross-appellants, v. A merican Blue R ibbon
Holdings, LLC, doing business as Village Inn,
appellant and cross-appellee, and Francis J.
Kucirek, as Trustee of the Kucirek Living
Trust, and Pamela K. Kucirek, as Trustee
of the Kucirek Living Trust, appellees.
___ N.W.2d ___
Filed May 17, 2019. No. S-18-815.
1. Verdicts: Appeal and Error. When reviewing a jury verdict, an appel-
late court considers the evidence and resolves evidentiary conflicts in
favor of the successful party.
2. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is competent
evidence presented to the jury upon which it could find for the success-
ful party.
3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
4. Rules of Evidence: Hearsay. An excited utterance does not have to be
contemporaneous with the exciting event. It may be subsequent to the
event if there was not time for the exciting influence to lose its sway.
5. ____: ____. The true test of an excited utterance is not when the excla-
mation was made but whether, under all the circumstances, the declarant
was still speaking under the stress of nervous excitement and shock
caused by the event.
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PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
Cite as 303 Neb. 156
6. ____: ____. Relevant facts to determine whether a statement is an
excited utterance include the declarant’s manifestation of stress and the
declarant’s physical condition.
7. Trial: Evidence: Jury Instructions. An error in the admission of evi-
dence may be cured by an instruction from the court.
8. Pretrial Procedure: Pleadings: Evidence. A motion in limine is a pro-
cedural step to prevent prejudicial evidence from reaching the jury.
9. Trial: Pleadings: Evidence: Appeal and Error. It is not the office
of a motion in limine to obtain a final ruling upon the ultimate admis-
sibility of the evidence. Therefore, when a court overrules a motion in
limine to exclude evidence, the movant must object when the particular
evidence is offered at trial in order to predicate error before an appel-
late court.
10. Summary Judgment: Final Orders: Appeal and Error. The denial
of a motion for summary judgment is not a final order reviewable
on appeal.
11. Negligence: Proof. Establishing that an accident has occurred does not
prove a case of negligence.
12. Negligence: Evidence: Presumptions: Proof. Negligence is not pre-
sumed and must be proved by evidence, direct or circumstantial.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed as modified.
Stephen G. Olson II and Andrea A. Montoya, of Engles,
Ketcham, Olson & Keith, P.C., for appellant.
John M. Lingelbach, Minja Herian, and Casandra M.
Langstaff, of Koley Jessen, P.C., L.L.O., for appellees Ross A.
Pantano and Karyl L. Einerson.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Following trial, a jury entered a verdict in favor of the
estate of Arlene L. Pantano for $245,000 and in favor of the
estate of Anthony R. Pantano for $15,000, but found that
Arlene was 25 percent negligent. Accordingly, the district
court entered a judgment for the estates in the amount of
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PANTANO v. AMERICAN BLUE RIBBON HOLDINGS
Cite as 303 Neb. 156
$195,000. American Blue Ribbon Holdings, LLC (American
Blue Ribbon), appeals. We affirm as modified.
FACTUAL BACKGROUND
Arlene and her husband, Anthony, filed suit against
American Blue Ribbon on October 22, 2015. The suit alleged
damages for injuries and loss of consortium suffered when
Arlene fell at a Village Inn restaurant owned by American
Blue Ribbon. Arlene alleged that she suffered a broken hip
when she tripped on an entryway rug and fell near the
entrance of the restaurant.
Arlene died of natural causes on July 19, 2016. Anthony had
died approximately 4 months earlier, on March 26. This lawsuit
was revived in the names of the copersonal representatives of
Arlene’s and Anthony’s estates (the estates).
A jury trial was held in June 2018. The jury found for the
estates in the total amount of $260,000, but found Arlene
was 25 percent negligent in the cause of her fall. The district
court entered judgment in favor of the estates for $195,000.
American Blue Ribbon appealed.
At trial, Arlene’s children, Ross A. Pantano, Karyl L.
Einerson (Karyl), and Marilou DiPrima (Marilou), were all
permitted to testify, over American Blue Ribbon’s hearsay
objection, that Arlene told them that she had tripped on the
entryway rug at the restaurant and fell, injuring her hip. In
addition, evidence was adduced as to Arlene’s medical bills,
along with testimony that American Blue Ribbon had not paid
those bills. Further details of evidence offered will be dis-
cussed as appropriate.
ASSIGNMENTS OF ERROR
On appeal, American Blue Ribbon assigns that the district
court erred in (1) denying its motions in limine; (2) overruling
its hearsay objections as to the testimony of Ross, Karyl, and
Marilou; (3) admitting evidence that American Blue Ribbon
offered to pay, and then did not pay, medical bills incurred
by Arlene; (4) denying its motion for summary judgment;
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(5) denying its motion for directed verdict; (6) denying its
motion for judgment notwithstanding the verdict; and (7) deny-
ing its motion for new trial.
On cross-appeal, the estates assign that the district court
erred in (1) overruling their motion to strike American Blue
Ribbon’s comparative negligence affirmative defense, (2)
instructing the jury as to the comparative negligence affirma-
tive defense, and (3) providing a jury verdict form incorporat-
ing comparative negligence.
STANDARD OF REVIEW
[1,2] When reviewing a jury verdict, an appellate court
considers the evidence and resolves evidentiary conflicts in
favor of the successful party.1 A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is com-
petent evidence presented to the jury upon which it could find
for the successful party.2
[3] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de
novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay
grounds.3
ANALYSIS
The primary issues on appeal in this case are (1) whether
statements made by Arlene and Anthony at the time of Arlene’s
fall were admissible under the so-called excited utterance
exception to the prohibition against hearsay4; (2) whether
1
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
2
Id.
3
TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908
N.W.2d 60 (2018).
4
See Neb. Rev. Stat. § 27-803(1) (Reissue 2016).
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the admission into evidence of a statement of a Village Inn
employee suggesting that American Blue Ribbon would pay
Arlene’s medical bills, along with testimony that American
Blue Ribbon did not pay those bills, was prejudicial; and (3)
whether the district court erred in instructing the jury with
regard to American Blue Ribbon’s affirmative defense of com-
parative negligence.
Excited Utterance.
American Blue Ribbon assigns on appeal that the district
court erred in admitting Arlene’s statement that she fell on the
entryway rug, because that statement was hearsay and did not
fall within the excited utterance exception to the hearsay rule.
Specifically, American Blue Ribbon contends that Arlene’s
statement did not relate to a “startling event”5; that the state-
ment was not made under the “stress” of the event6; and that,
in any case, the statement was unreliable because Arlene had
dementia. In addition, American Blue Ribbon argues that the
estates did not establish that there was a defect in the entryway
rug that would allow Ross’ testimony regarding Arlene’s state-
ment to be considered reliable.
Section 27-803 provides that “[a] statement relating to a
startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition” is
“not excluded by the hearsay rule.” For a statement to qualify
as an excited utterance under § 27-803(1), the following crite-
ria must be established: (1) There must have been a startling
event, (2) the statement must relate to the event, and (3) the
statement must have been made by the declarant under the
stress of the event.7
[4-6] An excited utterance does not have to be contempo-
raneous with the exciting event. It may be subsequent to the
5
Id.
6
Id.
7
State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
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event if there was not time for the exciting influence to lose
its sway.8 The true test is not when the exclamation was made
but whether, under all the circumstances, the declarant was
still speaking under the stress of nervous excitement and shock
caused by the event.9 “Relevant facts include the declarant’s
manifestation of stress, such as ‘“yelling,”’ and the declarant’s
physical condition.”10
Arlene’s statements to her children regarding the cause of
her injury fall within the excited utterance exception. Ross tes-
tified that Arlene, who was 90 years old at the time, was upset,
crying, and in obvious pain after the fall. The evidence showed
that Arlene had fractured her hip during the incident. Anthony
was pacing and obviously distressed. Thus, when considered
as to this declarant, the fall would be a startling event. And
Arlene’s statement that she tripped over the entryway rug was
related to that startling event.
Furthermore, Arlene’s statement to Ross that she had tripped
over the entryway rug was made at the restaurant shortly after
her fall and prior to her being transported to the hospital.
Arlene’s statements to Karyl and Marilou were made within
“minutes” of Arlene’s transport to the hospital. Both Karyl
and Marilou testified that their mother was upset and in pain.
Marilou testified that Arlene told her that she tripped on the
entryway rug as she entered the restaurant and that Arlene indi-
cated with her hands an irregularity with the rug that Marilou
described to Arlene as the rug’s having been buckled.
Upon our de novo review, we conclude that Arlene was still
under the influence of the startling event at the time she made
the statements to Ross, Karyl, and Marilou.
And we find no merit to American Blue Ribbon’s assertion
that the fact that Arlene had been diagnosed with dementia
8
Id.
9
Id.
10
Id. at 929, 906 N.W.2d at 325.
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affected the admissibility of her statements as excited utter-
ances. American Blue Ribbon is correct that the touchstone
of the excited utterance exception is trustworthiness. But a
person suffering from dementia is still able to experience a
startling event and react to that event accordingly. American
Blue Ribbon cited to no authority and offered no evidence to
suggest otherwise. A reaction to a startling event made under
the stress of that event is reflexive and unthinking; it is not the
product of conscious thought.11 Such a statement might not be
accurate, and any shock might have interfered with the declar-
ant’s observation or memory,12 but that does not prevent the
statement from being an excited utterance. That Arlene was
diagnosed with dementia was evidence produced at trial, but
that fact does not affect the admissibility of her statement as an
excited utterance. There is no merit to this assertion.
Admission of Offer to Pay
Medical Expenses.
American Blue Ribbon also argues that the district court
erred in allowing Ross to testify that a Village Inn employee
told him that Arlene’s medical bills would be paid by the res-
taurant and in admitting Ross’ testimony that American Blue
Ribbon and Village Inn had not, in fact, paid those bills.
Neb. Rev. Stat. § 27-409 (Reissue 2016) provides that
“[e]vidence of furnishing or offering or promising to pay medi-
cal, hospital, or similar expenses occasioned by an injury is
not admissible to prove liability for the injury.” As American
Blue Ribbon observes, Ross was permitted, in contravention of
this statute, to testify that a Village Inn employee told him that
Arlene’s medical expenses would be paid by the restaurant, but
that the bills were not ever paid by Village Inn or American
Blue Ribbon.
11
G. Michael Fenner, The Hearsay Rule 116 (3d ed. 2013).
12
Id.
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[7] But this court has held that an error in the admission of
evidence may be cured by an instruction from the court.13 In
this case, jury instruction No. 12 was also read to the jury:
There has been evidence that the Defendant has not
paid any of Plaintiffs’ medical bills. The law of Nebraska
is that a Defendant such as Village Inn has no duty to pay
medical bills of Arlene Pantano unless and until there has
been a determination that the Defendant was negligent or
breached a duty owed to Arlene Pantano.
Indeed, instruction No. 12 was drafted by counsel for American
Blue Ribbon and was the suggested cure for the error of the
erroneous admission of Ross’ testimony. There is no merit to
this assignment of error.
Liability of American Blue Ribbon.
American Blue Ribbon does not specifically assign that the
district court erred in finding sufficient evidence to support
the jury’s finding of liability. But it does argue as much in its
discussion of its assigned errors of the court’s denial of sum-
mary judgment, directed verdict, judgment notwithstanding
the verdict, and new trial.
In any case, American Blue Ribbon’s contention is without
merit, because there was evidence to support the jury’s finding
of liability. First, Karyl and Marilou both testified that Arlene
told them that she tripped over the entryway rug at the Village
Inn and that, in the words of Marilou, the rug was “buckled.”
As noted above, Arlene’s statements are admissible hearsay
under the excited utterance exception.
In addition, Ross testified that as Arlene was getting loaded
into an ambulance, a Village Inn server wearing a name tag
with the name “Makenzie” told him that she had tripped
on the entryway rug twice that morning. Though American
Blue Ribbon objected at trial on the basis that the server’s
13
Olson v. City of Omaha, 232 Neb. 428, 441 N.W.2d 149 (1989).
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statement was inadmissible hearsay, they did not clearly
assign and argue that admission as error on appeal. There was
sufficient evidence that American Blue Ribbon was negligent,
and thus there is no merit to American Blue Ribbon’s assign-
ments of error regarding the denial of its motion for directed
verdict, for judgment notwithstanding the verdict, and for
new trial.
Remaining Assignments of Error.
American Blue Ribbon has also alleged various other assign-
ments of error, all of which are without merit.
First, American Blue Ribbon contends that the district court
erred in denying its motions in limine, specifically arguing that
the estates failed to disclose witnesses, and for that reason the
testimony of those witnesses should be stricken.
[8,9] A motion in limine is a procedural step to prevent
prejudicial evidence from reaching the jury.14 It is not the office
of a motion in limine to obtain a final ruling upon the ultimate
admissibility of the evidence.15 Therefore, when a court over-
rules a motion in limine to exclude evidence, the movant must
object when the particular evidence is offered at trial in order
to predicate error before an appellate court.16 Thus, by assign-
ing only that the court erred in denying its motions in limine,
American Blue Ribbon has failed to preserve those arguments
on appeal.
Moreover, American Blue Ribbon simply argues that certain
witnesses were not disclosed and that their testimonies should
be stricken. But American Blue Ribbon does not identify in its
brief which witnesses were not disclosed. It is not the job of
this court to search the record to find error. There is no merit
to this assignment of error.
14
McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).
15
Molt v. Lindsay Mfg. Co., 248 Neb. 81, 532 N.W.2d 11 (1995).
16
McCune v. Neitzel, supra note 14.
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[10] American Blue Ribbon also assigns that the district
court erred in denying its motion for summary judgment. But
the denial of a motion for summary judgment is not a final
order reviewable on appeal,17 and as such, this assignment is
without merit.
Finally, American Blue Ribbon also argues, though does not
assign, that the district court erred in allowing Ross to testify
regarding the effect that Arlene’s fall had on her dementia.
Because this was not specifically assigned as error, we will not
address that contention further.
Comparative Negligence.
In its cross-appeal, the estates contend that the district court
erred in overruling their motion to strike, instructing the jury
on comparative negligence, and including comparative neg-
ligence on the verdict form, because American Blue Ribbon
failed to offer any evidence that Arlene was negligent.
In response, American Blue Ribbon argues that the estates
did not prove that it was negligent and further asserts that
Arlene’s age, dementia diagnosis, and preexisting medical con-
ditions were such that “could reasonably lead a fact-finder to
conclude [that Arlene] was at fault for her fall.”18
[11,12] Establishing that an accident has occurred does not
prove a case of negligence.19 Negligence is not presumed and
must be proved by evidence, direct or circumstantial.20 Nothing
American Blue Ribbon directs us to shows that any action by
Arlene was negligent. As the estates argue, there is no sugges-
tion that Arlene was not wearing her glasses or shuffling her
feet or that she did not look where she was going. Nor was
there evidence that due to her age and health, Arlene should
17
See Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).
18
Reply brief for appellant at 28.
19
Burns v. Veterans of Foreign Wars, 231 Neb. 844, 438 N.W.2d 485 (1989).
20
Id.
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have known to use a wheelchair or a walker. In short, there is
no evidence supporting a conclusion that Arlene was negligent.
We accordingly find that the estates’ assignment of error on
cross-appeal has merit.
Having found that the cross-appeal on the issue of compara-
tive negligence has merit, we conclude that the district court
erred in instructing the jury with regard to comparative negli-
gence and in providing a verdict form allowing for a deduction
for Arlene’s negligence. The judgment in favor of the estates
should not have been reduced by 25 percent, and we therefore
modify the judgment to $260,000.
CONCLUSION
The decision of the district court is affirmed as modified.
A ffirmed as modified.
Miller-Lerman, J., not participating.
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117 F.3d 1022
133 Lab.Cas. P 33,545, 3 Wage & Hour Cas.2d(BNA) 1729
Katherine L. PRICE, Plaintiff-Appellant,v.CITY OF FORT WAYNE, Defendant-Appellee.
No. 96-2249.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 5, 1996.Decided June 27, 1997.
Ronald E. James (argued), Jack E. Morris, Benson, Pantello, Morris & James, Fort Wayne, IN, for Plaintiff-Appellant.
J. Timothy McCauley (argued), Helmke, Beams, Boyer & Wagner, Fort Wayne, IN, for Defendant-Appellee.
Before POSNER, Chief Judge, and CUDAHY and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge.
1
In 1993 Congress passed, and the President signed, the Family & Medical Leave Act (FMLA or Act). Pub.L. 103-3, Feb. 5, 1993, 107 Stat. 6. Congress found that the Act was needed to help balance the burden of caretaking among family members and also to balance the demands of the workplace with the demands of the family. See 29 U.S.C. § 2601. Divisions of labor along gender lines were recognized as a powerful force in the American family affecting, in particular, the working lives of women. Congress sought to mandate a flexible leave allotment for medical and family reasons for all men and women working at least 1250 hours a year at firms employing 50 or more employees during at least 20 weeks of the year. See 29 U.S.C. § 2611(2), (4).
2
The goal was not to supplant employer-established sick leave and personal leave policies, but to provide leave for more uncommon and, presumably, time-consuming events such as having or adopting a child or suffering from what is termed a "serious health condition." And all this was to be accomplished with the assurance that an employee's job, or an equivalent one, would be waiting upon his or her return. It is the "serious health condition" with which we are concerned here. The court below held that an assemblage of diagnoses including elevated blood pressure, hyperthyroidism, back pain, severe headaches, sinusitis, infected cyst, sore throat, swelling throat, coughing and feelings of stress and depression could not, as a matter of law, constitute a "serious health condition." We find that, while these conditions in this case may not rise to the level of a "serious medical condition" as a matter of fact (a question necessarily left for the finder of fact), they are not barred from doing so as a matter of law.
3
Katherine Price worked for the City of Fort Wayne Department of Neighborhoods and Citizens Advocate from 1986 until 1994 when she was terminated for excessive absences. This case was pursued originally under a number of legal frameworks against a number of persons. Only the FMLA claim against the City of Fort Wayne (City) remains before us. The district court granted the City's motion for summary judgment, finding that Price did not suffer from a "serious health condition" and thus was not afforded the protections of the FMLA. We review de novo and vacate.
I. Serious Health Condition
4
The FMLA defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves--(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). The Department of Labor regulations1 have sought to answer the question "What is a 'serious health condition'..." in the following way:
5
(a) For purposes of FMLA, "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves:
6
(1) Inpatient care ... including any period of incapacity ... or any subsequent treatment in connection with such inpatient care; or
7
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
8
(i) A period of incapacity ... of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
9
(A) Treatment two or more times by a health care provider, ... or
10
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
11
(ii) Any period of incapacity due to pregnancy, or for prenatal care.
12
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
13
(A) Requires periodic visits for treatment by a health care provider, ...
14
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
15
(C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
16
(iv) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective....
17
(v) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider ... either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, ...
18
29 C.F.R. § 825.114.
19
Price does not allege a period of inpatient care, a pregnancy or a chronic serious health condition under the Act. Thus, we focus exclusively on § 825.114(a)(2)(i). There is no dispute that Price was under the continuing care of her doctor, Jonathan Gentile. She saw him on August 1, 18 and 24, 1994 and on September 2, 7, 9, 14 and 22 of 1994. Price received a thyroid ultrasound on August 22, 1994, a thyroid scan on August 29, 1994, an excision of a mass (diagnosed as a benign infected cyst) on September 2, 1994, a needle biopsy of her thyroid on September 23, 1994 and finally, a CT scan of her brain, her brain stem and sinuses, also on September 23, 1994. Whether this series of visits and procedures constitutes "[a] serious health condition involving continuing treatment by a health care provider" depends on the answer to the following question: Can several diagnoses, if temporally linked, no one of which rises alone to the level of a serious health condition, if taken together, constitute a serious health condition?
20
The FMLA was enacted to help working men and women balance the conflicting demands of work and personal life. It does so by recognizing that there will be times in a person's life when that person is incapable of performing her work duties for medical reasons. Whether these medical reasons take the form of one discrete illness, such as cancer, or the form of several different and seemingly unrelated illnesses all afflicting a single individual at the same time, such as in Price's case, is of no moment to the purposes of the FMLA. Thus we answer the question "yes." After all, it is not the disease that receives leave from work; it is the person. And how can one's ability to perform at work be seriously impaired by a single serious illness but not by multiple illnesses having a serious impact? The answer, of course, is that it cannot; the disability is related to the cumulative impacts of illness on one's body and mind.
21
Simply saying that multiple diagnoses can, together, give rise to a "serious health condition" does not, however, resolve the issue. Just because they can does not mean they do. Although the issue is close, Price has submitted enough evidence to withstand summary judgment on this point. Dr. Gentile swears in his affidavit that Price came to his office in "an alarming condition." He concludes that she "was on the edge of a break-down, both physically and mentally;" that "there was no way [Price] could perform her job, due to her mental and physical state, and ... that to attempt to continue to work in her condition would be seriously detrimental to her health." Coming, as this does, unrebutted by appropriate2 medical testimony, it remains for the trier-of-fact to decide if Price's multiple diagnoses taken together created a serious health condition. It will be important to consider, among other things, the specific guidelines provided by the Department of Labor regulations. For example, what was Price's period of incapacity? Did the treatment she received meet the requirements set forth in § 825.114(b)?
22
Both the parties and the district court devote considerable time and energy to citing or distinguishing other FMLA cases from Price's situation. Hence, we will briefly address these cases. In Seidle v. Provident Mut. Life Ins. Co., 871 F.Supp. 238 (E.D.Pa.1994), the employee stayed home to care for her ill son. The Seidle court held that the plaintiff could not show that her son had a "serious health condition" because he had been incapacitated (from attending daycare) for only three days, not the statutory four or more. Id. at 243-44. Further, the plaintiff took her son to the doctor on only one occasion; therefore, he was not receiving "continuing treatment by a health care provider." Id. at 244. Price's doctor ordered her to forgo work for a three week period; this easily surpasses the four-day requirement. And, as we have noted, Price saw her doctor on many occasions and was under his continuing treatment. In Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028 (M.D.Tenn.), the court found no serious health condition because the plaintiff failed to present evidence that her doctor ordered her to stay away from work. Instead, she submitted an after-the-fact statement by her doctor that "it was reasonable for someone to miss three or four days for her type of illness" and that she felt " 'too sick to work.' " Id. at 1037. Once again, Dr. Gentile ordered Price not to go in to work for three weeks. Finally, in Bauer v. Dayton-Walther Corp., 910 F.Supp. 306 (E.D.Ky.1996), the plaintiff suffered from rectal bleeding over a prolonged period of time. While certainly an alarming symptom, it apparently did not prevent Bauer from performing normally at work. In fact, Bauer admitted as much with respect to several specific days in question. Thus, unlike Price's allegations, Bauer's condition was not currently affecting his capabilities at work.
II. Notice to City of FMLA Applicability
23
The City also attempts to challenge Price's eligibility for FMLA leave on more technical grounds. The City charges that she failed to provide sufficient information to put the City on notice that she required FMLA leave and that she failed to provide the statutory 30-day notice.
24
Price filled out the City-provided leave request form and indicated that the cause was medical need. She attached a doctor's note requiring her to take the time off. This was sufficient information to put the City on notice that this was a possible FMLA leave situation. See Manuel v. Westlake Polymers Corp., 66 F.3d 758, 760, 764 (5th Cir.1995). It was then the City's responsibility to inquire further. See 29 C.F.R. § 825.303(b); Hendry v. GTE North, Inc., 896 F.Supp. 816, 828 (N.D.Ind.1995).
25
The City contends that by asking for paid leave only, and not also for unpaid leave, Price foreclosed the inference that she might be interested in FMLA leave. But the Department of Labor regulations repeatedly emphasize that it is the employer's responsibility to determine the applicability of the FMLA and to consider requested leave as FMLA leave. For example, "[t]he employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means." 29 C.F.R. § 825.303(b). Further, "[i]n all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee." 29 U.S.C. § 825.208(a). In Manuel the plaintiff was not even aware of the existence of the Act. Manuel, 66 F.3d at 760. Whether Price was aware of the Act is neither known nor particularly relevant. The FMLA does not require that an employee give notice of a desire to invoke the FMLA. Rather, it requires that the employee give notice of need for FMLA leave. This kind of notice is given when the employee requests leave for a covered reason. After a notice of this sort the employer can inquire further to determine if the FMLA applies.
26
The City pursues this issue by pointing out that Price never requested unpaid leave even when prompted to do so by the City. The City's letter of instruction, however, restricted her ability to successfully request unpaid leave by requiring that such a request "correspond with the City doctor's recommendation for time off." Because the City doctor found that Price could return to work, she would have had no basis under the letter to further pursue unpaid leave. Thus, the City's argument that Price failed to request FMLA leave (which is unpaid) or to adequately notify the City of her eligibility or interest in FMLA leave cannot be supported by Price's failure to specifically seek unpaid leave.
27
The employee must provide notice to the employer in a timely manner when the need for leave can be foreseen. The FMLA states with respect to notice that:
28
In any case in which the necessity for leave ... is foreseeable based on planned medical treatment, the employee--
29
....
30
(B) shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave ... except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
31
29 U.S.C. § 2612(e)(2). The City objects to Price's leave request because it did not provide 30 days notice. The City argues that, since she was able to work five hours the day before her leave began, she obviously could have worked thirty more days and then gone on leave. According to her doctor, Price could not delay thirty days before taking her leave. Therefore, she was required to give "such notice as [was] practicable." Whether Price gave the notice required is necessarily a question of fact, linked to her illness and its manifestations. See Manuel, 66 F.3d at 764. We note that Price's array of illnesses consisted of interrelated maladies that might be expected to worsen very quickly. High blood pressure, headaches and stress in particular are closely related and may wax and wane in unison. It is therefore a question of fact whether Price's notice to the City was sufficiently timely to trigger an FMLA inquiry.
III. City Employed Doctor for Second Opinion
32
An employer is entitled to verification of the need for medical leave. See 29 U.S.C. § 2613. If the employer doubts the certification provided by the employee's personal physician, the employer "may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer." 29 U.S.C. § 2613(c)(1). However, the health care provider chosen by the employer "shall not be employed on a regular basis by the employer." 29 U.S.C. § 2613(c)(2) (emphasis added). When Price submitted her leave request, the City sent her a letter informing her that to have her leave approved she must have the opinion of her doctor confirmed by a doctor furnished by the City. She was "directed to contact the Risk Management Department to obtain a second opinion from a City doctor with regard to [her] suitability for light office duty." Under the terms of the Act, however, the use of an employer-associated doctor for the second or third opinions is expressly prohibited. Thus, the City cannot gain support from its doctor's evaluation of her as fit to work. Under the Act the City doctor's opinion is excluded from consideration.
IV. Conclusion
33
Price's FMLA claim must be vacated and remanded to the district court. There are disputed material questions of fact. Price's medical condition requires further development to determine if she suffered from a "serious health condition." That determination, in turn, will help to establish whether the notice Price gave to the City was sufficiently timely under the circumstances. The opinion of the City doctor is insufficient to determine Price's medical condition.
34
The grant of summary judgment is VACATED and this case is REMANDED for further proceedings not inconsistent with this opinion.
1
Price's claim arose under the interim regulations which define a serious health condition, in part, as "[a]ny period of incapacity requiring absence from work, school, or other regular daily activities, of more than three calendar days, that also involves continuing treatment by (or under the supervision of) a health care provider." 29 C.F.R. § 825.114(a)(2) (7-1-94 Edition). Since the result is the same under either the interim or the final regulations, we discuss only the final regulations. Thus we hope to avoid having to repeat our analysis
2
We discuss below the City's use of a City-employed doctor
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4672
TYRONE JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-02-122)
Submitted: January 28, 2003
Decided: February 25, 2003
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Drewry B. Hutcheson, Jr., MCGINLEY, ELSBERG & HUTCHE-
SON, P.L.C., Alexandria, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Richard Cooke, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JONES
OPINION
PER CURIAM:
Tyrone J. Jones appeals his conviction and 110-month sentence,
imposed after a jury trial for possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2000). Finding no revers-
ible error, we affirm.
Jones first contends the district court erred in denying his suppres-
sion motion. This court reviews the factual findings underlying a
motion to suppress for clear error, while reviewing the legal determi-
nations de novo. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). Reviewing the evidence in the light most favorable to the Gov-
ernment, see United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998), we find that at the time of Jones’ initial seizure, police had rea-
sonable suspicion that criminal activity was afoot. See Terry v. Ohio,
392 U.S. 1 (1968). Nor, contrary to Jones’ allegations, was the initial
seizure anything more than a Terry stop. See United States v. Moore,
817 F.2d 1105, 1108 (4th Cir. 1987). Consequently, the court prop-
erly denied Jones’ suppression motion.
Jones next contends the district court erred by admitting into evi-
dence expert testimony regarding the likelihood of obtaining finger-
prints from a firearm. The Federal Rules of Evidence authorize the
presentation of expert opinion testimony in cases in which scientific,
technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue. Fed. R.
Evid. 702. A district judge considering a proffer of expert testimony
under Rule 702, whether based on scientific, technical, or other spe-
cialized knowledge, must ensure the evidence is relevant and reliable.
Oglesby v. General Motors Corp., 190 F.3d 244, 249-50 (4th Cir.
1999) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 589 (1993)). "A reliable expert opinion must be based on
scientific, technical, or other specialized knowledge and not on belief
or speculation, and inferences must be derived using scientific or
other valid methods." Id. at 250 (emphasis in original). The district
court’s decision to accept or reject the qualifications of an expert is
reviewed for abuse of discretion. United States v. Powers, 59 F.3d
1460, 1470-71 (4th Cir. 1995).
UNITED STATES v. JONES 3
We find the Government’s witness possessed sufficient specialized
knowledge to testify in this regard. Thus, the district court did not
abuse its discretion in admitting the contested testimony.
Jones next contends the district court erred by enhancing his sen-
tencing guidelines range pursuant to U.S. Sentencing Guidelines Man-
ual § 2K2.1(b)(4) (2000). This court conducts de novo review of legal
interpretation of the Guidelines and reviews the underlying factual
findings for clear error. United States v. Williams, 977 F.2d 866, 869
(4th Cir. 1992). We find no error with the district court’s application
of the enhancement.
Jones further contends the district court erred in assigning him one
criminal history point for a 2001 conviction for leaving the scene of
an accident. We find this argument to be without merit. Because
Jones received a sentence of thirty days, the district court properly
attributed one criminal history point to Jones for this offense. See
USSG § 4A1.2, comment. (n.2).
Accordingly, we affirm Jones’ conviction and sentence. We dis-
pense 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
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 6, 2012 Session
NEW LIFE MEN’S CLINIC, INC. v. DR. CHARLES BECK
Direct Appeal from the Circuit Court for Davidson County
No. 11C552 Barbara N. Haynes, Judge
No. M2011-01363-COA-R3-CV - Filed March 28, 2012
Appellee was granted a default judgment against Appellant in the general sessions court.
More than five months after the entry of the default judgment, Appellant filed a Tennessee
Rule of Civil Procedure 60.02 motion for relief from the general sessions court’s judgment.
The general sessions court dismissed the motion on grounds that it was not timely filed and
that the general sessions court, therefore, lacked jurisdiction to set aside its judgment.
Appellant appealed to the circuit court. Thereafter, Appellant filed a petition for writ of error
coram nobis, which was dismissed sua sponte by the circuit court. Appellant appeals.
Because the writ of error coram nobis has long been abolished in the civil law, this filing had
no legal effect; consequently, the trial court did not err in dismissing the writ. Affirmed and
remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.
Timothy H. Nichols, Nashville, Tennessee, for the appellant, New Life Men’s Clinic Inc.
Evalina C. Cheadle, Nashville, Tennessee, for the appellee, Dr. Charles Beck.
MEMORANDUM OPINION 1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
(continued...)
On or about March 8, 2010, Appellee Dr. Charles Beck filed suit against Nashville
Male Performance Clinic, L.L.C. and New Life Men’s Clinic (“New Life,” or “Appellant”)
in the General Sessions Court for Davidson County. The summons alleges “[b]reach of
employment contract for damages in excess of $67,000.” The civil warrant indicates that
service of process by certified mail was achieved on March 10, 2010.
The case was originally set for hearing on April 29, 2010. However, a letter, dated
April 28, 2010, from New Life’s attorney to Dr. Beck’s attorney, memorializes the parties’
agreement to continue the matter as to New Life; the matter was not continued as to
Nashville Male Performance Clinic. The second page of the civil warrant contains two
orders. The first, dated April 29, 2010, is for “judgment for $25,000 plus costs and attorney
fees against Nashville Male Performance Clinic, LLC. Attorney fees $8,333.33.” The
second order, which is undated, indicates that the case against New Life was continued to
June 25, 2010. It appears that the case against New Life was placed on the docket for
hearing on July 9, 2010. The record contains a letter to both parties’ attorneys noticing them
of the hearing date; however, New Life asserts that it did not receive any notice of the
rescheduled hearing, and thus failed to appear. On July 23, 2010, judgment was entered for
Dr. Beck “against Nashville Male Performance Clinic, LLC & New Life Men’s Clinic for
$25,000 plus $8,333.33 attorneys fees plus costs.”
According to its brief, more than five months after entry of the default judgment
against it, New Life received a letter indicating a substitution of counsel for Dr. Beck.
According to New Life, “[t]his was the first communication of any kind with respect to the
General Sessions case that New Life or its counsel was made aware of since New Life’s
counsel’s communication of April 28, 2010.” New Life claims that this correspondence
prompted it to check into the status of the general sessions case, at which time it discovered
that judgment had been entered against it on July 23, 2010.2
On January 7, 2011, New Life filed a motion to set aside the default judgment
rendered against it. This motion was specifically filed under Rule 60 of the Tennessee Rules
of Civil Procedure on the ground that New Life had received no notice of the July 2010
hearing. Dr. Beck filed a response in opposition to the motion to set aside. By Order of
January 18, 2011, New Life’s motion was denied, with the notation that it was “filed after
1
(...continued)
be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
2
Nashville Male Performance Clinic, L.L.C. did not appeal the general sessions court’s judgment
against it and is not a party to the instant appeal.
-2-
[the] 10 day appeal period expired.”
On January 27, 2011, within ten days of the entry of the general sessions court’s order
denying New Life’s motion to set aside, but approximately six months after the entry of the
default judgment against it, New Life filed an appeal to the Davidson County Circuit Court.
The circuit court appeal was filed by the attorneys who had represented New Life in general
sessions court; however, shortly after the appeal was taken, New Life replaced its counsel.
No issue has been raised concerning the timeliness of the notice of appeal to the circuit court.
The filing at issue in this appeal is the petition for writ of error coram nobis (the “Petition”),
which was filed on March 30, 2011 by New Life pursuant to Tennessee Code Annotated
Section 27-7-101 et seq. In relevant part, the petition for writ of error coram nobis asserts
that the default judgment against New Life should be set aside, revoked and annulled, and
that New Life should be allowed to litigate the underlying merits of Dr. Beck’s claim against
it. It is undisputed that New Life did not file a supersedeas bond in conjunction with its
Petition. Concurrent with the Petition, New Life filed a third-party complaint against Evan
Bass, who had allegedly sold New Life the assets of the Nashville Male Performance Clinic,
asserting that Mr. Bass had violated certain warranties.
The Petition specifically admits that “New Life was served with process in the original
General Sessions matter,” and further admits that the parties agreed to continue the general
sessions’ case against New Life. As noted above, the Petition alleges that it was only after
receiving the December 29, 2010 letter concerning substitution of counsel that New Life
contacted the court clerk’s office to determine the status of the case, at which time it
allegedly discovered the default judgment entered against it.
On April 21, 2011, Dr. Beck filed a motion to dismiss the circuit court appeal, arguing
that New Life “did not seek an appeal or file a motion to toll the ten day period.”
Consequently, Dr. Beck asserted that the general sessions’ judgment was final and that the
general sessions court lacked authority to suspend enforcement of the judgment, or, in the
Alternative, for Protective Order and to Require Bond from Plaintiff if Execution Proceeds.”
On May 20, 2011, New Life filed a motion titled “Motion to Set Expedited Hearing on
Petition for Writ of Error Coram Nobis, and for Supersedeas upon Pauper’s Oath or, in the
Alternative, for Installment Payments.” On June 3, 2011, the circuit court heard the motion
to dismiss. The court entered an order on June 13, 2011, stating, in relevant part, that:
[T]he Court finds that payment by installments shall be set for
payment of the final judgment entered [in the general sessions
court] against New Life Men’s Clinic and that the petition for
writ of error corum nobis should be dismissed on the Court’s
own motion.
-3-
It is, therefore, ORDERED, ADJUDGED and
DECREED that defendant New Life Men’s Clinic shall be, and
hereby is, allowed to pay the final judgment entered against it
herein on July 3, 2010, in monthly installments of $1,500.00,
due . . . on the 15th of each month beginning June 15, 2011.
New Life filed a timely notice of appeal to this Court. Concerned that payment of the
ordered installments might affect a waiver of its right to contest the dismissal of the Petition,
New Life moved this Court for an order allowing installment payments without waiver of
appeal, and for a protective order precluding collection. By Order of June 28, 2011, this
Court granted New Life’s request. However, upon review of the record, this Court
determined that the June 13, 2011 order appealed was not final as it did not adjudicate the
third-party complaint filed by New Life, and did not assess costs. By Order of September
1, 2011, this Court gave New Life sixty days to procure a final, appealable judgment from
the trial court. On October 13, 2011, the appellate record was supplemented to include an
October 10, 2011 order, which includes Tennessee Rule of Civil Procedure 54.02 language,
indicating that there is no just reason for delay of entry of final judgment. Although it does
not adjudicate the third-party claim, with the inclusion of Tennessee Rule of Civil Procedure
54.02 language, the order now appears final for purposes of appeal.
New Life raises one issue for review as stated in its brief:
Whether the trial court erred in its spontaneous dismissal of
New Life’s petition for writ of error coram nobis.
Unlike circuit and chancery courts, general sessions courts are courts of limited
jurisdiction. Generally, the jurisdiction of general sessions courts is limited to the rendition
of the judgment, the granting of an appeal, the stay and issuance of the execution, and the
issuing of writs of scire facias where proper. Travelers Indem. Co. v. Callis, 481 S.W.2d
384, 385 (Tenn. 1972). “The theory of their jurisdiction is that it extends only to the limits
defined by statute law, and that the giving to them [of] jurisdiction of a subject does not carry
with it all those general powers of making that jurisdiction effectual, or of preventing its
working injustice, which belongs to courts of general jurisdiction.” Id. Prior to 2007, our
general sessions courts were not permitted to amend or to grant relief from their own
judgments except for reason of clerical mistakes. However, in June of 2007, the Tennessee
Legislature enacted Tennessee Code Annotated Section 16-15-727(b), which provides:
Tenn. R. Civ. P. 60.02, regarding mistakes, inadvertence,
excusable neglect, fraud and other similar reasons set out in that
rule, shall apply to all courts of general sessions. A motion
-4-
under the general sessions court's authority under Tenn. R. Civ.
P. 60.02 shall be filed within ten (10) days of the date of
judgment. Once filed, the motion shall toll the ten-day period for
seeking de novo review in the circuit court until the
determination of the motion is concluded. Thereafter, an appeal
for de novo review in the circuit court shall be filed within ten
(10) days of the general sessions court's ruling on the motion to
relieve a party or the parties' legal representative from a final
judgment, order or proceeding in the same manner as provided
in Tenn. R. Civ. P. 60.02.
Tenn. Code Ann. §16-15-727(b). This statute makes Tennessee Rule of Civil Procedure
60.02 applicable in general sessions courts. Tennessee Rule of Civil Procedure 60.02
specifically states that:
Writs of error coram nobis, bills of review and bills in the nature
of a bill of review are abolished, and the procedure for obtaining
relief from a judgment shall be by motion as prescribed in these
rules or by an independent action.3
As recently discussed by our Supreme Court in Wlodarz v. State, __ S.W.3d ___, No.
E2008–02179–SC–R11–CO, 2012 WL 581210 (Tenn. Feb. 23, 2012):
With the adoption of Rule 60 of the Tennessee Rules of Civil
Procedure, which superseded coram nobis actions in civil cases,
the “anomalous result is that the writ of error coram nobis
continues to be an available remedy in criminal actions” while,
as observed in Mixon, “the civil writ of error coram nobis . . .
has been abolished for [four decades].” Mixon, 983 S.W.2d at
668.
Wlodarz, 2012 WL 581210, at *5 (footnote omitted); see also William H. Inman, Gibson’s
Suits in Chancery §53.01, at 53-3 (8th ed. 2004) (“Writs of error coram nobis . . . are
3
Tennessee Code Annotated Section 27-7-101 provides that:
Any person aggrieved by the judgment of any court in a civil case which
is not governed by the Tennessee Rules of Civil Procedure by reason of a
material error in fact may reverse the judgment upon writ of error coram
nobis as provided in this chapter.
-5-
abolished by the Rule.”). Because the writ of error coram nobis has been abolished in the
civil arena, New Life’s filing had no legal effect whatsoever in the circuit court.
Consequently, the trial court did not err in dismissing the writ on its own motion.
For the foregoing reasons, we affirm the trial court’s order. The case is remanded for
further proceedings as may be necessary. Costs of this appeal are assessed against the
Appellant, New Life Men’s Clinic, L.L.C., and its surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
-6-
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112 Cal.App.3d 132 (1980)
169 Cal. Rptr. 153
THE PEOPLE, Plaintiff and Appellant,
v.
SHELBY KIRK HARVEY, Defendant and Respondent.
Docket No. 20653.
Court of Appeals of California, First District, Division One.
November 17, 1980.
*134 COUNSEL
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Robert R. Granucci and William D. Stein, Deputy Attorneys General, for Plaintiff and Appellant.
*135 Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Robert P. Mason and Howard Harpham, Deputy State Public Defenders, for Defendant and Respondent.
OPINION
ELKINGTON, Acting P.J.
Defendant Harvey was charged in count I of an information with murder (Pen. Code, § 187). Counts II, III, IV and V charged him, respectively, with assault by means of force likely to produce great bodily injury with intent to commit murder (Pen. Code, § 217), assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245), assault by means of force likely to produce great bodily injury with intent to commit murder (Pen. Code, § 217), and assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245). As to counts II, III, IV and V it was alleged that in the commission of each offense Harvey personally used a deadly and dangerous weapon (Pen. Code, § 12022) and with intent to inflict such injury, inflicted great bodily injury (Pen. Code, § 12022.7). It was further alleged that Harvey had previously been convicted of robbery "and served a prison term for such offense and that he has not remained free of prison custody for five years immediately preceding the filing of the first accusatory pleading in this case, within the meaning of Penal Code Section 667.5(b)."
Thereafter guilty pleas were bargained for and entered. The bargain will be reflected by the following proceedings (the emphasis is ours): "The Court: People versus Harvey. The defendant is present with his counsel, Mr. Rosen. Mr. Wennerholm is representing the District Attorney of Monterey County....
"Mr. Rosen: Your Honor, we have a conditional plea.... The defendant will enter a plea of no contest to a lesser included offense of count I. Count I charges 187, murder. A lesser included would be voluntary manslaughter under Penal Code section 192 with the understanding that would be the principal term, the midterm of four years. Furthermore, ... he will admit the prior as alleged in this information. That he did suffer a prior conviction of robbery as alleged in the information.... Furthermore, he will enter a plea of guilty to count II of the information charging 217. And he will admit that he inflicted *136 great bodily injury within the meaning of 12022.7 under count II. And People would strike the allegation that he used a knife within the meaning of 12022(b) under count II. So under count II it will be under 217, a midterm of four years. Great bodily injury is three years. To make it consecutive with the principal term of count I, it will be one-third of four plus three as we have calculated, two years four months....
"The Court: Can you give one-third of three years, too? Mr. Wennerholm: Yes, you have to. It is part of the 1170 sub (a)....
"Mr. Rosen: Dismiss count III which is an alternative pleading of count II. Plead guilty to count IV under the same terms as count II. 217 plus the GBI. And one-third of that consecutive to the principal term is another two years four months. And then count V will be dismissed as an alternative pleading of count IV. And all the allegations of use of a knife under 12022(b) are stricken. They could not be imposed anyway where the great bodily injury enhancement is imposed. That adds up to a total of nine years, eight months. And the defendant enters this plea with a further understanding that under People versus Cole, that the court will strike the prior, leaving him with a total of eight years, eight months....
"The Court: Mr. Wennerholm, do you wish to be heard? Mr. Wennerholm: That is a correct statement of the plea bargain, your Honor. It also is understood that we will be free perhaps to appeal the ruling of the court since I understand the court will strike the prior. The Court: This court has no choice but to Mr. Wennerholm: I understand. The Court: follow the law as set forth in People versus Cole. Mr. Wennerholm: I understand that, your Honor. The Court: All right, now, so stipulated? Mr. Wennerholm: Yes. The Court: Fine. Mr. Harvey, do you understand what is going on now? The Defendant: Yes, your Honor. The Court: It's kind of complex. A little bit complicated. But let's it looks like the attorneys have done a great deal of work in arriving at this final figure of eight years and eight months. Do you understand that? The Defendant: Yes, your Honor. The Court: That's what you are going to get in the state prison. The Defendant: Yes. The Court: With, of course, credit for time served. The Defendant: Yes."
Judgment was thereafter entered accordingly.
The People have appealed according to the understanding of the plea bargain. They contend only that People v. Cole (1979) 94 Cal. App.3d *137 854 [155 Cal. Rptr. 892], relied upon by the trial court in reducing the "final figure" to eight years and eight months, does not correctly state the law.
The defendant of Cole, and Harvey of the case at bench, were similarly situated. Each was on parole from a prison term on a prior conviction when he was arrested for a subsequent offense, each was in county jail custody awaiting trial and judgment on the subsequent offense and each, for reasons of law enforcement expediency was independently held in the same county jail custody during that period, for violation of parole under his earlier conviction. In that sense neither had served (instead, each was serving) a prior prison term for a felony.
(1) Penal Code section 667.5 states that the trial court "shall impose a one-year term for each prior separate prison term served for any felony...." In Cole the court, stating a "`prior separate prison term' is defined in section 667.5, subdivision (g), as `a continuous completed period of prison incarceration'" (italics added), held that Cole not having served a prior "`separate prison term,'" his prior conviction "may not be used to enhance defendant's sentence." (94 Cal. App.3d 854, 866.)
Cole's interpretation of Penal Code section 667.5 has since been rejected by People v. Mathews (1980) 102 Cal. App.3d 704, 711-712 [162 Cal. Rptr. 615], and People v. Espinoza (1979) 99 Cal. App.3d 59, 72-73 [159 Cal. Rptr. 894]. And Harvey here concedes that these "subsequent cases seem to clearly indicate that the trial court herein was not required to strike the prior for enhancement purposes, ..." We hold that the trial court was not bound to "follow the law as set forth in People versus Cole." The rule of Mathews and Espinoza should have been applied.
But yet another issue appears.
As pointed out, the plea bargain contemplated, as then appeared to be the law, that Harvey would be subject to imposition of consecutive "great bodily injury" enhancements (Pen. Code, § 12022.7) of the sentences under counts II and IV. Those counts, it will be remembered, charged Penal Code section 217 assaults by means of force likely to produce great bodily injury with intent to commit murder.
(2) Two days before Harvey's sentencing the state's Supreme Court decided People v. Harvey (1977) 25 Cal.3d 754 [159 Cal. Rptr. 696, *138 602 P.2d 396] (the sameness of names is coincidental). Harvey discerned, and held (p. 761), that "the evident legislative intent ... was to allow [great bodily injury] enhancement of [a] consecutive offense only in certain limited situations," not including section 217 assaults by means of force likely to produce great bodily injury with intent to commit murder. Under Harvey it would appear that one of the two instant Penal Code section 12022.7 enhancements should be stricken.
Two related problems arise. We consider the first of them.
Following the Supreme Court's decision in Harvey, and obviously as sort of a response thereto, the Legislature by rare unanimous votes of both houses amended Penal Code section 1170.1, subdivision (a), to read in part as follows: "The subordinate term for each consecutive offense which is a `violent felony' as defined in subdivision (c) of Section 667.5, including those offenses described in paragraph (8) of subdivision (c) of Section 667.5, shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of any enhancements imposed pursuant to Section 12022, 12022.5 or 12022.7." (Italics added.)
It will be seen that the amendment, if here applicable, mandated implementation of the consecutive "great bodily injury" enhancements of Harvey's sentences under counts II and IV. And the mandate was accented by section 1170.1's amendatory act which provided: "This act is intended to clarify and reemphasize what has been the legislative intent since July 1, 1977." (Italics added.)
The Attorney General insists that we are obliged to give expression to the declared retroactive legislative intent, and not to the holding of People v. Harvey.
This intermediate court of review thus finds itself directed by the Legislature to affirm Harvey's consecutive great bodily injury sentence enhancement, and by the Supreme Court to set it aside. (3) The unpleasant quandary, we think, is resolved by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937]: "The decisions of this court are binding upon and must be followed by all the state courts of California." (4) And we note the long-existent rule that: "The subsequent legislation interpreting the statute construed, does not change the meaning; it merely supplies an *139 indication of the legislative intent which may be considered together with other factors in arriving at the true intent existing at the time the legislation was enacted." (Stockton Sav. & Loan Bank v. Massanet (1941) 18 Cal.2d 200, 204 [114 P.2d 592]; and see Eu v. Chacon (1976) 16 Cal.3d 465, 470 [128 Cal. Rptr. 1, 546 P.2d 289]; West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 610 [86 Cal. Rptr. 793, 469 P.2d 665].) In our opinion, if the holding of Harvey is to be changed, it must under the law be done by the court which authored it.
The second of our instant problems assumes, arguendo, that Harvey would ordinarily be applicable. But here there is a plea bargain under which, unaware of the rule of Harvey, Harvey agreed to the application of both enhancements. The question is whether, under such circumstances, Harvey must be held to his bargain.
There is decisional authority holding: "It seems reasonable and just, at least where no public policy, or statutory or decisional or constitutional principle otherwise directs, that the accused also be held to his agreement." (In re Troglin (1975) 51 Cal. App.3d 434, 438 [124 Cal. Rptr. 234].) But it has also been held: "We know of no rule of law which enables a court, following a negotiated plea, to impose a sentence in excess of the maximum allowable for the plea entered.' (In re Stanley (1976) 62 Cal. App.3d 71, 77 [131 Cal. Rptr. 608].)
(5) We are of the opinion, and hold, that in computing one's sentence under a plea bargain, even though agreed to by the parties, the court may not give effect to an enhancement unauthorized by law. Such a holding is found to be required by In re Stanley, supra, and consistent with In re Troglin, supra, which holds an accused to his plea bargain where not contrary to some "decisional" or other compelling principle.
It follows that a Penal Code section 667.5 enhancement of one year must be added to Harvey's sentence, while under Harvey the erroneously added Penal Code section 12022.7 enhancement of one year (one-third of three) should be deducted therefrom. These offsetting items cancel each other with the result that Harvey's total sentences were proper under his plea bargain. The judgment will therefore be affirmed.
We are unpersuaded that the cause should be remanded to the superior court for resolution, under Penal Code section 1170.1, subdivision (g), whether there were "circumstances in mitigation" of the principal *140 and remaining section 12022.7 enhancement. We construe the plea bargain that there be such an enhancement, as in the nature of a stipulation that there were no such mitigating circumstances. (See People v. West (1970) 3 Cal.3d 595, 612-613 [91 Cal. Rptr. 385, 477 P.2d 409].)
The judgment is affirmed.
Newsom, J., and Grodin, J., concurred.
Appellant's petition for a hearing by the Supreme Court was denied January 28, 1981.
| {
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Filed 6/19/17 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CRST, INC. et al., B280270
Petitioners, (Los Angeles County
Super. Ct. No. MC025288)
v.
THE SUPERIOR COURT OF ORDER MODIFYING
LOS ANGELES COUNTY, OPINION
Respondent;
[NO CHANGE IN
MATTHEW JOHN LENNIG et al., JUDGMENT]
Real Party in Interest.
THE COURT:*
It is ordered that the opinion filed herein on May 26, 2017 be
modified as follows:
On page 21, lines 7 and 8, delete the sentence “According to
Davis, on one occasion, Contreras was cited for failing to wear a seat
belt.”
On page 28, lines 12 and 13, delete the phrase “for failing to wear
a seat belt”
On page 28, lines 17 and 18, delete the phrase “for failing to wear
a seat belt”
On page 28, line 20, delete “seatbelt” and substitute “seatbelt-
related”
On page 28, line 23, delete “would” and substitute “or a seatbelt-
related violation could”
The modification does not change the judgment.
_________________________________________________________________
*WILLHITE, Acting P. J., MANELLA, J. COLLINS, J.
2
Filed 5/26/17 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CRST, INC., et al., B280270
Petitioners, (Los Angeles County
Super. Ct. No. MC025288)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
MATTHEW JOHN LENNIG et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Bryan C.
Yep, Judge. Petition granted.
Bassl, Edlin, Huie & Blum, Fred M. Blum, Michael E.
Gallagher and Lisa M. Stevenson; Greines, Martin, Stein &
Richland, Robert A. Olson, Cynthia E. Tobisman and Alan
Diamond; Yoka & Smith, Christopher E. Faenza and
Benjamin A. Davis for Petitioners.
Parris Law Firm, R. Rex Parris, Bruce L. Schechter
and Khail A. Parris; Grignon Law Firm, Margaret M.
Grignon and Anne M. Grignon for Real Parties In Interest.
___________________________________________
This case arises from a vehicular accident in which a
freightliner driven by petitioners‟ employee struck a vehicle,
causing serious injuries to the passengers, real parties in
interest Matthew and Michael Lennig. The Lennigs brought
negligence claims against the employee and petitioners and
sought punitive damages. After admitting vicarious liability
for any negligence by their employee, petitioners sought
summary adjudication on claims against them for negligent
hiring and entrustment, contending that under Diaz v.
Carcamo (2011) 51 Cal.4th 1148 (Diaz), their
acknowledgment of vicarious liability barred such claims.
Additionally, both petitioners and the employee sought
summary adjudication on the requests for punitive damages.
The trial court granted summary adjudication in favor of the
employee as to the request for punitive damages against
him, but denied petitioners‟ motion for summary
adjudication in its entirety.
Petitioners sought writ relief, challenging the trial
court‟s denial of summary adjudication only as to the
Lennigs‟ requests for punitive damages. We conclude that
petitioners‟ admission of vicarious liability does not bar
2
recovery of punitive damages, but further conclude there are
no triable issues of fact which, if resolved in the Lennigs‟
favor, could subject petitioners to punitive damages.
Accordingly, we grant the petition for writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, Hector Contreras was employed as a truck
driver by petitioners CRST, Inc., CRST Expedited, Inc.,
CRST Van Expedited, Inc., and CRST Lincoln Sales, Inc.
(CRST). On July 7, 2014, he drove a CRST freightliner on
the Interstate 14 freeway. As he passed through a
construction area known as the Red Rock Canyon Bridge
project, he collided with a car containing Matthew and
Michael Lennig. Following the accident, CRST terminated
Contreras.
In March 2015, the Lennigs initiated the underlying
personal action. Their third amended complaint (TAC), filed
July 5, 2016, contained claims for negligence and loss of
consortium against Contreras, CRST, and other defendants.
Of those claims, only the following are pertinent here: the
first cause of action against Contreras and CRST for
negligent operation of a motor vehicle; the fourth cause of
action against CRST for negligent hiring, supervision, and
retention; the fifth cause of action against Contreras for
negligent infliction of emotional distress; and the seventh
3
cause of action against CRST for negligent entrustment.1
Each claim included a request for punitive damages.
Contreras sought summary adjudication on the
request for punitive damages accompanying the first and
fifth causes of action, and CRST separately sought summary
adjudication on the fourth and seventh causes of action and
the requests for punitive damages accompanying the first,
fourth, and seventh causes of action. Contreras contended
the requests for punitive damages against him failed for
want of evidence to support the TAC‟s key allegation
regarding those requests, namely, that he was intoxicated
when the collision occurred. CRST maintained that under
Diaz, the fourth and seventh causes of action should be
dismissed because CRST admitted vicarious liability for any
negligent driving by Contreras. CRST also challenged the
requests for punitive damages, arguing that its conduct did
not meet the standards for an award of punitive damages, as
set forth in Civil Code section 3294.2
The trial court granted summary adjudication in
Contreras‟s favor, concluding that no triable issues existed
whether he was under the influence of drugs or alcohol at
the time of the collision, but denied CRST‟s motion for
summary adjudication in its entirety. On January 23, 2017,
CRST filed its petition for writ of mandate, prohibition, or
1 The first, fourth, and seventh causes of action were
asserted by Matthew and Michael Lennig, and the fifth cause of
action was asserted by Michael Lennig.
2 All further statutory citations are to the Civil Code.
4
other relief, challenging the trial court‟s denial of summary
adjudication only as to the requests for punitive damages.
We issued an alternative writ of mandate directing the
court‟s and parties‟ attention to Diaz, and imposed a
temporary stay.
DISCUSSION
CRST contends the trial court erred in denying
summary adjudication on the requests for punitive damages
against it accompanying the first, fourth, and seventh
causes of action. CRST asserts (1) that Diaz bars the
recovery of punitive damages in view of CRST‟s acceptance
of vicarious liability, and (2) that there are no triable issues
regarding the propriety of an award of punitive damages
under section 3294. As explained below, we reject CRST‟s
contention regarding Diaz, but agree with its second
contention.
A. Standard of Review
“An order denying a motion for summary adjudication
may be reviewed by way of a petition for writ of mandate.
[Citation.] Where the trial court‟s denial of a motion for
summary judgment will result in trial on non-actionable
claims, a writ of mandate will issue. [Citations.] Likewise,
a writ of mandate may issue to prevent trial of non-
actionable claims after the erroneous denial of a motion for
summary adjudication. [¶] Since a motion for summary
judgment or summary adjudication „involves pure matters of
law,‟ we review a ruling on the motion de novo to determine
5
whether the moving and opposing papers show a triable
issue of material fact. [Citations.] Thus, the appellate court
need not defer to the trial court‟s decision. „“We are not
bound by the trial court‟s stated reasons, if any, supporting
its ruling; we review the ruling, not its rationale.”‟3
[Citations.]” (Travelers Casualty & Surety Co. v. Superior
Court (1998) 63 Cal.App.4th 1440, 1450.)
B. Governing Principles
Because the key issues before us concern the extent
to which CRST‟s admission of vicarious liability shields it
from an award of punitive damages, we examine the
principles governing an employer‟s vicarious liability for
damages. Under the doctrine of respondeat superior, “an
employer is vicariously liable for the torts of its employees
committed within the scope of the employment.” (Lisa M.
v. Henry Mayo Newhall Memorial Hospital (1995) 12
Cal.4th 291, 296.) The employer is thus liable for the
compensatory damages attributable to the employee‟s
misconduct, even when the employer is “innocent” of fault.
(Miller v. Stouffer (1992) 9 Cal.App.4th 70, 84, italics
3 The parties asserted numerous objections to each other‟s
evidentiary showing. Because the trial court denied some
objections but did not expressly rule on the remaining ones, we
presume all to have been overruled. (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 534 (Reid).) As neither side has resurrected their
objections before us, we examine the trial court‟s rulings in light
of the entire body of evidence submitted in connection with
CRST‟s motion for summary adjudication.
6
omitted.) The rationale for the doctrine closely parallels
the justification for imposing strict products liability on
nonnegligent product manufacturers. (Far West Financial
Corp. v. D & S Co. (1988) 46 Cal.3d 796, 813, fn. 13.) As
our Supreme Court has explained, “„[t]he losses caused by
the torts of employees, which as a practical matter are sure
to occur in the conduct of the employer‟s enterprise, are
placed upon that enterprise itself, as a required cost of
doing business.‟” (Ibid., quoting Prosser & Keeton on Torts
(1984) § 69, p. 500 [fns. omitted].)
The special features of vicarious liability determine
the employer‟s share of liability for compensatory damages
under the comparative fault system, which allocates
liability for tort damages in direct proportion to fault. 4
(Diaz, supra, 51 Cal.4th at pp. 1152, 1156.) As noted
above, the respondeat superior doctrine attributes liability
for compensatory damages to an employer, independent of
4 The comparative fault doctrine “is designed to permit the
trier of fact to consider all relevant criteria in apportioning
liability. The doctrine „is a flexible, commonsense concept, under
which a jury properly may consider and evaluate the relative
responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or
other theories of responsibility), in order to arrive at an “equitable
apportionment or allocation of loss.”‟ [Citation.]” (Rosh v. Cave
Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1233, quoting
Knight v. Jewett (1992) 3 Cal.4th 296, 314.) A defendant has the
burden of showing that some nonzero percentage of fault is
properly attributed to the plaintiff or an individual other than the
defendant. (See Sparks v. Owens-Illinois, Inc. (1995) 32
Cal.App.4th 461, 476.)
7
any fault on the employer‟s part. Accordingly, within the
comparative fault system, when an employer is liable
solely on a theory of respondeat superior, “the employer‟s
share of liability for the plaintiff”s damages corresponds to
the share of fault that the jury allocates to the employee.”
(Id. at p. 1157.)
In contrast, under the respondeat superior doctrine,
the employer is not liable for punitive damages absent
fault or misconduct on the employer‟s part. (College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 724,
fn. 11 (College Hospital); Weeks v. Baker & Mckenzie (1998)
63 Cal.App.4th 1128, 1155 (Weeks); Merlo v. Standard Life
& Acc. Ins. Co. (1976) 59 Cal.App.3d 8, 18 (Merlo).) Unlike
compensatory damages, which seek to make the plaintiff
whole, punitive damages are intended to deter general
types of misconduct. (College Hospital, supra, 8 Cal.4th at
p. 712.) California courts have long held that punitive
damages may, under appropriate circumstances, be
recoverable for nondeliberate or unintentional torts,
including actions in which the theory of recovery for
compensatory damages from the defendant is based on
strict products liability (Grimshaw v. Ford Motor Co.
(1981) 119 Cal.App.3d 757, 810 (Grimshaw)) or vicarious
liability (see Merlo, supra, 59 Cal.App.3d at p. 18).
Accordingly, upon a suitable demonstration of employer
misconduct, a vicariously liable employer may be subject to
an award of punitive damages when an employee was
negligent. (Farvour v. Geltis (1949) 91 Cal.App.2d 603,
8
604-606; see Nolin v. National Convenience Stores, Inc.
(1979) 95 Cal.App.3d 279, 284-289.)
The standard of misconduct for the recovery of
punitive damages from a vicariously liable employer has
been refined and modified. (See Weeks, supra, 63
Cal.App.4th at pp. 1148-1149.) Prior to the enactment of
the current version of section 3294, California courts
followed the rule stated in the Restatement of Torts section
909, which permits the imposition of punitive damages on
an employer in several circumstances, including when
“„“the [employee] was unfit and the [employer] was reckless
in employing him . . . .”‟”5 (Weeks, supra, 63 Cal.App.4th at
pp. 1148-1149; Merlo, supra, 59 Cal.App.3d at p. 18; see
College Hospital, supra, 8 Cal.4th at p. 723.)
The requisite employer misconduct is now specified
in subdivision (b) of section 3294, which states that an
employer may be liable for punitive damages when “„the
employer had advance knowledge of the unfitness of the
employee and employed him or her with a conscious
disregard of the rights or safety of others or authorized or
ratified the wrongful conduct for which the damages are
5 Restatement of Torts section 909 states: “Punitive damages
can properly be awarded against a master or other principal
because of an act by an agent if, but only if, [¶] (a) the principal
authorized the doing and the manner of the act, or [¶] (b) the
agent was unfit and the principal was reckless in employing him,
or [¶] (c) the agent was employed in a managerial capacity and
was acting in the scope of employment, or [¶] (d) the employer or
a manager of the employer ratified or approved the act.”
9
awarded or was personally guilty of oppression, fraud, or
malice . . . .‟” (Weeks, supra, 63 Cal.App.4th at p. 1148.)
The statute further provides that “„[w]ith respect to a
corporate employer, the advance knowledge and conscious
disregard, authorization, ratification or act of oppression,
fraud, or malice must be on the part of an officer, director,
or managing agent of the corporation.‟” (Ibid.) An award
of punitive damages under the statute must be supported
by findings made on clear and convincing evidence.
(Barton v. Alexander Hamilton Life Ins. Co. of America
(2003) 110 Cal.App.4th 1640, 1644.)
C. Diaz does not bar the recovery of punitive damages
We begin with the issue to which we directed the
parties‟ attention, viz., whether under Diaz, CRST‟s
admission of vicarious liability precludes the recovery of
punitive damages against it.6 Because the material facts
here are undisputed, the key issues before us concern the
application of Diaz to section 3294, subdivision (b).
In Diaz, the Supreme Court‟s focus was on a rule set
forth in Armenta v. Churchill (1954) 42 Cal.2d 448
(Armenta), which was decided before the adoption of the
comparative fault system. Armenta involved a wrongful
death action in which the plaintiff sought compensatory
6 Petitioners do not challenge the trial court‟s denial of
summary adjudication on the claims for negligent hiring and
entrustment. Application of Diaz to those claims is
therefore not before us.
10
damages from the driver of a dump truck and its owner,
alleging that her husband died when the dump truck
backed over him. (Id. at p. 451.) The plaintiff asserted a
claim for negligence against the driver and a claim for
negligent entrustment against the owner based on
allegations that she knew the driver had a poor driving
record. (Id. at p. 456.) After the defendants admitted that
the driver was acting within the scope of his employment
at the time of the accident, the trial court barred the
plaintiff from introducing evidence at trial regarding the
owner‟s knowledge of the driver‟s driving record. (Ibid.)
Affirming that ruling, our Supreme Court explained that
the complaint‟s allegations merely asserted two alternative
theories -- namely, negligence and vicarious liability --
under which the plaintiff “sought to impose upon [the
owner] the same liability as might be imposed upon [the
driver].” (Id. at p. 457.) Because the owner‟s admission of
vicarious liability established her liability for the driver‟s
tort, “there was no material issue remaining to which the
offered evidence could be legitimately directed.” (Id. at
pp. 457-458.)
Diaz examined whether the Armenta rule survived
adoption of the comparative fault system. In Diaz, the
plaintiff was injured when the car she was driving collided
with another passenger vehicle and a commercial truck.
(Diaz, supra, 51 Cal.4th at pp. 1152-1153.) In addition to
asserting negligence claims against the drivers of the
passenger vehicle and truck, she alleged that the truck‟s
owner was vicariously liable for the driver‟s negligence and
11
directly liable for its own negligence in hiring and retaining
him. (Ibid.) Notwithstanding Armenta, the trial court
permitted the plaintiff to introduce evidence of the driver‟s
poor employment and driving record, even though the owner
admitted vicarious liability for any negligence by the driver.
(Id. at p. 1153.) A jury returned verdicts in the plaintiff‟s
favor, including her claims against the owner for negligent
hiring and retention, and allocated different shares of
liability for compensatory damages among the three
defendants. (Ibid.) The Court of Appeal affirmed the
judgment, concluding that the adoption of the comparative
fault system vitiated Armenta. (Id. at p. 1154.)
Reversing the judgment of the Court of Appeal, our
Supreme Court reaffirmed Armenta. (Diaz, supra, 51
Cal.4th at pp. 1154-1161.) The court determined that within
the context of the comparative fault system, when the
plaintiff alleges that an employee engaged in negligent
driving, and seeks damages from the employer on the basis
of vicarious liability and claims of negligent hiring,
retention, or entrustment, the employer‟s share of liability is
necessarily coextensive with that of the employee. (Ibid.)
Accordingly, “[i]f . . . an employer offers to admit vicarious
liability for its employee‟s negligent driving, then claims
against the employer based on theories of negligent
entrustment, hiring, or retention become superfluous. To
allow such claims in that situation would subject the
employer to a share of fault in addition to the share of fault
assigned to the employee, for which the employer has
already accepted liability.” (Id. at p. 1160.) The court thus
12
restated and endorsed the Armenta rule, which it
characterized as “bar[ring]” a claim for negligent
entrustment when the employer admits vicarious liability
for an employee‟s negligent conduct. (Id. at p. 1158.)
As noted, petitioners have not challenged the trial
court‟s denial of summary adjudication on the claims for
negligent entrustment and retention. The issue before us is
whether, under Diaz, petitioners‟ admission of vicarious
liability bars the recovery of punitive damages. We conclude
it does not. Diaz and Armenta establish that when an
employer admits vicarious liability, the plaintiff may seek
compensatory damages from the employer only on a theory
of vicarious liability. Because neither Diaz nor Armenta
addressed an action in which punitive damages were sought,
in each case the employer‟s admission of vicarious liability
necessarily rendered superfluous any allegations or evidence
bearing on the employer‟s own misconduct.
That is not the case, however, when the plaintiff seeks
compensatory damages from the employer on a theory of
vicarious liability, and also requests punitive damages from
the employer. As explained above (see pt. B. of the
Discussion, ante), under the theory of vicarious liability, the
employer may be subject to punitive damages upon a proper
showing of misconduct, the standards for which are specified
in section 3294, subdivision (b). Allegations in the
complaint relating to that misconduct do not constitute a
separate cause of action, but attach to the claim for recovery
13
against the employer under the theory of vicarious liability. 7
(See Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 789,
fn. 2. [“[T]here is no separate or independent cause of action
for punitive damages”]; McLaughlin v. National Union Fire
Ins. Co. (1994) 23 Cal.App.4th 1132, 1163 [“In California
there is no separate cause of action for punitive damages”].)
Thus, when an employer such as CRST admits vicarious
liability, neither the complaint‟s allegations of employer
misconduct relating to the recovery of punitive damages nor
the evidence supporting those allegations are superfluous.
Nothing in Diaz or Armenta suggests otherwise.
CRST directs our attention to Ferrer v. Okbamicael
(Colo. 2017) 390 P.3d 836, 847-848, in which the Colorado
Supreme Court adopted a rule similar to that stated in Diaz
and Armenta, and further concluded that under Colorado
law, the rule barred the recovery of punitive damages from
the employer admitting vicarious liability. Ferrer is
distinguishable, however, because the Colorado statute
governing punitive damages, unlike section 3294, contains
no provision authorizing an award of punitive damages
7 As our Supreme Court has explained, the pleading
requirements for such a claim are minimal: “„In order to state a
cause of action against defendant for a wrong committed by his
servant, the ultimate fact necessary to be alleged is that the
wrongful act was in legal effect committed by defendant. This
may be alleged either by alleging that defendant by his servant
committed the act, or, without noticing the servant, by alleging
that defendant committed the act.‟” (Golceff v. Sugarman (1950)
36 Cal.2d 152, 154, quoting 57 C.J.S. 386.)
14
against an employer responsible for compensatory damages
on a theory of vicarious liability.8
CRST also suggests that extending the Diaz-Armenta
rule to bar the recovery of punitive damages from an
employer admitting vicarious liability would promote
beneficial public policies, arguing that such a rule would
encourage employers to admit vicarious liability. We
disagree. In Grimshaw, the court concluded that
considerations of public policy support the recovery of
punitive damages from manufacturers of defective products
under a theory of strict products liability, which rests on a
justification similar to that underlying the doctrine of
respondeat superior. (Grimshaw, supra, 119 Cal.App.3d at
p. 810.) Absent such a rule, the court stated, “in commerce-
related torts, the manufacturer may find it more profitable
to treat compensatory damages as part of the cost of doing
business rather than to remedy the [product‟s] defect.”
(Ibid.) That rationale applies here as well. If the Diaz-
Armenta rule were extended in the manner CRST suggests,
employers indifferent to public safety might find it more
8 Colorado Revised Statutes Annotated section 13-21-
102(1)(a) provides: “In all civil actions in which damages are
assessed by a jury for a wrong done to the person or to personal or
real property, and the injury complained of is attended by
circumstances of fraud, malice, or willful and wanton conduct, the
jury, in addition to the actual damages sustained by such party,
may award him reasonable exemplary damages. The amount of
such reasonable exemplary damages shall not exceed an amount
which is equal to the amount of the actual damages awarded to
the injured party.”
15
profitable to admit vicarious liability when sued, and treat
any resulting compensatory damages as part of the cost of
doing business, rather than remedy practices that enable
them to employ unsafe drivers. In sum, we conclude CRST‟s
admission of vicarious liability did not bar the Lennigs‟
requests for punitive damages.
D. There are no triable issues under section 3294,
subdivision (b)
We turn to CRST‟s remaining contention, namely, that
it is not properly subject to punitive damages under the
standards set forth in section 3294, subdivision (b).
1. TAC’s Allegations
In assessing the trial court‟s ruling, we look first to the
allegations in the TAC, which frame the issues pertinent to
CRST‟s motion for summary adjudication. (Bostrom v.
County of San Bernardino (1995) 35 Cal.App.4th 1654,
1662.) However, we disregard the TAC‟s allegations that
Contreras was potentially intoxicated at the time of the
accident, as the trial court determined there was insufficient
evidence to support those allegations in granting Contreras‟s
motion for summary adjudication. Although the Lennigs, in
opposing CRST‟s petition, suggest that the accident was due
to Contreras‟s intoxication, they did not seek review of the
ruling on the motion by Contreras, who -- though nominally
a real party in interest in this proceeding -- has not
appeared or filed a brief. We therefore decline to examine
the trial court‟s determination regarding Contreras‟s lack of
16
intoxication. (Transworld Systems, Inc. v. County of
Sonoma (2000) 78 Cal.App.4th 713, 716, fn. 4 [in appeal
from grant of summary judgment, respondents‟ failure to
take cross-appeal from a related unfavorable ruling forfeited
its challenge to that ruling]; Campbell v. Superior Court
(2005) 132 Cal.App.4th 904, 922 [in writ petition proceeding
regarding specific ruling, real party‟s failure to seek review
of related unfavorable ruling precluded attack on that
ruling].)
The TAC alleges that CRST communicates to its
employees and the public that “its single greatest priority” is
“the safety of its drivers and the public.” CRST has thus
implemented certain safety policies, including background
checks of prospective employees. To discharge the duty of
conducting those checks -- which the TAC characterizes as
nondelegable -- CRST hired a third party company to
investigate prospective employees.
According to the TAC, the third party company failed
to conduct an adequate check of Contreras‟s criminal record.
Furthermore, although it discovered that Contreras had
suffered a conviction for a misdemeanor or felony within
seven years of his employment application, CRST did not
exercise due diligence in investigating the conviction. In
addition, in violation of a CRST policy mandated by federal
law, CRST allegedly failed to make inquiries to Contreras‟s
former employers regarding his drug and alcohol use. Had
CRST done so, it would have discovered that Contreras had
a criminal history, including multiple convictions for the
possession and use of illegal substances, a conviction for
17
driving under the influence of an intoxicating substance, and
a conviction for grand theft of an automobile.
The TAC further alleges that under federal
regulations, employers must test a specified minimum
percentage of drivers per year for the use of drugs and
alcohol. However, CRST failed to implement a random drug
testing policy.
According to the TAC, on December 5, 2013, CRST
hired Contreras as a driver. Between that date and the July
7, 2014 accident involving the Lennigs, Contreras caused
four preventable accidents, two of which occurred between
June 26 and July 3, 2014. Marge Davis and Dale Stanek --
whom the TAC characterizes as “managing agents” for
CRST -- responded to the accidents by requiring Contreras
to take a driving course.
Within the two-month period preceding the July 7,
2014 accident involving the Lennigs, Richard Oliver III,
Contreras‟s co-driver, allegedly told Davis that police officers
had stopped Contreras for tailgating and speeding in a
construction zone. Although CRST has a policy of
terminating drivers who speed or compelling them to
undergo driver education, Davis took no action against
Contreras.
Some or all of CRST‟s trucks have a “Qualcomm”
system, which permits CRST‟s dispatchers to communicate
with the trucks. As early as June 25, 2014, Davis allegedly
knew that the Qualcomm system in Contreras‟s truck was
not functioning, but she permitted Contreras to continue
driving the truck.
18
Under CRST‟s policies, probationary drivers such as
Contreras must be accompanied by a co-driver.
Commencing on July 3, 2014, Davis allowed Contreras to
operate his truck alone during a 370-mile trip from San
Rafael to Lancaster, and further permitted him to have sole
possession of the truck over the July 4 weekend. According
to the TAC, on July 3, Davis and Stanek received a
notification from an electronic module in the truck that it
was travelling at 99 miles per hour, but took no action. The
following day, the module informed Davis that Contreras
had driven the truck from Lancaster to a lake. Davis did not
contact Contreras regarding his use of the truck.
Finally, the TAC alleges that on July 7, 2014, while
travelling south through the Red Rock Bridge Project
construction area, Contreras‟s truck crossed over into a lane
for northbound traffic, and hit the car containing Matthew
and Michael Lennig.
2. CRST’s Showing
In seeking summary judgment, CRST‟s motion denied
that Davis and Stanek were managing agents within the
meaning of section 3294, subdivision (b). According to
CRST, during the pertinent period, Davis was a fleet
manager responsible for dispatching and tracking trucks,
and Stanek was a safety supervisor responsible for
investigating accidents and resolving safety issues with
drivers.
CRST submitted evidence supporting the following
version of the underlying events: Contreras‟s employment
19
application stated that he had no license suspensions, felony
convictions, or convictions or accidents involving substance
abuse. Under federal regulations, CRST was required to
investigate Contreras‟s driving records and history of drug
and alcohol use for a three-year period preceding his
application. (49 C.F.R. § 391.23 (2016).) The regulations
permitted CRST to hire a third party to conduct the
investigation. In November 2013, a third party company
informed CRST that it found that Contreras had had a valid
driver‟s license since 2005, that his driving record showed no
traffic violations or convictions after the license was issued,
and that he had no record of a criminal conviction within the
previous seven years.
During the pertinent period, CRST complied with all
federal regulations regarding the testing of its drivers for
drug and alcohol use. Before hiring Contreras, CRST
required him to submit to drug and alcohol screening. He
tested negatively for drugs and alcohol.
Under CRST‟s policies, after a driver completes a 28-
day training course and acquires certain certifications, the
driver is classified as a “co-driver.” Ordinarily, co-drivers
are paired into two-person teams, but they are permitted to
drive alone unless assigned to a “high valued freight load.”
After CRST hired Contreras, he successfully completed his
training in January 2014 and was placed on a co-driver
team.
Prior to the July 7, 2014 accident involving the
Lennigs, Contreras was involved in two minor preventable
accidents. Those accidents occurred in January 2014, on
20
occasions when he backed up his truck. As a result of the
accidents, CRST required Contreras to complete additional
driver training.
Davis testified that prior to the July 7, 2014 accident,
she received no complaint from Oliver that Contreras had
been stopped for driving at an excessive speed through a
construction area. According to Davis, on one occasion,
Contreras was cited for failing to wear a seat belt. She
further testified that had police officers stopped Contreras
for speeding, they would have issued a speeding citation to
him, and CRST would have terminated him.
From June 25, 2014 to the date of the accident
involving the Lennigs, Contreras‟s truck had a working
Qualcomm unit. On July 3, 2014, Contreras used the
Qualcomm unit to inform CRST that he would be on “home
time” until July 7, and he retained possession of a CRST
tractor during that period. CRST submitted evidence that
on July 3, the electronic module in Contreras‟s truck did not
indicate that it was travelling at 99 miles per hour; rather,
the annotation “MPH 99” in the truck‟s “[l]oad [h]istory” for
that date was a default code that the load would not be
delivered on time.9
On July 7, 2014, Contreras was driving to the CRST
Riverside Terminal in the CRST tractor when he collided
with the Lennigs‟ car. At that time, he was acting within
9 CRST also submitted evidence that following the July 7,
2014 accident, CRST complied with federal rules regarding post-
accident testing of drivers.
21
the scope and course of his employment. Following the
accident, CRST complied with federal rules regarding post-
accident testing of drivers.
3. The Lennigs’ Showing
In opposing summary adjudication, the Lennigs did
not dispute numerous items in CRST‟s separate statement
of undisputed facts, including that CRST complied with
federal rules regarding drug and alcohol testing, and that in
hiring Contreras, CRST complied with federal regulations
regarding pre-employment screening.10 However, they
offered testimony from Charles Haffenden (designated by
CRST as its “person most knowledgeable”) that in or after
2011, CRST, like all other freight carriers, lowered its
standards for hiring truck drivers.
According to the Lennigs‟ showing, from 1981 to 1989,
the City of Los Angeles employed Contreras as a garbage
truck driver. He was fired from that position because he
10 The Lennigs attempted to challenge some items in CRST‟s
separate statement of undisputed facts by asserting evidentiary
objections to CRST‟s showing. Because the trial court did not rule
on the objections, they were effectively overruled. (Reid, supra,
50 Cal.4th at p. 534) As the Lennigs do not challenge those
evidentiary rulings before us, we view the pertinent items in
CRST‟s separate statement as undisputed for purposes of our
analysis. (Wall Street Network, Ltd. v. New York Times Co.
(2008) 164 Cal.App.4th 1171, 1181 [appellant‟s failure to address
trial court‟s evidentiary rulings in connection with summary
judgment forfeited contentions of error on appeal regarding
rulings].)
22
began to use drugs heavily. From May 1995 to February
2007, Contreras suffer convictions for numerous offenses,
including possession of illegal substances and paraphernalia
and driving under the influence of an intoxicating substance.
In applying for employment with CRST, Contreras falsely
denied the existence of his criminal record, traffic offenses,
and history of substance abuse.
The Lennigs submitted evidence that CRST
contravened its safety policies in permitting Contreras to
drive their trucks. CRST allowed Contreras to drive his
truck without a co-driver, even though his personnel record
contained the notation, “co-drive until 11/28/14.”
Furthermore, CRST violated its policy that a driver should
be terminated for a serious traffic violation or for causing six
preventable accidents within an eight-month period.
According to the Lennigs‟ showing, approximately two
weeks before the July 7, 2014 accident involving the
Lennigs, Contreras drove through a construction zone,
accompanied by Oliver, and was issued a ticket. Oliver
testified that although Contreras was tailgating and
speeding, the officer issued a ticket only for a seatbelt
violation.11 Oliver reported the incident to Davis, who took
no action against Contreras. Additionally, the Lennigs
maintained the existence of another speeding incident,
contending that the truck‟s “load history,” as generated by
11 According to Oliver, the officer saw Oliver transfer from the
passenger seat to the truck‟s sleeper unit while the truck was
moving, and issued a citation to Contreras for Oliver‟s failure to
wear a seat belt.
23
the Qualcomm unit, showed on its face that the truck
travelled at 99 miles per hour on July 3, 2014.12
The Lennigs further asserted that during the eight
months preceding the July 7, 2014 accident, Contreras was
involved in four preventable accidents. Aside from the two
accidents admitted by CRST, Oliver testified that in the
course of a road trip during which he acted as Contreras‟s
co-driver, Contreras caused two other accidents, although
Oliver did not describe them.13 CRST‟s records for
Contreras contain the following remarks following the July
7, 2014, accident: “[Contreras] was on hometime and drove
the truck unauthorized and got into a accident. His accident
record shows prior accident[s] .” The records list four prior
accidents, although one is accompanied by the annotation,
“hit by other vehicle.”
In an effort to show that Stanek was aware that
Contreras was an unsafe driver prior to the July 7, 2014
accident, the Lennigs offered evidence that following the
accident, Davis and Stanek discussed Contreras in e-mails.
In an e-mail dated July 21, 2014, Stanek told Davis that he
was attempting to obtain a copy of the police report
12 Notwithstanding the TAC‟s allegation to the contrary, the
Lennigs acknowledged that from June 25 to July 7, 2014,
Contreras‟s truck had an operational Qualcomm unit.
13 In addition to this showing, the Lennigs offered evidence
regarding facts not directly relevant to Contreras‟s driving,
including that he was homeless when hired and at the time of the
July 7, 2014 accident, and that he used marijuana shortly before
his deposition in the underlying action.
24
regarding the accident through an adjuster, stating,
“Hector‟s record is questionable. If the report comes back
unfavorable, this will be his third accident in six months.”
Later, on August 6, 2014, Stanek informed Davis that he
had not heard from the adjuster, and stated: “As I
mentioned before, Hector has had other accidents. He
seemed unsure who hit who in this accident. Given his
accident record, I feel there is a reasonable chance Hector is
at fault in the last accident.”
The Lennigs also maintained that Davis and Stanek
were managing agents within the meaning of section 3294,
subdivision (b). According to the Lennigs‟ showing, Davis
supervised as many as 100 drivers, oversaw their freight-
related activities, ensured that they maintained their
qualifications and trucks, authorized their “home time” and
truck use, and interacted with safety supervisors such as
Stanek. Contreras and Oliver viewed her as their “boss” or
“immediate supervisor.” When necessary, she terminated
drivers for unsafe driving. Stanek supervised CRST staff
regarding compliance with federal safety regulations and
the prevention of future accidents.
4. Analysis
We conclude that there are no triable issues whether
CRST is properly subject to punitive damages under the
standards specified in section 3294, subdivision (b). As
explained below, although the record does not suggest that
CRST authorized or ratified Contreras‟s misconduct or
“personally” engaged in oppression, fraud, or malice, it
25
raises triable issues whether Davis -- but not Stanek -- “had
advance knowledge of . . . [Contreras‟s] . . . unfitness . . . and
employed him . . . with a conscious disregard of the rights or
safety of others . . . .” (§ 3294, subd. (b).) Nonetheless, there
is no evidence that Davis was a “managing agent,” for
purposes of section 3294, subdivision (b).
a. “Advance Knowledge” and “Conscious
Disregard”
In evaluating the existence of the requisite “advance
knowledge” and “conscious disregard,” our focus is on the
period of Contreras‟s employment by CRST. Although
Contreras had a lengthy record of substance abuse, poor
driving, and criminal activity up to 2007, it is undisputed
that CRST complied with federal regulations in conducting
the pre-employment background check and did not discover
those facts regarding Contreras. We therefore examine
whether CRST acquired knowledge of Contreras‟s unfitness
as a driver after he was hired, yet improperly continued to
employ him.
We assess CRST‟s “advance knowledge” and “conscious
disregard” in light of its policies, which required the
termination of a driver for serious traffic violations or
causing six preventable accidents within an eight-month
period.14 In view of these policies, CRST did not act
14 In making this assessment, we recognize that CRST
allowed Contreras to drive a tractor by himself on July 7, 2014,
even though his personnel file contained the notation “co-drive
until 11/28/14.” However, in view of the unrebutted evidence that
(Fn. continued on the next page.)
26
improperly by retaining Contreras, even though he may
have been involved in as many as four preventable
accidents, because nothing in the record suggests that they
were serious.
Nor did the annotation “MPH 99” in the truck‟s July 3,
2014 load history reasonably show that Contreras was an
unsafe driver. That annotation is located on a document
entitled “Load History Comment Info,” which contains
notations and acronyms, none which are defined. Among
these are the following:
“4475 TRACKING CODE SET TO 0 RS MPH 33 ON 7/02
AT 07:09 . . . [¶]
4475 TRACKING CODE SET TO 0 RS MPH 32 ON 7/02 AT
14:00 . . . [¶]
4475 TRACKING CODE SET TO 0 RS MPH 99 ON 7/03 AT
06:39 . . .”
As the document itself invites only speculation
regarding the meaning of these remarks, the existence of a
triable issue hinges on the evidence regarding their
meaning. Davis testified that in July 2014, CRST had no
method of monitoring the current speed of its trucks.
Instead, CRST tracked a truck‟s “load history,” which
included a reading -- stated in miles per hour -- of the
average speed the truck would have to travel in order to
CRST‟s policies permitted drivers with Contreras‟s qualifications
to drive alone unless assigned to a high-value freight load, we
conclude that Contreras‟s solitary driving creates no material
triable issue absent any triable issues relating to the known
safety of his driving, which we examine below.
27
deliver its load on time. Thus, a reading of 33 miles per
hour in the truck‟s load history meant that at the time of the
reading, the truck was required to travel at that average
speed in order to make a timely delivery. CRST also offered
evidence that its trucks have governors that cut power when
they exceed 65 miles per hour. In opposing summary
adjudication, the Lennigs presented no evidence that the
load history reflected that Contreras‟s truck was travelling
at 99 miles per hour on July 3. Accordingly, the annotation
“MPH 99” cannot reasonably be viewed as evidence that
Contreras was an unsafe driver.
The evidence regarding Contreras‟s traffic citation for
failing to wear a seat belt, however, raises triable material
issues regarding CRST‟s “advance knowledge” and
“conscious disregard.” According to the Lennigs‟ showing, in
mid-June 2014, before the accident involving the Lennigs,
Contreras was issued a citation for failing to wear a seat
belt. According to Oliver, although Contreras was tailgating
and speeding while driving through a construction zone, the
officer issued a ticket only for a seatbelt violation. Oliver
allegedly reported the incident to Davis. Davis denied
hearing any such report from Oliver, but acknowledged that
speeding in a construction zone would support a driver‟s
termination. In our view, Oliver‟s testimony, if credited by a
jury, is sufficient to show that CRST had “advance
knowledge of [Contreras‟s] unfitness . . . and employed him
. . . with a conscious disregard of the rights or safety of
others.” (§ 3294, subd. (b).)
28
b. Managing Agents
Because there is no dispute that CRST is a “corporate
employer,” the remaining issue is whether “the advance
knowledge” and “conscious disregard” was by a “managing
agent of the corporation.” (§ 3294, subd. (b).) Our focus is
on Davis and Stanek, the two employees identified as
potential “managing agents” in the TAC.15
Nothing before us suggests that Stanek had the
requisite “advance knowledge” regarding Contreras‟s lack of
fitness. Although the record shows that Stanek was CRST‟s
safety supervisor, it contains no evidence that Stanek was
aware of Contreras‟s driving history prior to the July 7, 2014
accident. The record shows only that in e-mails dated July
21 and August 6, 2014, Stanek described Contreras‟s driving
record as “questionable” due to two prior accidents. In our
view, that evidence supports no reasonable inference that
Stanek knew of Contreras‟s “unfitness” prior to the July 7,
2014 accident. (See College Hospital, supra, 8 Cal.4th at
pp. 723-724.)
As triable issues exist regarding Davis‟s pre-accident
knowledge of Contreras‟s driving, we examine whether she
was a managing agent. Generally, “principal liability for
punitive damages [does] not depend on employees‟
managerial level, but on the extent to which they exercise
substantial discretionary authority over decisions that
ultimately determine corporate policy.” (White v. Ultramar,
15 Although the Lennigs‟ return also points to Haffenden as a
potential managing agent for CRST, the return identifies no
evidence that he was aware of Contreras‟s driving record before
the July 7, 2014.
29
Inc. (1999) 21 Cal.4th 563, 576-577 (White).) Thus, to
establish that an individual is a managing agent, a plaintiff
seeking punitive damages must show that “the employee
exercised substantial discretionary authority over
significant aspects of a corporation‟s business.” (Id. at
p. 577.) In this context, “corporate policy” refers to “„formal
policies that affect a substantial portion of the company and
that are of the type likely to come to the attention of
corporate leadership.‟” (Roby v. McKesson Corp. (2009) 47
Cal.4th 686, 715; Cruz v. Homebase (2000) 83 Cal.App.4th
160, 167-168 [“„corporate policy‟ is the general principles
which guide a corporation, or rules intended to be followed
consistently over time in corporate operations,” and thus “[a]
„managing agent‟ is one with substantial authority over
decisions that set these general principles and rules”].)
The key inquiry thus concerns the employee‟s
authority to change or establish corporate policy. (Myers v.
Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1437.)
The fact that an employee has a supervisory position with
the power to terminate employees under his or her control
does not, by itself, render the employee a managing agent.
(White, supra, 21 Cal.4th at pp. 576-577; Kelly-Zurian v.
Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 421.) Nor does
the fact that an employee supervises a large number of
employees necessarily establish that status. (Muniz v.
United Parcel Service, Inc. (N.D. Cal. 2010) 731 F.Supp.2d
961, 976 [fact that operations manager was “„in charge of 6
divisions, 23 package centers and approximately 40
managers, 150 supervisors and 4,200 employees‟”
30
insufficient to raise triable issue whether he was managing
agent, absent evidence that he set corporate policy].)
The record discloses no evidence that Davis had the
requisite authority. As a fleet manager, Davis served under
an operations supervisor, and her main responsibility was to
dispatch drivers. Davis testified that she managed a fleet of
drivers, planned and tracked their freight hauling, resolved
their payroll and vacation issues, ensured they maintained
their qualifications, and “deal[t] internally” with customer
services, the safety department, and “upper management.”
She oversaw from 48 to 100 drivers, and was authorized to
terminate drivers for unsafe driving.
Davis further stated that although she was the “first
person in charge of the drivers from a safety standpoint,”
she interacted with the safety department, which placed
“stop[s] on . . . driver[s],” directed them to take defensive
driving courses, and ordered random drug and alcohol
testing. When she received a complaint from a driver that
another driver had been involved in a safety incident, her
responsibility was to report the incident to the safety
department or “HR.” She adjusted the scope of her own
investigation on a case-by-case basis, taking into account the
gravity of any safety violation. She usually handled
“personal issue[s] between one driver and another driver,”
and forwarded “safety issue[s]” to the safety department. In
our view, nothing in this evidence suggests that Davis had
discretionary authority sufficiently substantial to influence
CRST‟s corporate policies.
31
The decisions upon which the Lennigs rely are
distinguishable, as in each case, the pertinent employee
exercised broad discretion capable of setting or influencing
corporate policy.16 In contrast, there is no evidence here
that Davis influenced or set corporate policy. Accordingly,
16 Those decisions are: White, supra, 21 Cal.4th at p. 577
[supervisor of eight stores with 65 employees was managing
agent because her superiors delegated to her “most, if not all, of
the responsibility for running [the] stores,” and she “ma[de]
significant decisions affecting both store and company policy”];
Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp.,
U.S.A. (2013) 221 Cal.App.4th 867, 886 [regional manager of
district encompassing from 140 to 240 car dealerships was
managing agent because he was “„ultimately responsible for the
total well being‟” of the dealerships]; Davis v. Kiewit Pacific Co.
(2013) 220 Cal.App.4th 358, 366-372 [triable issues existed
whether two employees were managing agents, as first was “top
onsite manager” charged with wide range of responsibilities for
completion of $170 million construction project, and second was
main equal employment opportunity officer for entire
corporation]; Major v. Western Home Ins. Co. (2009) 169
Cal.App.4th 1197, 1221 [triable issues existed whether regional
manager of claims adjusting firm was managing agent, as she
supervised 35 employees who handled claims nationwide,
oversaw the claims operation, supervised lower ranking
supervisors, trained adjustors, worked on the budget, supervised
the handling of certain files, authorized payment of benefits, and
directly handled the claim at issue in the action]; Hobbs v.
Bateman Eichler Hill Richards, Inc. (1985) 164 Cal.App.3d 174,
193-194, 204 [substantial evidence supported determination that
stock brokerage‟s office manager possessed broad degree of
discretion required for managing agent, as it showed that he
supervised and reviewed all 8,000 accounts in his office to ensure
suitable securities were purchased and no improper “churning”
occurred].
32
as there are no triable issues whether CRST is properly
subject to punitive damages under the standards specified in
section 3294, subdivision (b), CRST was entitled to summary
adjudication on that issue.17
17 In a footnote, the Lennigs‟ return suggests that CRST‟s
motion should be denied on another ground submitted to the trial
court, namely, that CRST failed to comply with its discovery
obligations. As explained below, the Lennigs have forfeited their
contention.
The contention relies on subdivision (h) of Code of Civil
Procedure section 437c, which provides: “If it appears from the
affidavits submitted in opposition to a motion for summary
judgment or summary adjudication, or both, that facts essential
to justify opposition may exist but cannot . . . be presented, the
court shall deny the motion, order a continuance to permit
affidavits to be obtained or discovery to be had, or may make any
other order as may be just.” Before the trial court, in opposing
Contreras‟s and CRST‟s motions for summary adjudication, the
Lennigs contended that Contreras and CRST improperly delayed
Contreras‟s deposition, and that CRST destroyed e-mails by
Stanek reflecting his suspicion that Contreras was intoxicated
when the July 7, 2014 accident occurred. However, in granting
Contreras‟s motion, the trial court necessarily concluded that the
delay in Contreras‟s deposition was not prejudicial, and that
Stanek‟s post-accident suspicions raised no triable issue of fact.
As the Lennigs have not challenged the ruling on Contreras‟s
motion, they have forfeited their contention (see pt.D.1. of the
Discussion, ante).
In a related contention, the Lennigs maintain that newly
produced discovery shows that CRST was aware of several
incidents of speeding by Contreras not reflected in the record
relating to CRST‟s motion for summary adjudication. We decline
to examine that evidence, as our review of a writ petition is
(Fn. continued on the next page.)
33
DISPOSITION
Let a peremptory writ of mandate issue directing that
respondent trial court vacate its order denying petitioners‟
motion for summary adjudication regarding the requests for
punitive damages against them, and enter a new order
granting summary adjudication on that issue. The
alternative writ, having served its purpose, is discharged,
and the temporary stay is vacated effective upon the
issuance of the remittitur. Petitioners are awarded their
costs.
CERTIFIED FOR PUBLICATION
MANELLA, J.
We concur:
WILLHITE, Acting P. J. COLLINS, J.
limited to the record before the trial court. (Spaccia v. Superior
Court (2012) 209 Cal.App.4th 93, 96, fn. 2 & 97.)
34
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12 P.3d 134 (2000)
142 Wash.2d 328
STATE ex rel. PENINSULA NEIGHBORHOOD ASSOCIATION, Appellant,
v.
WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; Sid Morrison, Secretary, Respondent.
No. 69432-0.
Supreme Court of Washington, En Banc.
Argued June 22, 2000.
Decided November 9, 2000.
*136 Preston, Gates & Ellis, Stephen Alan Smith, Seattle, amicus curiae on behalf of Safe Passage Across Narrows Now, et al.
Shawn Timothy Newman, Olympia, Eugster, Haskell, Stephen Kerr Eugster, Spokane, Cornelius J. Peck, Seattle, for Appellant.
Christine Gregoire, Atty. Gen., Deborah L. Cade, Asst. Atty. Gen., Olympia, for Respondent.
*135 GUY, C.J.
Peninsula Neighborhood Association (PNA) directly appeals from a declaratory and summary judgment finding the public-private transportation initiatives act (PPI Act), chapter 47.46 RCW, constitutional and the agreement between the Washington State Department of Transportation (WSDOT) and United Infrastructure Washington, Inc. (UIW) valid and enforceable. The issues before this court involve whether the PPI Act is constitutional, whether the advisory election and the rules adopted to implement the PPI Act are valid, and whether the agreement for the construction of a second Tacoma Narrows bridge is valid and enforceable. We affirm the trial court's ruling that the PPI Act is constitutional and that the challenge to the validity of the advisory election and the rules adopted to implement the PPI Act is barred by laches, but we reverse the trial court's ruling on the third issue and hold that the agreement violates existing state law and is therefore unenforceable.
The PPI Act was enacted in 1993. The goal of the act includes enhancement of the State's ability to provide an efficient transportation system by supplementing state transportation funds with private funds. RCW 47.46.010. The PPI Act authorizes the secretary of transportation to select up to six "demonstration project" proposals from private entities to test the feasibility of using the private sector to undertake public projects on behalf of WSDOT. RCW 47.46.030. The secretary is allowed to solicit proposals for new projects and negotiate agreements with private entities for the design, construction, operation, and maintenance of the facilities. RCW 47.46.030(1). Fourteen projects were submitted to WSDOT and six were selected to be demonstration projects. The project that is the subject of this litigation is the only remaining demonstration project; the other five projects have been terminated for various reasons.
The PPI Act has been amended several times since its initial enactment. The Legislature amended the PPI Act in 1995 requiring, among other things, a public involvement program and an advisory election. RCW 47.46.030(3), (11); Laws of 1995, 2d Ex.Sess., ch. 19, § 2. The next year the PPI Act was amended to require the advisory election be *137 held on the preferred alternative identified under the State Environmental Policy Act (SEPA), chapter 43.21C RCW. RCW 47.46.030(4); Laws of 1996, ch. 280, § 1. The statutory amendments gave WSDOT no direction on how to administer the advisory elections, so WSDOT adopted administrative rules to set out how to do so. WAC 468-105-010 through XXX-XXX-XXX. After the 1996 legislative amendment calling for the advisory election to be on the "preferred alternative," WSDOT amended its rules to reflect that this would be the preferred alternative identified in the draft environmental impact statement (EIS). WAC 468-105-020(11). The procedure used in adopting these amendments was challenged before the Joint Administrative Rule Review Committee in late 1997.
When the advisory election was held in November 1998, 53 percent of the voters in the affected area voted in favor of the new bridge project being financed through tolls. Following the election, Secretary of Transportation Sid Morrison announced that WSDOT would proceed with negotiating an agreement with UIW for the new bridge. The agreement sets out provisions for construction, maintenance, and financing of the bridge.
The negotiated agreement requires UIW to create a "special purpose entity" (SPE) to be an independent nonprofit corporation issuing the tax-exempt bonds. UIW contracts with the SPE to establish WSDOT as the SPE's management services contractor, and they then assume the responsibilities for carrying out all of the SPE's project obligations. Clerk's Papers at 641-42; Agreement at Section 2.3(b)(ii). As the operations and maintenance contractor, UIW is responsible to operate and maintain both the existing bridge and the new bridge at all times beginning with the commencement of tolling activities. Clerk's Papers at 697-98; Agreement at Sections 8.2(c)(i)(B) and 8.2(d)(i)(B). Thus, UIW is both the sole source management services contractor and, under the operations and maintenance contract, the sole operator of the project. The costs incurred by UIW for these operating and maintenance costs are payable from the "total revenues" (this term includes gross toll revenues and other revenue sources). Clerk's Papers at 697-98; Agreement at Sections 8.2(c)(ii)(C) and 8.2(d)(ii)(B). Under the agreement, the total revenues must be applied first to pay these operating and maintenance costs. The use of the total revenues in this manner has priority over all other uses including payment of principal and interest on the project debt, replenishment of debt service reserve accounts, and payments into and/or replenishment of, renewal and replacement reserve accounts. Clerk's Papers at 748-50; Agreement at Section 15.7-.8.
The current project would convert the existing Tacoma Narrows bridge from a four-lane two-way bridge to a three-lane one-way bridge for westbound traffic going toward Gig Harbor. Eastbound traffic going toward Tacoma and I-5 would travel on a new three-lane one-way bridge to be built adjacent to the existing bridge. As the agreement provides, the project is to be funded through bonds issued by a nonprofit corporation controlled by the private developer. The bonds are to be paid through the charging of a round-trip toll. Clerk's Papers at 649; Agreement at Section 3.3(a)(ii).
PNA filed an action in the Thurston County Superior Court on July 6, 1999, alleging constitutional defects in the PPI Act and statutory violations by WSDOT in implementing the statute. PNA sought relief in the form of declaratory judgment and mandamus. In his oral ruling, Judge Daniel J. Berschauer dismissed all of PNA's claims and declared the PPI Act constitutional and the agreement between WSDOT and UIW valid and enforceable.
Judge Berschauer held that there were no genuine issues of material fact in dispute and the issues in the case could be resolved as a matter of law. In doing so he concluded that PNA did not demonstrate the unconstitutionality of the PPI Act beyond a reasonable doubt. He reasoned that allowing the PPI Act to authorize demonstration projects and WSDOT to identify toll bridges is not an unlawful delegation of legislative power to set or create transportation policy. Judge Berschauer found that WSDOT maintains complete authority to select any of the proposals *138 submitted by the private entities. He reasoned that the general criteria set out in RCW 47.46.030 for selecting projects are sufficient to meet the constitutional challenge. Moreover, he found that the setting of tolls is an administrative function, so it is not a delegation of legislative authority.
In deciding the issues relating to the advisory election, Judge Berschauer ruled that the election is merely advisory so any irregularities do not invalidate it. He also ruled that PNA's challenge is barred by laches due to its waiting eight months to challenge the election. PNA also brought SEPA claims that Judge Berschauer dismissed without prejudice. Lastly Judge Berschauer found that even though WSDOT did not strictly comply with all Administrative Procedure Act (APA), chapter 34.05 RCW, requirements for promulgating rules, it had substantially complied with the APA and thus the rules were valid.
PNA appealed this decision to Division Two of the Court of Appeals on March 10, 2000. WSDOT filed a motion to transfer the appeal to this court and to accelerate review. The motions were granted and we will now decide the issues presented.
ISSUES
(1) Is the PPI Act a constitutional delegation of legislative authority to WSDOT in delegating authority to identify toll bridges and set toll rates?
(2) Did WSDOT substantially comply with the APA in adopting rules to implement the PPI Act?
(3) Did WSDOT exceed its statutory authority when it applied the PPI Act to develop a project that involves tolling the existing Tacoma Narrows bridge?
DISCUSSION
The first issue we will address is the constitutionality of the PPI Act. The agreement was made pursuant to the PPI Act and we therefore must first determine whether the act is constitutional. In making this determination we must decide whether the PPI Act is a constitutional delegation of legislative authority in allowing WSDOT to identify toll bridges and set toll rates.
The standard of review is to prove the unconstitutionality of the statute beyond a reasonable doubt. Island County v. State, 135 Wash.2d 141, 146, 955 P.2d 377 (1998). Because the statute is presumed to be constitutional, the burden is on the challenging party to prove, beyond a reasonable doubt, that it is unconstitutional. Id.; Citizens for More Important Things v. King County, 131 Wash.2d 411, 415, 932 P.2d 135 (1997); Erickson & Assocs., Inc. v. McLerran, 123 Wash.2d 864, 869, 872 P.2d 1090 (1994). This means that one challenging a statute must, by argument and research, convince the court that there is no reasonable doubt that the statute violates the constitution. Island County v. State, 135 Wash.2d at 147, 955 P.2d 377. The assumption is that the Legislature considered the constitutionality of its enactment and thus should be afforded some deference. Id. Though ultimately, the judiciary decides whether a given statute is within the Legislature's power to enact or whether it violates a constitutional mandate. Id. This is analogous to what the United States Supreme Court has stated, "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 1748, 146 L.Ed.2d 658 (2000).
The Legislature has the authority to delegate administrative power. Keeting v. Pub. Util. Dist. 1, 49 Wash.2d 761, 767, 306 P.2d 762 (1957). In delegating administrative power the Legislature must define (a) what is to be done, (b) the instrumentality which is to accomplish it, and (c) the scope of the instrumentality's authority in so doing, by prescribing reasonable administrative standards. Id. The Legislature may also delegate legislative power in certain circumstances. In Barry & Barry v. Dep't of Motor Vehicles, 81 Wash.2d 155, 500 P.2d 540 (1972), we outlined a standard similar to the delegation of administrative power for the delegation of legislative power: *139 the delegation of legislative power is justified and constitutional, and the requirements of the standards doctrine are satisfied, when it can be shown (1) that the legislature has provided standards or guidelines which define in general terms what is to be done and the instrumentality or administrative body which is to accomplish it; and (2) that procedural safeguards exist to control arbitrary administrative action and any administrative abuse of discretionary power.
Id. at 159, 500 P.2d 540 (emphasis omitted). In Barry we rejected the notion that specific standards need to accompany the delegation of power to an administrative agency. Id. at 161, 500 P.2d 540.
In support of its argument that the PPI Act is unconstitutional, PNA first argues that the decision to designate a new facility as a toll bridge is a legislative function. PNA also argues that the PPI Act illegally delegates authority to set toll rates because there are no procedural protections for consumers and the standard enunciated in the statute is not being used in the agreement. We disagree with PNA and find that the PPI Act is constitutional because it satisfies the requirements for a proper delegation of authority.
The PPI Act designates that WSDOT is to solicit proposals and negotiate agreements for six demonstration projects so as to promote an efficient transportation system. RCW 47.46.010. The Legislature has provided that the instrumentality accomplishing this is WSDOT, specifically the secretary of transportation. Id. The secretary solicits proposals and negotiates and enters into agreements for demonstration projects. RCW 47.46.030(1). The PPI Act requires program and fiscal audits of the PPI program and submission of progress reports on the program and fiscal audits. RCW 47.46.030(2). WSDOT develops a plan for public involvement that then must be adopted by the Legislature. Id. Projects that meet the minimum requirements of the act and have had the development plan approved by the Legislature are submitted to the transportation commission for review. Id. An advisory election is held on the proposed projects. RCW 47.46.030(3). In preparation for the advisory election, numerous committees consisting of citizens in the affected project areas are formed to analyze the impact of the projects. RCW 47.46.030(5), (6). A period of public comment is provided for as well. RCW 47.46.030(7), (8). Based on the statutory requirements set out in the PPI Act, we find that the Legislature has provided guidelines that define in general terms what is to be done and the instrumentality that is to accomplish it.
The next determination is whether the procedural safeguards exist to control arbitrary administrative action and any administrative abuse of discretionary power. The PPI Act states that all projects must comply with applicable rules and statutes. RCW 47.46.040(1). The secretary is to consult legal, financial, and other experts in the negotiation and development of the agreements. RCW 47.46.040(2). Public participation is provided for through soliciting public opinion. RCW 47.46.040(10). The prescribed reasonable standard is to determine a maximum rate of return on investment. RCW 47.46.050(2). How user fees or tolls are to be applied and the length of time for repayment are required to be in the agreements. RCW 47.46.050(4). Because each of these steps is subject to approval, and more importantly the disapproval, adequate procedural safeguards are in place to protect against arbitrary administrative action and any administrative abuse of discretionary power. Moreover, toll payers would also have the ability to obtain review of toll setting as an agency action under the APA. RCW 34.05.010(3). The standard of review would be whether the action was unconstitutional, outside the statutory authority of the agency or the authority conferred by a provision of law, arbitrary or capricious, or taken by persons who were not properly constituted as agency officials lawfully entitled to take such action. RCW 34.05.570(4). This is an additional safeguard to keep the delegated power in check.
PNA argues that there is a long history of the Legislature identifying toll bridges. The fact that toll bridges have historically been identified through legislation does not mean *140 it is a nondelegable function. The standard and procedural safeguards set out in the PPI Act are sufficient for a constitutional delegation of a legislative function. PNA has not met the burden of proving beyond a reasonable doubt that the PPI Act is unconstitutional.
PNA identifies State v. Brown, 95 Wash. App. 952, 977 P.2d 1242 (1999), in support of its argument that this is an unconstitutional delegation of authority. In that decision, the Court of Appeals found unconstitutional the statute's delegation to the Department of Corrections (DOC) the power to define a serious infraction as an element of the crime. The court found the standard defining what is to be done sufficient in Brown because the Legislature stated that the DOC must issue rules defining "serious infraction." The court found that the procedural safeguards were not sufficient because they are excluded from APA rule-making requirements and only subject to internal review. As such there was no legislative oversight or safeguard against prior loss of liberty. The court found that the procedural safeguards were inadequate because they did not sufficiently control or guard against arbitrary administrative action or abuse of discretion. Brown is distinguishable from the case at hand in that there are sufficient procedural safeguards contained in the PPI Act. In Brown only internal checks on actions were taken, here there is legislative and public participation.
The PPI Act meets the test for a constitutional delegation of the power to identify toll bridges; the next question is whether the setting of the toll is a constitutional delegation of authority. This court has held that the fixing of tolls is an administrative function. State ex rel. Toll Bridge Auth. v. Yelle, 61 Wash.2d 28, 47, 377 P.2d 466 (1962). Therefore, in determining whether this is a constitutional delegation, the delegation of administrative power test is to be applied. As previously stated, the secretary of transportation is to negotiate and enter into agreements for the demonstration projects. These agreements are to prescribe a reasonable standard to determine a maximum rate of return on investment.[1] RCW 47.46.050(2). The agreement is required to outline how user fees or tolls are to be applied and the length of time for repayment. RCW 47.46.050(4). These requirements are sufficient to satisfy the test for a constitutional delegation of administrative authority.
The PPI Act identifies what is to be done and by whom. It identifies how the demonstration projects are to be selected, who is involved in the process, and what should be included in the financial arrangements. The PPI Act outlines procedural safeguards both in the selection process and in the financing arrangements. The PPI Act defines who is to negotiate and enter into agreements and that the agreements are to contain specific standards in determining user fees or tolls. Because the PPI Act contains sufficient direction and safeguards to justify the delegation of both the legislative and administrative authority, PNA has not met the burden of proving the unconstitutionality of the statute beyond a reasonable doubt. We therefore affirm the trial court's ruling that the PPI Act is constitutional.
The next issue is whether WSDOT substantially complied with the APA in adopting rules to implement the PPI Act. PNA argues that WSDOT did not substantially comply with the APA, and therefore the amended rules should be found invalid and the advisory election should be declared null and void. The trial court ruled that even if there were procedural flaws justifying voiding the election, the claim challenging both the rules and election is barred by laches. We agree.
The amendment in question was adopted in June 1997. The advisory election was held in November 1998. PNA waited over two years after the amendment was *141 adopted and eight months after the election to raise the issue in court. As a result of the delay in taking action, PNA's claim is barred by laches.
We have held that where there is a showing of some injury, prejudice, or disadvantage to the defendant or an innocent third party to such a degree that continuation of the action by a dilatory plaintiff would be inequitable is cause to bar the plaintiff's claim. LaVergne v. Boysen, 82 Wash.2d 718, 513 P.2d 547 (1973). LaVergne involved a special levy election for a school district in which at least two persons who were not residents within the school district voted. Id. at 719, 513 P.2d 547. The plaintiff alleged that the contested votes could be critical to the passage of the levy. Id. We held that there exists a substantial public interest in the finality of elections necessitating prompt challenges and the plaintiff's claim made 79 days after the election was barred by laches. Id. at 721, 513 P.2d 547.
In this case, substantial prejudice and disadvantage to the defendant would result if the advisory election were declared null and void. PNA waited eight months to raise the issue. In that time the result of the election was relied upon. This lawsuit was filed three weeks after the agreement was signed. The results of the election were relied upon throughout the negotiations. PNA had the opportunity to challenge the election earlier before the results were relied upon, but did not. Because the continuation of the action by this dilatory plaintiff would be inequitable, the challenge to the amended rule and advisory election is barred by laches.
The final issue to be considered is whether the agreement, made pursuant to the PPI Act, exceeds its statutory authority. PNA contends that WSDOT exceeded its statutory authority in applying the PPI Act to develop a "demonstration project" that involves maintaining, operating, and tolling the existing Tacoma Narrows bridge when state law provides that the existing bridge shall be toll free and operated, maintained, and repaired with state highway funds. We agree and hold that the agreement violates existing state law and is therefore unenforceable as currently written.
Prior to the enactment of the PPI Act, the Legislature had in place statutes addressing the existing Tacoma Narrows bridge. RCW 47.56.270 Lake Washington and Tacoma Narrows bridges part of primary highways states:
The Lake Washington bridge and the Tacoma Narrows bridge in chapter 47.17 RCW made a part of the primary state highways of the state of Washington, shall, upon completion, be operated, maintained, kept up, and repaired by the department in the manner provided in this chapter, and the cost of such operation, maintenance, upkeep, and repair shall be paid from funds appropriated for the use of the department for the construction and maintenance of the primary state highways of the state of Washington.
RCW 47.56.271 Tacoma Narrows bridge Toll free facility states:
The Tacoma Narrows bridge hereinbefore by the provisions of RCW 47.17.065 and 47.56.270 made a part of the primary state highways of the state shall be operated and maintained by the department as a toll-free facility at such time as the present bonded indebtedness relating thereto is wholly retired and tolls equaling the present indebtedness of the toll bridge authority to the county of Pierce have been collected. It is the express intent of the legislature that the provisions of RCW 47.56.245[2] (section 47.56.245, chapter 13, Laws of 1961) shall not be applicable to the Tacoma Narrows bridge.
The transportation commission fixes toll rates for bridges coming under the purview of RCW 47.56.240. As such, the transportation *142 commission is to fix toll rates for the existing Tacoma Narrows bridge because the existing bridge is included under this chapter.
WSDOT argues that the PPI Act and the statutes relating to the existing bridge can be reconciled and both given effect but also argues that if we find they cannot be reconciled, the PPI Act should supersede preexisting statutes. We agree that the statutes may be reconciled and both given effect, however, the agreement violates the statutes pertaining to the existing bridge and as a result is unenforceable. Also, we are not convinced that the PPI Act was ever meant to supersede the preexisting statutes.
The construction of two statutes shall be made with the assumption that the Legislature does not intend to create an inconsistency. State v. Bash, 130 Wash.2d 594, 602, 925 P.2d 978 (1996). Statutes are to be read together, whenever possible, to achieve a "`harmonious total statutory scheme ... which maintains the integrity of the respective statutes.'" Employco Personnel Servs., Inc. v. City of Seattle, 117 Wash.2d 606, 614, 817 P.2d 1373 (1991) (quoting State v. O'Neill, 103 Wash.2d 853, 862, 700 P.2d 711 (1985)). The PPI Act allows for the selection of "demonstration projects." Details about the specific projects are not included in the PPI Act. Because the PPI Act does not contain any project specifics that violate existing state law, the PPI Act itself is not inconsistent with the statutory scheme created by RCW 47.56.270 and .271. The definitive issue is whether the agreement violates existing law, thus causing the agreement to be unenforceable.
WSDOT argues that other state law does not preclude it from building new toll facilities. WSDOT maintains that the purpose of RCW 47.56.270 and .271 was to ensure that after the bonds were paid off the state would not continue to collect tolls to pay for maintenance and operation of the bridge or to create a revenue source for the state. In support of this, WSDOT claims that "RCW 47.56.271 does not prohibit WSDOT from undertaking a new project that will be financed through tolls; it merely prohibits WSDOT from reimposing tolls on the existing facility for the purpose of generating revenue for operation and maintenance in the absence of a new construction project." Br. of Resp. at 26-27.
We do not find this argument compelling. RCW 47.56.270 and .271 address present bonded indebtedness and future operation and maintenance of the existing Tacoma Narrows bridge. The statutes do not address future debt incurred to finance future capital improvements. In RCW 47.56.271 the Legislature specifically excluded the existing Tacoma Narrows bridge from RCW 47.56.245 (enacted in 1961), thus requiring that tolls be removed without the state recouping its project development costs for the bridge. Additionally, the new bridge is not being proposed under chapter 47.58 RCW, so this statute allowing additional bridges to be built and paid for by tolling the existing bridge and the new bridge does not apply in this context. Nothing in this statutory scheme indicates that the Legislature intended for a toll to be reimposed on the existing bridge to help finance the construction of a new bridge.
The agreement provides for tolling of the existing bridge and therefore violates the prohibition on tolls specified in RCW 47.56.271. The statute states that the bridge will be "operated and maintained" as a toll-free facility. RCW 47.56.271. Because the agreement allows for the imposition of a "round trip" toll rate that is set, adjusted, and retained by WSDOT, it violates the statutory mandate that the existing Tacoma Narrows bridge be toll free.[3] The agreement allows the developer to elect to install and operate two-way electronic tolling. Clerk's Papers at 704; Agreement at Section 8.4(b). As such, the agreement permits tolling of the existing bridge. Therefore, the agreement allowing for the imposition of a toll to finance future capital improvements is not enforceable because it violates the prohibition on tolls specified in RCW 47.56.271.
*143 WSDOT goes on to argue that the PPI Act, recent amendments to the PPI Act, and legislative appropriations are evidence of the legislative intent to supersede RCW 47.56.271 to the extent it is in conflict with the PPI Act. WSDOT claims that the Legislature amended the PPI Act twice with knowledge of the selection of this project and without any objection to the selection of this project. The 1996 amendment was contained in a bill with the heading of "Tacoma Narrows BridgeImprovementsAdvisory Vote." Laws of 1996, ch. 280. The Legislature has also passed appropriations specifically for the new bridge project. Section 219(9) of the 1999-2001 transportation budget included an appropriation of $50 million "as a cash contribution for the development of the public private initiatives project at Tacoma Narrows." Laws of 1999, 1st Ex. Sess., ch. 1, 219(9). WSDOT claims this demonstrates that the Legislature approved of the new bridge project and was fully aware that private bonds, which would be repaid by tolls, would finance it. However, the agreement was not signed and made public until June 15, 1999. The appropriations bills predate the agreement. Because the agreement was not entered into prior to these legislative actions, we find no evidence of legislative intent to supersede RCW 47.56.271.
An additional argument was raised with regard to the PPI Act implicitly repealing RCW 47.56.271. But as PNA argues, the PPI Act does not meet the "implicit repealer" test because it is not (1) "`evidently intended to supersede the prior legislation'" on the existing Tacoma Narrows bridge, nor is it (2) "`so clearly inconsistent with, and repugnant to'" the earlier acts because they can be reconciled and both given effect. Wash. Fed'n of State Employees v. Office of Fin. Mgmt., 121 Wash.2d 152, 165, 849 P.2d 1201 (1993) (quoting Abel v. Diking & Drainage Imp. Dist. 4, 19 Wash.2d 356, 363, 142 P.2d 1017 (1943)). The PPI Act makes no specific reference to the proposed Tacoma Narrows bridge, and more importantly, makes no reference to the existing Tacoma Narrows bridge. Nothing in the statute indicates it is meant to supersede or implicitly repeal RCW 47.56.270 and .271. Both RCW 47.56.271 and the PPI Act can be given effect because they do not conflict with each other. However, to the extent the agreement for the new bridge is inconsistent with RCW 47.56.270 and .271, it cannot be given effect because it goes beyond WSDOT's statutory authority. WSDOT does not have the authority to repeal or supersede a statute by agreement with a private entity.
Even if the existing Tacoma Narrows bridge were allowed to have a toll reimposed, WSDOT still exceeded its statutory authority by entering into an agreement authorizing a private entity to determine the toll rate on the existing bridge. RCW 47.56.240 states that it is the transportation commission that is "empowered to fix the rates of toll and other charges for all toll bridges built under the terms of this chapter." The existing bridge was built pursuant to the terms of this chapter and therefore it is the transportation commission that is permitted to set toll rates, not a private entity contracting with WSDOT. To the extent the agreement allows the private entity to establish toll rates on the existing bridge, WSDOT has exceeded its statutory authority.
Moreover, WSDOT exceeded its statutory authority to the extent the agreement allows for tolls to pay for the operation and maintenance of the existing bridge.[4] The agreement requires that the total revenues be applied to the maintenance, upkeep, and repair of both bridges. Clerk's Papers at 697-98; Agreement at Sections 8.2(c)(ii)(C) and 8.2(d)(ii)(B). RCW 47.56.270 states that maintenance and operation is to be done from WSDOT highway funds. As a result, the agreement violates the statute *144 stating the existing bridge will be operated and maintained as a toll-free facility.
Because the agreement allows for tolling of the existing bridge, it violates state law that requires the existing Tacoma Narrows bridge to be a toll-free facility. The agreement also violates state law by allowing a private entity instead of the transportation commission to fix toll rates as required by RCW 47.56.240. Additionally, the agreement violates the requirement that the existing bridge be operated and maintained with WSDOT highway funds. For these reasons we hold that the agreement is unenforceable.
CONCLUSION
We conclude that the PPI Act is a constitutional delegation of authority to both identify toll bridges and set toll rates. PNA did not sustain its burden in proving the unconstitutionality of the PPI Act beyond a reasonable doubt. The PPI Act contains sufficient standards and guidelines as well as procedural safeguards to satisfy the constitutional challenge. Because PNA delayed challenging the adoption of the amended rules, its claim is barred by laches. Substantial prejudice and disadvantage would result if PNA's claim were allowed to go forward because the results of the advisory election were relied upon. The PPI Act and RCW 47.56.270 and.271 are not in conflict. However, the agreement entered into under the authority of the PPI Act violates these existing state laws. Therefore, as currently written and with current laws in place, the agreement is unenforceable.
We affirm the trial court's ruling and hold that the PPI Act is constitutional. Additionally, we affirm the trial court's ruling that the claim challenging the validity of the advisory election and the rules adopted to implement the PPI Act is barred by laches. Because the claim is barred, the rules and advisory election are valid. Finally, we reverse the trial court's ruling with regard to the agreement and hold that the agreement violates existing state law and is therefore unenforceable.
SMITH, JOHNSON, MADSEN, ALEXANDER, TALMADGE, IRELAND, and BRIDGE, JJ., concur.
SANDERS, J., concurs in result.
NOTES
[1] PNA argues that the PPI Act illegally delegates authority to set toll rates because there are no procedural protections for consumers and the standard enunciated in the statute is not being used in the agreement. We do not find this argument persuasive because what is contained in the actual agreement does not impact the constitutionality of the PPI Act. The fact that the agreement may not contain that which is required by the PPI Act affects whether or not the agreement is valid, not whether the PPI Act is constitutional.
[2] RCW 47.56.245 Toll charges retained until costs paid states:
The department shall retain toll charges on all existing and future facilities until all costs of investigation, financing, acquisition of property, and construction advanced from the motor vehicle fund, and obligations incurred under RCW 47.56.250 and chapter 16, Laws of 1945 have been fully paid. With respect to every facility completed after March 19, 1953, costs of maintenance, management, and operation shall be paid periodically out of the revenues of the facility in which such costs were incurred.
[3] The term "round trip" is the term used in the official project description that appeared in the voter's pamphlet of the seven counties participating in the advisory election held on November 3, 1998. Clerk's Papers at 112-13, 237-38.
[4] The agreement at Section 8.2(c) provides:
(i) Performance of operations and maintenance.
(A) WSDOT shall operate and maintain the existing bridge from the Agreement Date until commencement of tolling ... and
(B) Developer shall operate and maintain the existing bridge (including both the Existing Transportation Facilities and New Transportation Facilities constituting the existing bridge) at all times from the commencement of tolling through the end of the Term.
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132 F.3d 48
Sterling Craytonv.Kenneth S. Apfel, Commissioner of Social Security Administration
NO. 96-6002
United States Court of Appeals,Eleventh Circuit.
Nov 28, 1997
N.D.Ala., 120 F.3d 1217
1
DENIALS OF REHEARING EN BANC.
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Case: 12-40367 Document: 00512268761 Page: 1 Date Filed: 06/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 10, 2013
No. 12-40367 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
JUAN RAMON MAGALLAN–RODRIGUEZ,
Defendant–Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-cr-01308
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Defendant–Appellant Juan Ramon Magallan–Rodriguez (“Magallan”)
pleaded guilty, pursuant to a plea agreement, to harboring undocumented aliens
for financial gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii), 1324(a)(1)(A)(v)(II),
and 1324(a)(1)(B)(i). Following the recommendation of the Presentence
Investigation Report (“PSR”), the district court enhanced Magallan’s sentence
under several Guidelines provisions. One enhancement was for committing an
offense that “involved intentionally or recklessly creating a substantial risk of
*
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.
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No. 12-40367
death or serious bodily injury to another person.” Magallan objected to this
enhancement at sentencing and on appeal argues the district judge erred in
imposing it. We affirm.
I. Background
On October 3, 2012, the District Court for the Southern District of Texas
accepted Magallan’s guilty plea as to count two of an indictment charging him
with harboring illegal aliens for personal financial gain in violation of federal
law. According to the PSR, Magallan was paid to maintain two properties used
by an alien smuggling organization to hold undocumented aliens before they
were transported further north. One property, located in Pharr, Texas, consisted
of a frame ranch house, a mobile home, and a travel trailer (collectively, “the
first stash house”). The other property was a single house located in Edinburg,
Texas (“the second stash house”). Magallan was paid $250 for each truckload of
undocumented aliens that was transported from the stash houses. In the three
weeks before his arrest, three different pickup trucks arrived to transport
between ten and thirteen undocumented aliens each. Magallan was also, in his
capacity as caretaker of the two properties, given approximately $200 a week to
provide food and toiletry items to the aliens held captive in the stash houses.
Law enforcement officials were alerted to the presence of the stash houses
by two aliens who had escaped. Later that day, ICE agents initiated a traffic
stop of Magallan after they observed him visiting the first stash house.
Magallan consented to a search of the two stash houses. When the agents
searched the properties, they found forty-six undocumented aliens being held
against their will—thirty-seven at the first stash house and nine at the second.1
It is unclear how long they had been there, but the two aliens who escaped had
been held at the first stash house for twenty days, and another material witness
1
A tenth individual was found at the second stash house, but was later identified as
a legal permanent United States resident.
2
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No. 12-40367
stated she had been held for two months. The undocumented aliens were often
transferred between houses in order to avoid detection by law enforcement.
At the first stash house, some of the aliens were found inside the buildings
themselves, and some were found in the surrounding brush. An agent who
entered the first property noted that “although it did not appear that the
conditions . . . were dangerous, the conditions were poor in that there was
garbage, decomposing food[,] and mattresses all over the floors.” There was a
water cooler with water in it, but no food other than what was rotting on the
floors.
The second stash house was apparently cleaner, but the house was
unfurnished except for one mattress, a television, and a refrigerator, and there
was no food obviously available. An agent who entered both properties indicated
that none of the aliens complained that they were not fed or that they lacked
access to water.
Using the 2011 version of the United States Sentencing Guidelines
Manual (“USSG”), the probation officer prepared a PSR which calculated that
Magallan’s offense level was 28. The base offense level was determined to be 12,
pursuant to USSG § 2L1.1(a)(3). The offense level was increased by 14 points
for specific offense characteristics pursuant to USSG § 2L1.1(b): for the number
of aliens harbored, § 2L1.1(b)(2)(B); for harboring an unaccompanied minor,
§ 2L1.1(b)(4); for intentionally or recklessly creating a substantial risk of death
or serious bodily injury, § 2L1.1(b)(6); for causing serious bodily injury,
§ 2L1.1(b)(7); and for detaining through threat or coercion in connection with a
demand for money, § 2L1.1(b)(8). The PSR also recommended a two-level
enhancement for obstruction of justice based on Magallan’s having made a
threatening gesture to material witnesses while they were being kept in the
holding block.
3
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No. 12-40367
At his sentencing, Magallan registered seven separate objections to the
PSR, including one to the suggested two-level increase for intentionally or
recklessly creating a substantial risk of death or serious bodily injury. Magallan
admitted to the conditions as described in the PSR, but argued that those
conditions did not rise to the level required for the enhancement. The district
court denied the objection, noting that “there were about 30 some people stashed
in [the houses].” The judge continued, “With everything else that you’ve
described plus the fact that you have that many people stored in a small area
like that, yes, there’s a reckless danger here.”
All of Magallan’s objections were denied, but the court did grant him a
three-level decrease for acceptance of responsibility, bringing his total offense
level to 25. In explaining why Magallan was receiving a two-level enhancement
for reckless creation of a substantial risk of death or serious bodily injury, the
judge stated:
The Court is going to find that people were being cramped under the
conditions that have been described in this Presentence
Investigation Report, in addition to the fact that the Court can take
judicial notice of all its years on the bench that whenever there is an
illness with regards to an individual such as this under cramped
quarters, there’s always the risk of somebody else may have been
subjected to any kind of illness that would be contagious. So there
is a plus two.
Magallan’s criminal history category was I, which, taken with his offense level
of 25, yielded a Guidelines range of 57 to 71 months’ imprisonment. The district
court sentenced Magallan to 58 months in prison followed by a two-year term of
supervised release. Magallan timely appealed his sentence.
II. Discussion
A. Standard of Review
A district court’s factual findings are reviewed for clear error. United
States v. Cuyler, 298 F.3d 387, 389 (5th Cir. 2002). The “application of factual
4
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findings to the reckless endangerment enhancement” is reviewed de novo.
United States v. Torres, 601 F.3d 303, 305 (5th Cir. 2010). The factual findings
underlying the legal determination of endangerment are not clearly erroneous
“if the district court’s finding is plausible in light of the record as a whole.”
United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A district
court is permitted to draw reasonable inferences from the facts, and these
inferences are fact-findings reviewed for clear error. United States v. De
Jesus–Ojeda, 515 F.3d 434, 442 (5th Cir. 2008).
The Government must prove the facts supporting a sentencing
enhancement by a preponderance of the evidence. United States v. Trujillo, 502
F.3d 353, 357 (5th Cir. 2007). “[T]he district court may adopt facts contained in
a PSR without inquiry, so long as the facts have an adequate evidentiary basis
and the defendant does not present rebuttal evidence.” United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
B. Analysis
Under § 2L1.1(b)(6) of the Sentencing Guidelines, an individual’s sentence
for the offense of harboring an unlawful alien is enhanced if the offense “involved
intentionally or recklessly creating a substantial risk of death or serious bodily
injury to another person.” USSG § 2L1.1(b)(6). The commentary to the
provision further explains:
Reckless conduct to which the adjustment from subsection (b)(6)
applies includes a wide variety of conduct (e.g., transporting persons
in the trunk or engine compartment of a motor vehicle, carrying
substantially more passengers than the rated capacity of a motor
vehicle or vessel, or harboring persons in a crowded, dangerous, or
inhumane condition).
USSG § 2L1.1 cmt. n.5 (emphasis added). The enhancement is “not
limited to the examples provided in the commentary.” United States v.
Zuniga–Amezquita, 468 F.3d 886, 888 (5th Cir. 2006). Application of
5
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No. 12-40367
§ 2L1.1(b)(6) is fact-intensive. See United States v. Mateo Garza, 541 F.3d 290,
294 (5th Cir. 2008) (“[T]he examples given [in the Guideline commentary], with
one exception, require courts to look at the specifics of the situation.”); United
States v. Solis–Garcia, 420 F.3d 511, 516 (5th Cir. 2005) (“Defining the contours
of this enhancement is dependent upon carefully applying the words of the
guideline in a case-specific analysis.”).
This Court has had only one opportunity to determine if conduct involved
in housing aliens in stash houses justifies the enhancement. See United States
v. Teran, 236 F. App’x 82, 83–84 (5th Cir. 2007) (per curiam) (unpublished)
(affirming the enhancement where at least sixty-nine aliens were “kept in
severely overcrowded conditions in two rear bedrooms of a stash house without
running water or air conditioning, [and] allowed to use restroom facilities and
given water only once per day”). While it appears the conditions in the stash
houses in Teran posed a greater risk of death or serious bodily injury, we
conclude that the enhancement is also warranted in this case. Although the PSR
provided no information about the dimensions of the structures, Magallan does
not dispute that nearly fifty individuals were housed in only two houses, a
mobile home, and a travel trailer. The Guidelines commentary clearly states
that “crowded” conditions can be grounds for applying the enhancement. See
USSG § 2L1.1 cmt. n.5. That forty-seven people were forced to live for many
weeks in such inadequate housing is sufficient to affirm the district court’s
imposed sentence.
The enhancement can also be upheld on the grounds that the PSR
indicates some aliens were transported in the bed of a pickup truck. This Court
held in United States v. Cuyler that transporting aliens unsecured in the bed of
a pickup truck constituted reckless endangerment. 298 F.3d at 389–91. The
PSR indicates that pickup trucks came to transport aliens from the stash houses.
The district court was free to infer from the fact that between ten and thirteen
6
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aliens were transported at once that at least some were transported unsecured
in the truck bed. While we acknowledge that this Court has cautioned against
the creation or application of per se rules in the context of this enhancement, we
conclude that combined with the crowded conditions at the stash houses,
Cuyler’s holding is sufficient grounds to find that the enhancement applies. See
Mateo Garza, 541 F.3d at 294 (noting that “we have implied that we will not
create . . . per se rules” in the fact-intensive context of this enhancement).
III. Conclusion
For the foregoing reasons, we AFFIRM the sentence imposed by the
district court.
7
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERARDO ORTIZ-MAGANA, No. 06-72797
Petitioner, Agency No.
v. A75-184-118
MICHAEL B. MUKASEY, Attorney ORDER
General, AMENDING
Respondent. OPINION AND
AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2008*
San Francisco, California
Filed April 28, 2008
Amended September 9, 2008
Before: Barry G. Silverman, M. Margaret McKeown, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
12405
12408 ORTIZ-MAGANA v. MUKASEY
COUNSEL
Kari E. Hong, Esq., Law Offices of Kari E. Hong, Portland,
Oregon, for the petitioner.
Dalin R. Holyoak, Esq., Office of Immigration Litigation,
Civil Division, United States Department of Justice, Washing-
ton, D.C., for the respondent.
ORDER
The opinion filed on April 28, 2008, and published at 523
F.3d 1042 (9th Cir. 2008), is AMENDED as follows:
Page 1050: The second full paragraph (under subsection 3)
reads:
“Finally, we must afford at least some deference
to the BIA’s legal determination that aiding and
abetting falls within the definition of a violent crime.
Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1113
(9th Cir. 2007) (citing Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944)) (reasoning that “because the
BIA’s decision was an unpublished disposition,
issued by a single member of the BIA, which does
not bind third parties, we employ the less deferential
Skidmore standard” (quotation omitted)). Skidmore
instructs that the deference we afford to an agency’s
judgment “will depend upon the thoroughness evi-
ORTIZ-MAGANA v. MUKASEY 12409
dent in its consideration, the validity of its reasoning,
its consistency with earlier and later pronounce-
ments, and all those factors which give it power to
persuade, if lacking power to control.” 323 U.S. at
140.”
Replace with the following language:
“Finally, we are persuaded by the BIA’s determi-
nation that aiding and abetting falls within the defini-
tion of a violent crime. Although concise, the BIA’s
interpretation is well-taken. The BIA reasoned:”
Page 1050: Delete the third full paragraph, which states:
“The BIA’s interpretation here, although concise,
is well-taken. The BIA reasoned:”
No petitions for rehearing or rehearing en banc will be
accepted.
The mandate shall issue forthwith.
IT IS SO ORDERED.
OPINION
TALLMAN, Circuit Judge:
Assault with a deadly weapon under California Penal Code
§ 245(a)(1) is a crime of violence as defined by 18 U.S.C.
§ 16; therefore, an alien convicted of that offense generally is
an “aggravated felon” for immigration purposes. We must
decide as a matter of first impression whether an alien is also
an “aggravated felon” when he is convicted under section
245(a)(1) as an aider and abettor instead of as a principal. The
12410 ORTIZ-MAGANA v. MUKASEY
Board of Immigration Appeals (BIA) ruled that no principled
distinction can be drawn for immigration purposes between an
alien’s status as an accessory and his role as a principal in the
commission of a section 245(a)(1) aggravated felony. We
agree, and deny the petition for review.
I
In 1991, Gerardo Ortiz-Magana (Ortiz-Magana), an eight-
year-old native and citizen of Mexico, entered the United
States without inspection or admission. On November 27,
1998, at the age of fifteen, he adjusted his status to become
a lawful permanent resident.
On December 29, 2003, Ortiz-Magana was charged, in a
criminal information by the State of California, with assault-
ing Robert Mora with a knife, employing force likely to pro-
duce great bodily injury. The information further alleged that
Ortiz-Magana committed the offense for the benefit of, at the
direction of, or in association with a criminal street gang, with
the specific intent to promote, further, and assist in criminal
conduct by gang members. Finally, the information charged
that for purposes of limiting the availability of probation as a
sentence, Cal. Penal Code § 1203(e)(3), and as a sentencing
enhancement under Cal. Penal Code § 12022.7, Ortiz-Magana
“personally inflicted great bodily injury upon Robert Mora, a
person not an accomplice to the offense.” On July 1, 2004,
Ortiz-Magana pleaded guilty to, and was convicted of,
“[a]ssault with a deadly weapon by force” likely to produce
great bodily injury contrary to California Penal Code section
245(a)(1). He received a sentencing enhancement for partici-
pation in a criminal street gang, see Cal. Penal Code
§ 186.22(b)(1), which the abstract of judgment indicates was
stayed.
On November 11, 2005, the Department of Homeland
Security (DHS) served Ortiz-Magana with a notice to appear
for removal proceedings alleging that he had been convicted
ORTIZ-MAGANA v. MUKASEY 12411
of an aggravated felony. After several attempts to obtain
counsel and receiving continuances to get a lawyer, Ortiz-
Magana eventually appeared pro se before an Immigration
Judge (IJ), waived his privilege of representation by counsel,
and asked to proceed with his case. During proceedings,
Ortiz-Magana conceded all allegations in the notice to appear,
save for one. He contended that he was convicted of section
245(a)(1) not as a principal, but as an aider or abettor under
section 245(a)(5). He urges us to conclude that this character-
ization matters in deciding whether he was convicted of an
aggravated felony when he says he did not personally wield
the knife.
Confusingly, the documents submitted as part of the record
contain handwriting by an unknown party appearing to strike
out the section 12022.7 sentencing enhancement and designat-
ing such enhancement as “stricken.” This designation is prob-
lematic. An enhancement under California Penal Code section
12022.7 applies to those “who personally inflict great bodily
injury on any person other than an accomplice in the commis-
sion of a felony or attempted felony.” Thus, facially, it is
unclear whether Ortiz-Magana personally committed the
offense.
The plea transcript lends further support to Ortiz-Magana’s
theory that he was not convicted as a principal. At the plea
hearing, the following exchange occurred between the judge
and the prosecutor:
Judge: For clarification on the record,
there is charged in the Informa-
tion a [count for violating Penal
Code] 12022.7(a). It is my under-
standing that may have been an
error. In any event that is going
to be stricken.
Is that correct?
12412 ORTIZ-MAGANA v. MUKASEY
District Attorney: That’s correct. That’s always
been an aiding and abetting on
the 245(a)(5) and [Ortiz-Magana]
did not personally inflict great
bodily injury.
Judge: Therefore, Mr. Magana, it
appears you will be eligible for
half time credits[.]
During the immigration proceedings, the attorney for the
government examined the relevant penal code sections and
confirmed that “I don’t see that there’s an (a)(5) . . . . They
may have referred to the (a)(1), showing that there’s an aiding
and abetting within the (a)(1).” The IJ agreed: “There’s no
(a)(5) that I can see directly under the California Penal Code.
The transcript may have an error on it.” As a result, the IJ
continued the hearing for fifteen days so that the parties could
clarify Ortiz-Magana’s role in the offense.
On January 18, 2006, the parties again appeared, and Ortiz-
Magana submitted an affidavit from his former defense attor-
ney, which provides in relevant part:
2. Mr. Magana pled guilty to aiding and abetting
an assault with a deadly weapon with a gang
enhancement in this matter.
3. I am informed and believe that Mr. Magana did
not plead guilty to any personal use allegations,
including use of the knife or causing great bod-
ily injury.
For its part, DHS submitted an affidavit from the state’s
prosecuting attorney in the matter. The assistant district attor-
ney averred that “Section 245(a)(5) does not and has never
existed . . . . Any plea transcript in the above entitle[d] case
reflecting the defendant pleading guilty to any code section
ORTIZ-MAGANA v. MUKASEY 12413
other than Penal Code Section 245(a)(1) is errant.” The dis-
trict attorney also insisted that Ortiz-Magana “ple[ ]d guilty to
a violation of California Penal Code Section 245(a)(1)
(assault with a deadly or dangerous weapon with force likely
to commit great bodily injury) and admitted the special alle-
gation under Penal Code Section 186.22(b)(1) that he com-
mitted the assault with the deadly weapon to benefit a
criminal street gang.”
After considering the affidavits, the fact that no section
245(a)(5) exists under California law, and the information and
abstract of judgment, the IJ concluded that Ortiz-Magana per-
sonally committed the assault, and the crime was one of vio-
lence and an aggravated felony rendering him ineligible for
discretionary cancellation of removal. The IJ explained:
The Court also finds that in this specific case there
is no accessory issue and or aiding and abetting
issue. There is no princip[a]l issue as listed by the
various Ninth Circuit case decisions. [Ortiz-Magana]
was convicted of a substantive aggravated felony,
crime of violence, sentenced to one year or more.
Ortiz-Magana timely appealed to the BIA. Represented by
counsel, he argued that (1) aiding and abetting is included
under California Penal Code section 245(a)(1); (2) under our
decision in Penuliar v. Ashcroft, 435 F.3d 961 (9th Cir. 2006),
vacated, Gonzales v. Duenas-Alvarez, 127 S.Ct. 815 (2007),
his conviction for aiding and abetting an assault with a deadly
weapon was not an aggravated felony; and (3) because a
crime of violence as contemplated by 18 U.S.C. § 16 excludes
aiding and abetting, he was not convicted of an aggravated
felony. Thereafter, DHS moved for summary affirmance.
On May 23, 2006, the BIA issued a written decision affirm-
ing the IJ’s determination. The BIA concluded:
[Ortiz-Magana] does not dispute that section
245(a)(1) of the California Penal Code qualifies as a
12414 ORTIZ-MAGANA v. MUKASEY
crime of violence. [Ortiz-Magana] was convicted of
that offense. He thus meets the requirement for
removability under the literal language of the statute.
It does not matter how [he] committed the crime or
whether he was convicted as a principal or for aiding
and abetting the crime. In either case he was still
convicted of a crime that is “a crime of violence.”
With respect to Ortiz-Magana’s contention that Penuliar, in
which we were unwilling to extend accessorial liability to the
aggravated felony of theft as theft had been defined under
California law, was dispositive of his case, the BIA concluded
that “[f]or us to extend the ‘aiding and abetting’ theory of
Penuliar to cases other than theft offenses would appear to
warp the Act so that any alien convicted in California could
immediately claim to have been an accomplice instead of a
principal, and avoid the consequences of criminal acts.”
Finally, the BIA agreed that the charging document and
abstract of judgment were sufficient to sustain Ortiz-
Magana’s removal. This timely petition for review followed.
II
We lack jurisdiction to review final orders of removal
unless they raise constitutional questions or questions of law.
See 8 U.S.C. § 1252(a)(2)(C) & (a)(2)(D). Whether a crime
constitutes an aggravated felony is a question of law, which
we review de novo. Morales-Alegria v. Gonzales, 449 F.3d
1051, 1053 (9th Cir. 2006). Although we review such ques-
tions de novo, we give appropriate deference to the BIA’s
legal determinations. Gonzales-Gonzales v. Ashcroft, 390
F.3d 649, 651 (9th Cir. 2004). Because the BIA issued a writ-
ten decision, we review the BIA’s determination in combina-
tion with the IJ’s decision as a guide to the BIA’s reasoning.
Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2000).
ORTIZ-MAGANA v. MUKASEY 12415
III
A
As an initial matter, the government urges us to ignore the
principal-accessory issue in this case because, in its view, the
charging and conviction documents are sufficiently clear that
he personally committed the offense. We disagree.
[1] Ortiz-Magana asserts that his conviction cannot qualify
as an aggravated felony because it falls outside the generic
definition of a crime of violence. His argument therefore is
premised on the notion that the government cannot sustain its
burden under the modified categorical approach set forth in
Taylor v. United States, 495 U.S. 575, 599-602 (1990). It is
well established that under that approach, we “consider
whether documentation or other judicially noticeable facts in
the record indicate that [the petitioner] was convicted of the
elements of the generically defined crime.” Huerta-Guevara
v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003).
[2] The modified categorical approach offers no assistance
here. The judicially noticeable facts, here the abstract of judg-
ment, the information, and the plea colloquy, are contradic-
tory. As noted, the information alleged that Ortiz-Magana
personally committed the offense and added sentencing
enhancements for his personal role as well as for participating
in a criminal gang. On the other hand, the abstract of judg-
ment contains handwriting purporting to strike the sentencing
enhancement for personally committing the offense, creating
an ambiguity as to Ortiz-Magana’s exact role. Lending further
support to his argument, the plea colloquy contains an admis-
sion by the prosecuting attorney that Ortiz-Magana’s charge
had “always been an aiding and abetting on the 245(a)(5) and
[Ortiz-Magana] did not personally inflict great bodily injury.”
Although the parties agree that the California Penal Code
does not include a subsection (a)(5), that fact alone is of no
moment. The citation to the non-existent criminal provision
12416 ORTIZ-MAGANA v. MUKASEY
most likely was human error, either the product of inadver-
tence on the prosecutor’s behalf or stenographic mistake. We
therefore cannot say on this record that Ortiz-Magana’s con-
viction unequivocally was based on his role as a principal.1
B
Resort to the modified categorical approach is not disposi-
tive to support the conclusion that Ortiz-Magana personally
committed the offense. Nevertheless, the record does support,
and the parties do not dispute, that he pleaded guilty to, and
was convicted of, violating section 245(a)(1) of the California
Penal Code. As a result, we proceed to consider whether
Oritiz-Magana’s conviction as an aider and abettor makes any
difference. Three factors persuade us that Ortiz-Magana’s sta-
tus as an accessory does not.
1
In Gonzales v. Duenas-Alvarez, 127 S.Ct. 815 (2007), the
Supreme Court undertook an exhaustive analysis examining
the common law evolution of accomplice liability in jurisdic-
tions of the United States, including the federal courts. Ini-
tially, the Court explained, “[t]he common law divided
participants in a felony into four basic categories: (1) first-
degree principals, those who actually committed the crime in
question; (2) second-degree principals, aiders and abettors
present at the scene of the crime; (3) accessories before the
1
We have considered whether we should remand to the BIA because the
record is unclear as to Ortiz-Magana’s precise role in the offense of con-
viction. Two factors militate against remand. First, the IJ presented the
parties with ample opportunity to present additional evidence. Both sub-
mitted affidavits, which were of little help. No additional record from the
state court was discovered that would conclusively resolve the question.
We believe that no additional information would be available that previ-
ously was not, and a remand therefore would be futile. Second, as dis-
cussed below, we can resolve the legal question on the basis of the
available evidence.
ORTIZ-MAGANA v. MUKASEY 12417
fact, aiders and abettors who helped the principal before the
basic criminal event took place; and (4) accessories after the
fact, persons who helped the principal after the basic criminal
event took place.” Id. at 820.
In recent times, however, the lines between these historical
categories have blurred. In fact, “[i]n the course of the 20th
century, . . . American jurisdictions eliminated the distinction
among the first three categories.” Id. Presently, “every
jurisdiction—all States and the Federal Government—has
expressly abrogated the distinction among principals and aid-
ers and abettors who fall into the second and third categories.”
Id. (internal quotation marks omitted).
[3] These observations led the Court to conclude that
“[s]ince criminal law now uniformly treats those who fall into
the first three categories alike, the generic sense in which the
term theft is now used in the criminal codes of most States
covers such aiders and abettors as well as principals.” Id.
(internal quotation marks and citation omitted). For immigra-
tion purposes, the Court reasoned, “the criminal activities of
these aiders and abettors of a generic theft must themselves
fall within the scope of the term ‘theft’ ” as it appears in the
federal statute defining aggravated felonies. Id.
[4] As a general matter, then, those who aid and abet a fel-
ony are treated the same as if they had personally committed
the offense. Ortiz-Magana’s reliance on Penuliar, which the
Supreme Court vacated in Alvarez, for the opposite proposi-
tion is thus foreclosed.
a
Ortiz-Magana nonetheless maintains that despite Alvarez’s
reasoning, his case presents a critical distinction: theft is an
aggravated felony and traces its roots to the common law. On
the other hand, a crime of violence is a legislative construc-
tion, not a crime recognized at common law. Therefore, he
12418 ORTIZ-MAGANA v. MUKASEY
asserts that simply because the Supreme Court has found that
aiding and abetting a vehicle theft may constitute an aggra-
vated felony, it does not mean that aiding and abetting falls
within the scope of a crime of violence under 18 U.S.C. § 16.
We remain unpersuaded.
First, Ortiz-Magana does not dispute that a conviction as a
principal under section 245(a)(1) is a crime of violence.
Indeed, we have repeatedly held that “it is undisputed that
assault with a deadly weapon is included in . . . the amended
definition of ‘aggravated felony.’ ” Aragon-Ayon v. INS, 206
F.3d 847, 851 (9th Cir. 2000). Second, the California courts
have included aiding and abetting within the definition of
assault with a deadly weapon under section 245(a)(1). Gill v.
Ayers, 342 F.3d 911, 915 (9th Cir. 2003) (citing People v.
Rodriguez, 17 Cal. 4th 253, 261 (1998)). Third, there is little
support for any distinction under the common law between
aiding and abetting assault with a deadly weapon and person-
ally accomplishing the offense. Alvarez, 127 S.Ct. at 820. The
same specific intent is required for each as is the resulting
harm.
[5] As a result, because it is conceded that a conviction
under section 245(a)(1) is a crime of violence, California con-
victs aiders and abettors under the same statute, and there is
no material distinction between an aider and abettor and prin-
cipals in any jurisdiction of the United States including Cali-
fornia and federal courts: aiding and abetting an assault with
a deadly weapon is the functional equivalent of personally
committing that offense. Since that offense is a crime of vio-
lence, it constitutes an aggravated felony.
b
Ortiz-Magana also urges us to analogize crimes of violence
under federal immigration law to “serious felonies” as defined
by California law. We find such an analogy unhelpful.
ORTIZ-MAGANA v. MUKASEY 12419
To qualify under California’s three-strikes provision, con-
victions must be for “serious felonies.” See People v. Rodri-
guez, 17 Cal. 4th 253, 261 (Cal. 1998). Consequently, in
three-strike cases, the California courts have drawn a distinc-
tion between aiding and abetting and personally committing
an offense charged under California Penal Code section
245(a)(1): the former may not be used as a “strike,” but the
latter may. See id. Indeed, statutorily, “only those crimes are
‘serious’ felonies in which the defendant ‘personally inflict-
[ed] great bodily injury on any person, other than an accom-
plice, or . . . personally use[d] a firearm’ or personally use[d]
a dangerous or deadly weapon.’ ” People v. Watts, 131 Cal.
App. 4th 589, 595 (Cal. 2005) (citing Cal. Penal Code
§ 1192.7(c)(8); (c)(23)) (emphasis added).
Thus, California’s legislative scheme requires, as an ele-
ment, the personal commission of a serious felony. The statu-
tory language of 18 U.S.C. § 16 contains no such analogue,
and, in our view, comparison to California law is unavailing.
c
[6] Ortiz-Magana correctly notes that Alvarez did not fore-
close all possibility that an offense committed by an aider and
abettor potentially would fall outside the generic definition of
an aggravated felony. However, the Supreme Court squarely
placed the burden on the alien to demonstrate a realistic prob-
ability that the state would apply the offense in a way that
falls outside the generic definition of the crime. Alvarez, 127
S.Ct. at 822 (reasoning that “Duenas-Alvarez must show
something special about California’s version of the doctrine-
for example, that California in applying it criminalizes con-
duct that most other States would not consider ‘theft.’ ”). The
Court further instructed:
[T]o find that a state statute creates a crime outside
the generic definition of a listed crime in a federal
statute requires more than the application of legal
12420 ORTIZ-MAGANA v. MUKASEY
imagination to a state statute’s language. It requires
a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that
falls outside the generic definition of a crime. To
show that realistic possibility, an offender, of course,
may show that the statute was so applied in his own
case. But he must at least point to his own case or
other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for
which he argues.
Id.
[7] Ortiz-Magana has not met this burden. Although he
points to his own case, he presents no evidence that California
has applied aiding and abetting assault outside the generic
definition of a crime of violence. It is undisputed that a crimi-
nal may be punished for violating section 245(a)(1) by aiding
and abetting that offense. Ortiz-Magana’s status as an acces-
sory did not change the mens rea required to prove the crime.
In other words, he pleaded guilty to intending that an assault
with a deadly weapon take place and that harm occur as a
result. Because, as discussed above, an alien’s status as an
aider or abettor makes no practical difference in whether his
crime is one of violence, he cannot demonstrate that his con-
viction was not for an aggravated felony. Nor does he attempt
to point to other cases in which the California courts have
applied section 245(a)(1) in a “special (non-generic) manner.”
Alvarez, 117 S.Ct. at 822. We are therefore persuaded that
Ortiz-Magana cannot show “something special about Califor-
nia’s version of the doctrine,” id., that would alter the out-
come in this case.
2
The plain language of the statute does not compel the oppo-
site result. A crime of violence under 18 U.S.C. § 16 is
defined as:
ORTIZ-MAGANA v. MUKASEY 12421
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.
Facially, nothing in the statutory definition requires the
offense to be personally committed by the individual. Indeed,
the terms “attempted use” and “threatened use” appear to lend
support that inchoate crimes, ones that need not be completed,
are encompassed in the definition. Theoretically, Ortiz-
Magana could have aided and abetted the charged offense by
threatening the use of force.
Ortiz-Magana insists, however, that had Congress intended
18 U.S.C. § 16 to include aiding and abetting, accessorial lan-
guage would plainly appear in the text. For example, Con-
gress could have amended 8 U.S.C. § 1101(a)(43)(U) to
include aiding and abetting along with the designation that
“conspiracy” and “attempt” offenses constitute aggravated
felonies. In essence, Ortiz-Magana attempts to draw on the
well-established principle that when “Congress includes par-
ticular language in one section of a statute but omits it in
another[,] . . . it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432
(1987) (quotation omitted). His reasoning is misplaced.
Ortiz-Magana has not cited any examples of the inclusion
of “aiding and abetting” in one section and its exclusion in
another. He simply believes Congress should have included
that term in two distinct provisions. Even if this rule of con-
struction had force under these circumstances, it did not pre-
vent the Supreme Court from interpreting aiding and abetting
vehicle theft to fall within the enumerated aggravated felony
12422 ORTIZ-MAGANA v. MUKASEY
of theft. See Alvarez, 127 S.Ct. at 820. The concerns Ortiz-
Magana cites were equally present in Alvarez. We therefore
conclude that the statutory language encompasses crimes of
violence that an alien aids and abets.
3
[8] Finally, we are persuaded by the BIA’s determination
that aiding and abetting falls within the definition of a violent
crime. Although concise, the BIA’s interpretation is well-
taken. The BIA reasoned:
[Ortiz-Magana] does not dispute that section
245(a)(1) of the California Penal Code qualifies as a
crime of violence. [Ortiz-Magana] was convicted of
that offense. He thus meets the requirement for
removability under the literal language of the statute.
It does not matter how [he] committed the crime or
whether he was convicted as a principal or for aiding
and abetting the crime. In either case he was still
convicted of a crime that is “a crime of violence.”
With respect to Ortiz-Magana’s contention that Penuliar, in
which we were unwilling to extend accessorial liability to the
aggravated felony of theft as theft had been defined under
California law, was dispositive of his case, the BIA concluded
that “[f]or us to extend the ‘aiding and abetting’ theory of
Penuliar to cases other than theft offenses would appear to
warp the Act so that any alien convicted in California could
immediately claim to have been an accomplice instead of a
principal, and avoid the consequences of criminal acts.” We
agree.
[9] It is unlikely that Congress intended for aliens, who oth-
erwise committed crimes of violence, to be able to escape the
attendant immigration consequences simply because of their
status in the commission of the offense as an accessory. The
BIA’s reasoning is especially persuasive in light of the fact
ORTIZ-MAGANA v. MUKASEY 12423
that no jurisdiction of the United States makes a distinction
between the conduct of an aider and abettor and a principal,
Alvarez, 127 S.Ct. at 820, and the statutory definition does not
preclude classification based on an alien’s accessorial role in
the offense of conviction. Like the BIA, we conclude that
Ortiz-Magana was convicted of a crime of violence and is
removable as an aggravated felon.
IV
An alien, like Ortiz-Magana, who is convicted of aiding
and abetting an assault with a deadly weapon under California
Penal Code § 245(a)(1) has committed a crime of violence as
if he had personally committed the offense. The BIA correctly
reached this result in finding that Ortiz-Magana was remov-
able as a matter of law regardless of whether he was a princi-
pal or an accessory.
PETITION DENIED.
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United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
December 12, 2014
Before
RICHARD A. POSNER, Circuit Judge
No. 12‐2353
ALBERTO VELASCO‐GIRON, Petition for Review of an Order
Petitioner, of the Board of Immigration Appeals.
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
O R D E R
Judge Posnerʹs dissenting opinion, released on September 26, 2014, is hereby
withdrawn, and the following dissenting opinion is substituted, with the approval of
Judge Easterbrook, the author of the majority opinion. The previous dissenting opinion
was based on the wrong draft. Judge Posner apologizes for the mistake.
| {
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} |
41 Cal.Rptr.3d 277 (2006)
138 Cal.App.4th 360
The PEOPLE, Plaintiff and Respondent,
v.
Teresa Lynn RYAN, Defendant and Appellant.
No. F047368.
Court of Appeal, Fifth District.
April 5, 2006.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
OPINION
ARDAIZ, P.J.
Appellant Teresa Lynn Ryan stands convicted, following a jury trial, of burglary (Pen.Code,[1] § 459; counts I-III); receiving *278 stolen property (§ 496, subd. (a); count IV); forgery by signing another's name (§ 470, subd. (a); counts V-VI); forgery by making or passing a forged check (id., subd. (d); counts VII-VIII); forgery by possessing a blank or unfinished check (§ 475, subd. (b); count IX); unauthorized use of personal identifying information (§ 530.5, subd. (a); count XI); and fraudulent use of an access card (§ 484g, subd. (a); count XII), a misdemeanor. In addition, she admitted having served four prior prison terms (§ 667.5, subd. (b)). Sentenced to a total unstayed term of 12 years 4 months in prison and ordered to pay various fines and penalty assessments, she now appeals. For the reasons that follow, we will vacate the convictions on counts V and VI and remand the matter for modification of portions of the sentence.
FACTS
On September 21, 2004, appellant and Moriah Valencia entered three antique stores in Jamestown and stole purses and other items belonging to store personnel.[2] Generally speaking, appellant distracted the victim by asking to see something in the store, while Valencia absconded with the loot. Appellant then used or attempted to use some of the stolen checks, debit cards, credit cards, and identifications. Goods purchased with these items, together with other purloined belongings, were found in a vehicle associated with the two women. In defense, appellant admitted entering stores and asking about items that interested her, but claimed she was uninvolved in, and unaware of, Valencia's theft-related activities.
DISCUSSION
I[**]
II
LESSER INCLUDED OFFENSES
In counts V and VI, appellant was convicted of forgery in violation of subdivision (a) of section 470. In counts VII and VIII, she was convicted of forgery in violation of subdivision (d) of that statute. Counts V and VII were based on her conduct of signing Cynthia Carter's name to a check and using it to make a purchase at Staples, while counts VI and VIII were based on her conduct of signing Carter's name to a check and attempting to use it to make a purchase at Gypsy Rose Antiques. Appellant now says she could not properly be convicted of counts V and VI because forgery in violation of section 470, subdivision (a) is a lesser included offense of forgery in violation of section 470, subdivision (d). We reach the result urged by appellant, but by way of different reasoning.
It has long been settled in this state that multiple convictions may not be based on necessarily included offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal.Rptr.2d 489, 968 P.2d 48.) "`The test ... of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' [Citations.]" (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.)
In our view, the various subdivisions of section 470 do not set out greater and lesser included offenses, but different ways *279 of committing a single offense, i.e., forgery. As originally enacted, section 470 contained no subdivisions. Even from 1990 to 1998, when the statute was divided into subdivisions (a) and (b), the various acts that constituted forgery were amassed in an undifferentiated, confusing recitation.[5]
Former section 470 was repealed in 1998, and a new section 470 was enacted wherein the various acts constituting forgery were set out, to a certain degree, in different subdivisions. (Stats.1998, ch. 468, §§ 1-2, pp. 2704-2705.)[6] Thus, as enacted in 1998 and as it existed when appellant committed the offenses at issue here, section 470 provided:
"(a) Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery.
"(b) Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery.
"(c) Every person who, with the intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the *280 return of any officer to any process of any court, is guilty of forgery.
"(d) Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: any check, bond, bank bill, or note, cashier's check, traveler's check, money order, post note, draft, any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, receipt for money or goods, bill of exchange, promissory note, order, or any assignment of any bond, writing obligatory, or other contract for money or other property, contract, due bill for payment of money or property, receipt for money or property, passage ticket, lottery ticket or share purporting to be issued under the California State Lottery Act of 1984, trading stamp, power of attorney, certificate of ownership or other document evidencing ownership of a vehicle or undocumented vessel, or any certificate of any share, right, or interest in the stock of any corporation or association, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquaintance, release or discharge of any debt, account, suit, action, demand, or any other thing, real or personal, or any transfer or assurance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal; or any matter described in subdivision (b).
"(e) Upon a trial for forging any bill or note purporting to be the bill or note of an incorporated company or bank, or for passing, or attempting to pass, or having in possession with intent to pass, any forged bill or note, it is not necessary to prove the incorporation of the bank or company by the charter or act of incorporation, but it may be proved by general reputation; and persons of skill are competent witnesses to prove that the bill or note is forged or counterfeited."[7]
The overhaul of section 470 and related provisions was intended to "`make [the] laws governing financial crimes more "user friendly"'" and "`to clarify and streamline existing law with regard to forgery and credit card fraud.'" It was not intended to "change the meaning or legal significance of the law," but "`merely [to] organize[] the relevant code sections into a cohesive and succinct set of laws that can be readily referred to and understood.'" (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 2008 (1997-1998 Reg. Sess.) as introduced Feb. 18, 1998, p. 2.)
In construing former section 470, courts consistently held that there was but one crime of forgery, and that the various acts proscribed by the statute were simply different means of committing that offense. For instance, in People v. Frank (1865) 28 Cal. 507, 513, the California Supreme Court stated: "Where, in defining an offense, a statute enumerates a series of *281 acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, for the reason that notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense. To illustrate our meaning, take the statute against forgery, ... where we find several acts enumerated, all of which are declared to be forgery. Thus `the falsely making,' `altering,' `forging,' `counterfeiting,' `uttering,' `publishing,' `passing,' `attempting to pass' any of the instruments or things therein mentioned, with the intent specified, is declared to be forgery. Now, each of those acts singly, or all together, if committed with reference to the same instrument, constitute but one offense. Whoever is guilty of either one of these acts is guilty of forgery; but if he is guilty of all of them, in reference to the same instrument, he is not therefore guilty of as many forgeries as there are acts, but of one forgery only. Hence an indictment which charges all of the acts enumerated in the statute, with reference to the same instrument, charges but one offense, and the pleader may therefore at his option charge them all in the same count, or each in separate counts...." (Accord, People v. Leyshon (1895) 108 Cal. 440, 442-443, 41 P. 480; People v. Harrold (1890) 84 Cal. 567, 568-569, 24 P. 106; People v. Luizzi (1960) 187 Cal.App.2d 639, 644, 9 Cal.Rptr. 842; People v. Keene (1954) 128 Cal. App.2d 520, 526-527, 275 P.2d 804.) In People v. McKenna (1938) 11 Cal.2d 327, 332, 79 P.2d 1065, the high court stated: "The crime of forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud. [Citation.]" (Accord, People v. Reisdorff (1971) 17 Cal.App.3d 675, 678-679, 95 Cal.Rptr. 224; People v. Swope (1969) 269 Cal.App.2d 140, 143, 74 Cal.Rptr. 586; People v. McKissack (1968) 259 Cal.App.2d 283, 287, 66 Cal.Rptr. 199; People v. Williams (1960) 186 Cal.App.2d 420, 425, 8 Cal.Rptr. 871.) In short, "[t]he false making and uttering of the same instrument ... constitutes but one offense. [Citations.]" (People v. Neder (1971) 16 Cal.App.3d 846, 853, fn. 2, 94 Cal.Rptr. 364.)
Since the 1998 revision of section 470 did not change the law, either by intent or by language, we conclude that the doing of one or more of the proscribed acts, with respect to the same instrument, constitutes but one offense. Thus, subdivisions (a) and (d) of the statute do not describe separate offenses, but merely separate means of committing the same offense. This conclusion is supported by the fact that the mens rea is the same for each (intent to defraud), as is the punishment (see § 473).
We recognize that a number of the authorities cited above were concerned not with the number of convictions that could be had, per se, but with pleading requirements, and that they antedated the enactment of section 954, or at least of some of the pertinent provisions now contained in that statute. (See Historical Note, 50A West's Ann. Pen.Code (1985 ed.) foll. § 954, pp. 64-65.) Nevertheless, a consideration of that statute does not alter our conclusion that appellant could be convicted of forgery only once each with respect to the Staples and Gypsy Rose Antiques incidents.
In pertinent part, and with italics added, section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense ... under separate counts .... The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, *282 but the defendant may be convicted of any number of the offenses charged...." This permits the charging of the same offense on alternative legal theories, so that a prosecutor in doubt need not decide at the outset what particular crime can be proved by evidence not yet presented. (4 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Pretrial Proceedings, § 209, p. 413.)
Under section 954, multiple convictions can be based on a single criminal act, unless one offense is necessarily included in the other. (People v. Benavides (2005) 35 Cal.4th 69, 97, 24 Cal.Rptr.3d 507, 105 P.3d 1099 (Benavides).) In Benavides, for example, the California Supreme Court rejected the contention that the defendant could not be convicted of lewd and lascivious conduct (§ 288, subd. (a)) in addition to rape (§ 261, former subd. (2)) and sodomy (§ 286, former subd. (c)), where the evidence supporting that conviction was the same as the evidence of rape and sodomy. The court reasoned that lewd conduct with a child is not a necessarily included offense of either rape or sodomy, and is a distinct crime. (Benavides, at p. 97, 24 Cal.Rptr.3d 507, 105 P.3d 1099.) In People v. Lofink (1988) 206 Cal.App.3d 161, 253 Cal.Rptr. 384, a child was physically abused on two occasions, resulting in facial injuries one time and bone fractures the other. As to each, the defendant was convicted of willful cruelty toward a child under circumstances likely to cause great bodily harm and death (§ 273a, former subd. (1)) and inflicting corporal punishment on a child resulting in traumatic conditions (§ 273d). On appeal, he contended he could not properly be convicted of violating two separate child abuse statutes for the same acts or course of conduct. The Court of Appeal rejected this argument, finding that multiple charges and multiple convictions both were permitted by section 954, since the charges constituted different statements of the same offense. (Lofink, at p. 166, 253 Cal.Rptr. 384.)
In the foregoing cases (and other similar authorities), while the defendant may have committed a single act or course of conduct, he or she was charged with, and convicted of, violations of separate statutes. While each statute may represent a different statement of the same offense, it sets out a separate crime, not just as in the case of section 470 alternative ways in which the same crime can be committed. In the case before us, although appellant arguably committed separate acts signing the checks and then uttering them she did not, thereby, violate more than one statute, but simply committed acts contained in separate subdivisions of a single statute, all of which were simply different ways of violating that statute.[8]
We have found no case permitting multiple forgery convictions, with respect to a single instrument, under comparable circumstances. For instance, in In re Horowitz (1949) 33 Cal.2d 534, 203 P.2d 513, the defendant was charged with forgery and three other offenses after he wrote a will *283 on a piece of paper that was blank except for his mother's signature, procured the signatures of two purported witnesses, and, following his mother's death, instituted proceedings for probate of the forged will. (Id. at p. 536, 203 P.2d 513.) On appeal, the California Supreme Court rejected his argument that he was being improperly punished four times for one act. The court noted that he was charged with, and found guilty of, violating four sections of the Penal Code (§§ 115 [causing to be filed a false will], 132 [offering in evidence a false will], 134 [preparing a false will with intent to allow it to be produced for a fraudulent purpose in a probate proceeding], 470 [forging a will]). It stated: "Petitioner relies upon cases which hold that one who, with reference to the same instrument, is guilty of more than one of the acts denounced by section 470 (e.g., making and uttering a false instrument), is guilty of but one forgery; `notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense.' [Citations.] These cases, however, are clearly distinguishable, for in each of them the above holding, or its substance, was made in answer to the contention that the indictment or information charged more than one offense (i.e., more than one violation of section 470), a mode of pleading formerly not permitted under section 954 of the Penal Code. In none of such cases did the indictment or the information purport to charge, in addition to the offense denounced by section 470 of the Penal Code, another offense disparately defined and denounced by another code section. [Citation.] When (after section 954 was amended to permit such pleading) an indictment charged, in separate counts, violations of section 134 and section 470 of the Penal Code, it was held that `Clearly, two separate offenses are set forth, and it is plain that each offense required proof of facts additional to those involved in the other'; the court rejected defendant's contention that there was but one offense...." (Horowitz, at p. 542, 203 P.2d 513, italics added.) Thus, although Horowitz permits multiple convictions for violations of distinct code sections based on conduct involving a single instrument, it does not stand for the proposition that multiple convictions of forgery are permissible.
Although involving a different offense, People v. Craig (1941) 17 Cal.2d 453, 110 P.2d 403, is also instructive. In that case, the defendant was convicted of two counts of rape based on a single act of intercourse, committed against the will of a 16-year-old girl. Count 1 charged forcible rape under former subdivision 3 of section 261, while count 2 (after alleging it was a different statement of the same offense) charged statutory rape upon a child under the age of consent, in violation of former subdivision 1 of the statute. (Craig, at p. 454, 110 P.2d 403.) In holding that multiple convictions were improper, the California Supreme Court stated: "Under [section 261], but one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the [statute's] subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act." (Craig, at p. 455, 110 P.2d 403.) The court cited with approval a case in which it was said, "`We think the true construction of section 261 to be that thereby the legislature meant merely to put beyond doubt the rule that on an information for rape the things mentioned in the subdivisions could be proven, and would establish the crime. It *284 is not intended to alter or establish a rule of pleading; or to create six different kinds of crime.'" (Craig, at pp. 455-456, 110 P.2d 403.)
The court noted the existence of certain rules or tests for determining whether one or more offenses result from a single act or transaction. It concluded: "Where, as here, the charge and proof disclose a single act of intercourse resulting from force employed upon a minor, but one punishable rape is consummated, for the proof, though dual in character, necessarily crystallizes into one `included' or identical offense." (People v. Craig, supra, 17 Cal.2d at p. 457, 110 P.2d 403.). It explained: "[I]t has been held, by way of illustration, that where one shot is fired and two persons are killed, two punishable homicides result. [Citation.] Likewise, it has been held that where one act or transaction violates the provisions of two statutes, whether of the same or different jurisdictions, it is punishable under both. [Citations.] [¶] All of these illustrations are distinguishable from the situation here confronting the court. In the cited instances, the one act or transaction either injured or affected two or more victims or ran counter to two or more separate and distinct statutes defining different crimes with variable elements. In many instances the violation of these separate statutes was complete at different stages of the commission of the single act or transaction.... But none of the foregoing distinguishable characteristics is here present. There is only one victim. There has been a violation of but one statute.... And, while the proof necessarily varies with respect to the several subdivisions of that section under which the charge may be brought, the sole punishable offense under any and all of them is the unlawful intercourse with the victim." (Id. at pp. 457-458, 110 P.2d 403.)
Although Craig speaks in terms of "punishable offenses," we think it apparent that it proscribes more than one conviction under the circumstances before it, and we find its reasoning pertinent here. Under section 954, a defendant may be convicted of any number of the offenses charged. Since the commission of any one or more of the acts enumerated in section 470, in reference to the same instrument, constitutes but one offense of forgery (e.g., People v. Frank, supra, 28 Cal. at p. 513), it follows that, under section 954, appellant could be charged with multiple counts of forgery with respect to the Staples and Gypsy Rose Antiques incidents, but could be convicted of only one such count with respect to each. Accordingly, two of the four convictions she suffered in connection with those incidents must be vacated. Since her conduct in each incident appears to be more completely covered by subdivision (d) of section 470, we will vacate her convictions on counts V and VI, which involved subdivision (a) of the statute.
III[***]
DISPOSITION
The convictions on counts V and VI, together with the sentences imposed thereon, are vacated. The convictions on the remaining counts are affirmed. The sentence imposed on count XII is also vacated. The matter is remanded to the sentencing court with directions to (1) stay, pursuant to section 654, sentence on either count VIII or count XI; (2) articulate, both on the record and in the abstract of judgment, the statutory or other authority for the fines and penalty assessments imposed on the individual counts, or, if no such authority exists, to strike said fines and assessments; and (3) impose no more *285 than a six-month concurrent jail term on count XII.
WE CONCUR: VARTABEDIAN and LEVY, JJ.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I and III of the Discussion.
[1] All statutory references are to the Penal Code unless otherwise stated.
[2] Valencia, who was jointly charged with appellant, entered into a plea agreement prior to trial. Her case is not before us on this appeal.
[**] See footnote *, ante.
[5] The statute read: "(a) Every person who, with intent to defraud, signs the name of another person, or a fictitious person, knowing that he or she has no authority so to do, to, or falsely makes, alters, forges, or counterfeits, any charter, letters patent, deed, lease, indenture, writing obligatory, will, testament, codicil, bond, covenant, bank bill or note, post note, check, draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for money or property, passage ticket, lottery ticket or share purporting to be issued under the California State Lottery Act of 1984, trading stamp, power of attorney, certificate of ownership or other document evidencing ownership of a vehicle or undocumented vessel, or any certificate of any share, right, or interest in the stock of any corporation or association, or any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquaintance, release, or receipt for money or goods, or any acquaintance, release, or discharge of any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or issuance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or any acceptance or endorsement of any bill of exchange, promissory note, draft, order, or any assignment of any bonds, writing obligatory, promissory note, or other contract for money or other property; or counterfeits or forges the seal or handwriting of another; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above-named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; or who, with intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery. [¶] (b) Upon a trial for forging any bill or note purporting to be the bill or note of an incorporated company or bank, or for passing, or attempting to pass, or having in possession with intent to pass, any forged bill or note, it is not necessary to prove the incorporation of the bank or company by the charter or act of incorporation, but it may be proved by general reputation; and persons of skill are competent witnesses to prove that the bill or note is forged or counterfeited." (Fn.omitted.)
[6] Related statutes (§§ 475, 475a, 476, 484e, 484f, 484g, 484i) were also repealed and enacted in new form. (Stats.1998, ch. 468, §§ 3-15, pp. 2705-2706.)
[7] Subdivision (d) has since been amended to add, just before the semicolon: "or falsifies the acknowledgment of any notary public, or any notary public who issues an acknowledgment knowing it to be false."
[8] Section 245 is an example of a statute that contains greater and lesser included offenses in different subdivisions. (See People v. Bechler (1998) 61 Cal.App.4th 373, 378, 71 Cal. Rptr.2d 532.) Unlike the situation in section 470, however, the subdivision defining the greater offense requires proof of elements that go substantially beyond what is required by the subdivision defining the lesser offense, and the punishment for the two offenses is markedly different. (Compare, e.g., § 245, subd. (a)(2) [person who commits assault with firearm is punishable by up to four years in prison] with § 245, subd. (d)(1) [person who commits assault with firearm on peace officer or firefighter, and who knows or reasonably should know victim is peace officer or firefighter engaged in performance of duties, when victim is so engaged, is punishable by up to eight years in prison].)
[***] See footnote *, ante.
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Case: 12-14894 Date Filed: 04/24/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14894
Non-Argument Calendar
________________________
D.C. Docket No. 9:12-cv-80149-KLR
ROY DIXON,
Plaintiff-Appellant,
versus
BOARD OF COUNTY COMMISSIONERS
PALM BEACH COUNTY, FLORIDA,
PALM BEACH COUNTY PARKS
DEPARTMENT,
ROBERT WEISMAN,
in his individual and official capacity,
JON VAN ARNAM,
in his individual and official capacity,
ERIC CALL,
in his individual and official capacity, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 24, 2013)
Case: 12-14894 Date Filed: 04/24/2013 Page: 2 of 6
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Roy Dixon, proceeding pro se, appeals the district court’s order dismissing
his complaint under 42 U.S.C. § 1983 as barred by res judicata. For the reasons
set forth below, we affirm.
I.
In 2010, Dixon filed an amended complaint against various parties
associated with Palm Beach County, Florida, arguing, inter alia, that he was
retaliated against for engaging in statutorily protected activity by being placed on
suspension from his employment with the county as a park ranger. The named
defendants filed a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6)
(“Rule 12(b)(6)”), and the court dismissed the complaint for failure to state a
claim. In 2011, Dixon filed an amended complaint (“2011 complaint”) in a
separate case, and he raised two claims relating to his termination from his
employment as a park ranger due to his engagement in First Amendment activity.
The district court, however, ordered that complaint stricken, as he had failed to
obtain the court’s consent before filing it.
In January 2012, Dixon filed a complaint (“January 2012 complaint”)
against Palm Beach County Parks Department, the Board of County
Commissioners, Palm Beach County, and four Palm Beach County employees, in
2
Case: 12-14894 Date Filed: 04/24/2013 Page: 3 of 6
their individual and official capacities, specifically, Robert Weisman, Eric Call,
Jon Van Arnam, and Craig Murphy. 1 Dixon raised, inter alia, two claims under
§ 1983 relating to his termination from his employment due to his engagement in
First Amendment activity. The defendants moved to dismiss Dixon’s complaint
under Rule 12(b)(6) as barred by res judicata, and the court agreed, dismissing his
claims with prejudice. Dixon did not appeal.
In February 2012, Dixon filed the instant complaint (“February 2012
complaint”) against the same defendants he named in his January 2012 complaint.
Dixon raised two counts under § 1983 against the defendants, and both claims
were based on his allegation that the defendants terminated his employment due to
his exercise of his constitutional rights under the First Amendment. The district
court again dismissed Dixon’s complaint with prejudice on res judicata grounds.
II.
On appeal, Dixon argues that the district court erred in holding that his
February 2012 complaint was barred on res judicata grounds because no final
judgment on the merits was entered with respect to his 2011 complaint, which was
the first time he had raised claims based on the First Amendment. Rather, the
court ordered that his 2011 complaint be stricken. He also argues the merits of his
First Amendment claims.
1
All of the parties named in Dixon’s January 2012 complaint are collectively referred to
as the “defendants.”
3
Case: 12-14894 Date Filed: 04/24/2013 Page: 4 of 6
As an initial matter, we note that we have appellate jurisdiction over
Dixon’s appeal of the dismissal of his February 2012 complaint. Fed.R.App.P.
4(a) requires that a notice of appeal be filed within 30 days after the judgment or
order appealed from is entered. See Fed.R.App.P. 4(a)(1)(A). However, the
30-day appeal period does not begin to run until a final judgment is entered on a
separate document, pursuant to Fed.R.Civ.P. 58 and 79(a). Leal v. Ga. Dep’t of
Corr., 254 F.3d 1276, 1278 (11th Cir. 2001). The district court’s order dismissing
his February 2012 complaint was entered on June 14, 2012, and Dixon’s notice of
appeal was filed on September 10, 2012. Because the district court failed to enter a
final judgment on a separate document, the judgment was not considered as
entered on the docket, such that the 30-day period for filing a notice of appeal had
begun to run, until 150 days had run from the entry of the court’s order dismissing
his complaint, on June 14, 2012. Fed.R.Civ.P. 58(c)(2). Thus, because Dixon’s
notice of appeal was filed on September 10, 2012, which was within 180 days of
June 14, 2012, his notice of appeal is timely, such that we have appellate
jurisdiction over his appeal. 2
2
We lack jurisdiction, however, to review the order striking Dixon’s 2011 complaint
filed in a separate case before the district court because this appeal as to that order is untimely
under Fed.R.App.P. 4(a)(1)(A). Although the court also failed to enter a separate judgment with
respect to that case, the court’s order was entered on July 26, 2011, and the instant notice of
appeal was not filed within 180 days of that order.
4
Case: 12-14894 Date Filed: 04/24/2013 Page: 5 of 6
We review a grant of a motion to dismiss under Rule 12(b)(6) for failure to
state a claim de novo, accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff. Kizzire v. Baptist
Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006). We also review de novo a
district court’s determination that a claim is barred by res judicata. Id. Pro se
pleadings are held to a less stringent standard than pleadings drafted by attorneys
and, thus, should be liberally construed. Boxer X v. Harris, 437 F.3d 1107, 1110
(11th Cir. 2006).
The doctrine of res judicata bars the filing of claims which were raised or
could have been raised in an earlier proceeding. Ragsdale v. Rubbermaid, Inc.,
193 F.3d 1235, 1238 (11th Cir. 1999). Res judicata bars a claim in a prior case if:
(1) there was a final judgment on the merits rendered by a court that had
jurisdiction; (2) the cases involved the same parties or those in privity with them;
and (3) the same cause of action is involved in both cases. Id. Two cases are
considered to involve the same cause of action if they arise out of the same nucleus
of operative facts or are based upon the same factual predicate. Id. at 1239. A
Rule 12(b)(6) dismissal with prejudice is an adjudication on the merits. Lobo v.
Celebrity Cruises, Inc., 704 F.3d 882, 893 (11th Cir. 2013). The res judicata
consequences of a final, unappealed judgment on the merits are not altered by the
5
Case: 12-14894 Date Filed: 04/24/2013 Page: 6 of 6
fact that the judgment may have been wrong. See Juris v. Inamed Corp., 685 F.3d
1294, 1335 (11th Cir. 2012), cert. denied, 133 S.Ct. 941 (2013).
Here, the doctrine of res judicata bars Dixon from relitigating the claims in
his February 2012 complaint. The February 2012 complaint is identical in all
relevant respects to the January 2012 complaint, as both complaints name the same
defendants and contain the same two claims concerning the defendants allegedly
violating Dixon’s constitutional rights by terminating him for exercising his First
Amendment rights. The district court dismissed the claims in the January 2012
complaint with prejudice on the grounds that they were barred by res judicata, and
this operated as a final judgment on the merits. See Lobo, 704 F.3d at 893.
Further, the district court had jurisdiction under 28 U.S.C. § 1331 to dismiss
Dixon’s claims in his January 2012 complaint, and Dixon does not dispute that the
court had jurisdiction. Because the January 2012 and the February 2012 complaint
involve the same parties and the same cause of action, and a court with jurisdiction
rendered a final judgment with respect to the January 2012 complaint, Dixon’s
February 2012 complaint is barred by res judicata. See Ragsdale, 193 F.3d at
1238.
For the foregoing reasons, we affirm the dismissal of Dixon’s February 2012
complaint on res judicata grounds.
AFFIRMED.
6
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130 N.J. Super. 127 (1974)
325 A.2d 831
ANNA E. RICHARDS ET AL., PLAINTIFF-APPELLANT,
v.
THE UNION BUILDING AND CONSTRUCTION CORP. ET AL., DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued September 16, 1974.
Decided September 30, 1974.
*128 Before Judges COLLESTER, LORA and HANDLER.
*129 Mr. Seymour R. Kleinberg argued the cause for appellant.
Mr. Peter A. Piro argued the cause for respondent (Messrs. Haskins, Robottom & Hack, attorneys).
PER CURIAM.
The trial judge determined that plaintiff Richards' negligence action against defendant Union Building and Construction Corporation was precluded by N.J.S.A. 2A:14-1.1. Plaintiff appeals from the grant of summary judgment to defendant.
The pertinent part of the cited statute reads:
No action * * * in tort, * * * to recover damages * * * for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, * * * shall be brought against any person performing * * * construction of such improvement to real property, more than 10 years after * * * construction.
There is no genuine dispute as to the material facts. Plaintiff's husband had a fatal automobile accident on December 22, 1970. She filed her complaint against defendant on December 12, 1972. A September 19, 1956 contract required defendant to widen the portion of the highway where the accident occurred. Defendant completed this work on August 20, 1957 and the Department of Transportation accepted it on October 21, 1957. Later, under a different contract, defendant performed work on another portion of the highway. It completed this work on December 6, 1960 and the Department of Transportation accepted it on January 25, 1961.
The Department of Transportation accepted defendant's work on the portion of the highway where the accident occurred more than ten years before the accident. Defendant's work on other portions of the highway was accepted less than ten years before the accident occurred but still more than ten years before plaintiff's complaint was filed.
It is settled that road construction is an improvement to real property within the meaning of N.J.S.A. *130 2A:14-1.1. Rosenberg v. North Bergen, 61 N.J. 190, 198 (1972). We are of the view that a contractor who performed work on a portion of a highway accepted more than ten years before the occurrence of an accident thereon is not liable for injury resulting from its negligence in performing the work simply because sometime within ten years of the accident it performed work on a different portion of the same highway.
In any event, a cause of action does not arise if the complaint is not actually filed within ten years of completion and acceptance of the work. The statute provides: "No action * * * shall be brought * * * more than 10 years after * * * construction." Thus, under N.J.S.A. 2A:14-1.1 the date of the accident is not critical. The operative time is that of the filing of the complaint. Since plaintiff did not file her complaint until more than ten years after the acceptance by the Department of Transportation of the last work performed by defendant on any portion of the highway, there was no sustainable cause of action. Summary judgment in favor of the defendant was properly granted.
Affirmed.
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688 F.2d 823
Plachterv.Rollins Protective Services Co.
82-1136
UNITED STATES COURT OF APPEALS Third Circuit
8/4/82
1
E.D.Pa.
AFFIRMED
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9 F.3d 1552
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Jeoung Ok LEE, aka Jeoung Ok Christian, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 92-70153.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 6, 1993.Decided Nov. 2, 1993.
Before: SCHROEDER, FLETCHER, and ALARCON, Circuit Judges.
1
MEMORANDUM*
2
Jeoung Ok Lee, a Korean citizen, petitions for review of the Board of Immigration Appeals' ("BIA" or "Board") dismissal of her appeal from an order of deportation on the grounds of entering into a fraudulent marriage, 8 U.S.C. § 1184(d), and from a denial of waiver of deportation, 8 U.S.C. § 1251. During the deportation hearing Lee moved for a continuance to allow her husband to submit a petition in her behalf to the district director for adjustment of status. The immigration judge ("IJ") denied the motion. Subsequently, the district director denied the petition. The BIA dismissed her appeal from that denial. Asserting pendent jurisdiction, she attempts to appeal this second dismissal in addition to the first upholding the order of deportation. Lee argues that she did not enter into her first marriage with fraudulent intent and that the government failed to meet its burden of proof with respect to intent. She contends that even if deportable, she is statutorily eligible for waiver and merits the exercise of favorable discretion. Lee did not appeal the IJ's denial of voluntary departure.
3
The Board had jurisdiction to review the IJ's decision under 8 C.F.R. §§ 3.1(b)(2), 242.21(a). Our jurisdiction rests on 8 U.S.C. § 1105a(a) (Immigration and Nationality Act). Since the panel does not have jurisdiction to review the BIA's second dismissal,1 we affirm the BIA's first dismissal only.2
I.
4
In 1985, at the age of eighteen, Korean citizen, Jeoung Ok Lee, entered the United States on a "K-1" or "fiancee" nonimmigrant visa. Within a month of her arrival she married her first husband, Nicklous Teegarden ("Teegarden"), an American citizen. Teegarden and Lee met in Korea before she journeyed to the United States. She could not speak English, nor he, Korean. Lee alleges that her older sister, Yang So Lee ("Sunny"), in accordance with Korean custom, arranged the marriage. Teegarden attests, however, that Sunny paid him to marry Lee and that he never intended to enter into a bona fide marriage. Although the plan had been for them to marry in Korea, a Korean marriage broker advised applying for a "K-1" visa instead.
5
After the marriage, Teegarden, Lee, and Sunny lived in the same trailer, but the married couple did not share a bedroom. Although they had sex together on occasion, it was not with the approval of the elder sister. In fact, as soon as their sexual liaisons were discovered, Sunny evicted Teegarden from the trailer and forbade Lee to see him. Several months later Teegarden reported the arrangement he had made with Sunny to the INS. In November, 1986 the INS issued an order to show cause ("OSC") charging Lee with deportability. AR at 186.3
6
Prior to her arrest by the INS, Lee obtained a divorce from Teegarden. While waitressing at her sister's restaurant she met and married American citizen, Scott Christian ("Christian"). Her second marriage took place in October, 1986, also prior to her arrest. Lee and Christian remain married and have two citizen children. Christian filed a petition with the district director to have Lee's status adjusted.
7
During deportation proceedings only two witnesses testified: Teegarden and Christian. Neither Sunny nor Lee testified. A Korean interpreter was present to translate the proceedings. AR at 95. Teegarden testified that Lee knew about the fraudulent nature of their marriage. AR at 132. He admitted to participating fully in the fraud and receiving $3,500 for his services. Prior to the IJ's ruling, Lee moved for a continuance in order to allow Christian to file the petition for adjustment of her status. AR at 160. The motion was denied on the ground that adjustment would be denied as a matter of discretion. The IJ subsequently found Lee deportable. On the basis of the evidence presented to him the IJ concluded that Lee had entered into an arranged marriage but "that the arrangement between Mr. Teegarden, Sunny and [Lee] was conceived in fraud: that there was no intent at the inception of the marriage for [Lee] and Mr. Teegarden to share anything other than a marriage of convenience." AR at 84-85. The IJ also denied Lee the privilege of voluntary departure "in view of the fraud that [had] been perpetrated against the United States." AR at 86. Based on the IJ's finding the district director denied Christian's petition to adjust Lee's status. Blue Brief, Appendix at 2.
8
The IJ ordered Lee deported on April 24, 1987. AR at 78. Christian filed a petition with the district director the same day. After hearing oral argument on July 31, 1991, the BIA rendered its decision on the appeal from deportation on February 4, 1992. AR at 2. In the meantime, on December 2, 1991, the district director denied Christian's petition. The BIA upheld this determination in a separate decision also filed on February 4, 1992. Blue Brief, Appendix at 1 & n. 1. Lee's notice of appeal from the IJ's decision ordering deportation, refusing waiver of exclusion, and denying voluntary departure did not appeal the voluntary departure determination. AR at 74.
II.
9
"In determining the sufficiency of the evidence [for finding a marriage to be fraudulent], judicial review is limited to whether the findings of the immigration judge are supported by 'reasonable, substantial, and probative evidence.' " Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238 (9th Cir.1979), cert. denied, 449 U.S. 828 (1980); see also Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir.1985).
10
Denial of relief from deportation pursuant to 8 U.S.C. § 1251(a)(1)(H), like other "forgiveness provisions," is subject to review for an abuse of discretion. Braun v. INS, 992 F.2d 1016, 1019 (9th Cir.1993). The BIA's factual findings in support of statutory ineligibility are reviewed for substantial evidence. Id. at 1018. This standard "requires that the BIA's conclusions, based on the evidence presented, be substantially reasonable." Id.
III.
11
Lee contests her deportation on the ground of overstaying her "K-1" fiancee visa by asserting that she has fulfilled the requirements of the visa. Section 1184(d) provides for the approval of such visas
12
only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within 2 years before the date of filing the petition, have a bona fide intention to marry and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien's arrival.
13
8 U.S.C. § 1184(d). Even if a couple enters into a valid marriage within the ninety-day period, "[i]t is entirely appropriate for the INS to make inquiry into the marriage to the extent necessary to determine whether it was entered into for the purpose of evading the immigration laws." Pena-Urrutia v. INS, 640 F.2d 242, 244 (9th Cir.1981). A marriage is a sham if the couple did not intend to "establish a life together at the time they were married." Whetstone v. INS, 561 F.2d 1303, 1309 (9th Cir.1977) ("K-1" visa standards) (citing Bark v. INS, 511 F.2d 1200, 1201 (9th Cir.1975) (adjustment of status)); see also Bu Roe v. INS, 771 F.2d 1328, 1331 (9th Cir.1985); Garcia-Jaramillo, 604 F.2d at 1238; Romualdo P. Eclavea, Annotation, Issuance of Visa to Fiancee or Fiance of Citizen Under § 214(d) of Immigration and Nationality Act (8 U.S.C.S. § 1184(d)), 43 A.L.R.Fed. 903 (1979 & Supp.1992). The IJ can look to the "conduct of the parties after marriage ... to the extent it bears upon their subjective state of mind at the time they were married." Bark, 511 F.2d at 1202. Subsequent separation or divorce is not dispositive of intent at the time of marriage. Id.; Matter of Dixon, 16 I. & N. Dec. 335 (BIA 1977).
14
In this case there is no question that one party did not enter into the marriage in good faith. Teegarden admitted that he married for money and had no intention of establishing a life with Lee. Although she did not testify, Lee protests that she did not share this fraudulent intent. She argues that unless the government proves her bad intent as well, the evidence is insufficient to support a finding of a sham marriage and that she is entitled to her "K-1" visa.
15
The terms of Section 1184(d) require the petitioner (not the alien beneficiary) to establish that both parties entered into bona fide marriage. Teegarden, the petitioner in this case, established that a bona fide marriage had not taken place, because he at least had not entered into it with the requisite intent. So long as one party acts in bad faith, it appears the other party's alleged good faith is irrelevant to the Section 1184(d) determination.4 No case lends support to Lee's reading of the provision.5 On the other hand, where, as here, the marriage partners avowed different intentions, the IJ found the partner alleging good faith to lack credibility. See e.g., Garcia-Jaramillo, 604 F.2d at 1238. The IJ could not make such a determination with respect to Lee because she failed to testify. Cf. id. (IJ discredited alien's testimony). His determination of her intent is based instead on inferences drawn from others' testimony. In any event, whether one party's fraudulent intent alone is enough to lose the benefit of Section 1184(d) is not squarely presented here. Though the IJ findings could have been stated more clearly and with greater explanation, he did find that Lee and Teegarden knowingly engaged in a fraudulent marriage. AR at 83-84, 85.6 The BIA concurred. AR at 4-5. Nothing in the record suggests the IJ erred in finding Lee overstayed her "K-1" visa by not complying with its terms. We therefore affirm.
IV.
16
Even if Lee did enter her first marriage with Teegarden in bad faith, she is not disqualified for that reason from seeking waiver of deportability under Section 1251(a)(1)(H). Deportation based on misrepresentation
17
whether willful or innocent, may, in the discretion of the Attorney General be waived for any alien ... who (1) is the spouse ... of a citizen of the United States; and (2) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility ... which were a direct result of that fraud or misrepresentation.
18
8 U.S.C. § 1251(a)(1)(H). The IJ did not rule on Lee's eligibility for "forgiveness" under Section 1251(a)(1)(H). See Braun, 992 F.2d at 1019; Hernandez-Robledo, 777 F.2d at 540. However, the BIA denied waiver of deportation on the grounds that Lee failed to meet the second statutory requirement. AR at 5. Having entered the country on a nonimmigrant visa and failed to adjust status, Lee was determined not to have been in possession of an immigrant visa or "equivalent document."
19
Lee argues that her "K-1" visa is the functional equivalent of an immigrant visa because "the consul treats the application as if it were one for an immigrant visa." Blue Brief at 24. She cites treatises, manuals and regulations to confirm the widely acknowledged similarity between "K-1" visas and other immigrant visas. We have held an alien to be statutorily ineligible for this relief because she entered on a fiancee, not an immigrant visa. Caddali v. INS, 975 F.2d 1428, 1431 (9th Cir.1992). Lee is therefore statutorily ineligible for waiver of deportation.
20
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
This dismissal should be the subject of a separate appeal
2
Neither § 1105a, nor a theory of pendent jurisdiction vests this court with jurisdiction to review the district director's denial of Lee's husband's immediate relative petition. Kuh v. INS, 758 F.2d 370, 371 (9th Cir.1985) (no jurisdiction to review an order adjusting status because "direct review of immigration matters is limited by 8 U.S.C. § 1105a(a) to the review of final orders of deportation entered during the course of proceedings conducted pursuant to 8 U.S.C. § 1252(b)")
Moreover, to the extent that Lee seeks to establish a common nucleus of facts by challenging before the BIA the IJ's denial of her motion to continue in order to file the immediate relative petition, the attempt is misguided. The IJ has the discretion to grant an alien continuances. 8 C.F.R. § 242.13. For a judge to abuse his discretion in denying a continuance, the alien must show that she suffered prejudice as a result of the denial. Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1394-95 (9th Cir.1985) (continuance requested to submit documents to State Department denied because alien not eligible for underlying relief). No prejudice resulted from the IJ's denial of Lee's motion to continue. The district director denied the petition.
3
Despite the BIA's reference to other grounds for exclusion, AR at 4, the OSC charged Lee with overstaying her "K-1" visa under U.S.C. § 1251(a)(2) [now § 1251(a)(1)(A) ] rather than deportability under 8 U.S.C. § 1182(a)(19). See Limsico v. INS, 951 F.2d 210, 212 (9th Cir.1991). The procedural posture is significant in allocating the burden of proof. Had Lee been charged under Section 1182(a)(19) for misrepresentation, it would have been the INS's burden to prove that she "procured her visa by fraud or willful misrepresentation of a material fact." Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir.1985)
4
It is relevant to other determinations, however, see supra note 3
5
Lee relies on Matter of Tawfix, Int. Dec. 3130 (BIA 1990), to dispute this plain reading of Section 1184(d). She contends that the mere inference of bad faith on her part is insufficient to find a sham marriage. The government correctly observes that Tawfix is inapposite. Rather than requiring a showing of bad faith on both partners' parts before refusing "K-1" status, the decision relates to the evidence needed by a district director before denying a petition for adjustment of status. Tawfix, Int. Dec. 3130 at 6 ("in order to find that an alien has attempted to enter into a marriage for the purpose of evading the immigration laws, the evidence of such an attempt must be documented in the alien's file")
6
The IJ found it particularly probative that Sunny threw Teegarden out of the house for "exercising the husband's prerogative." AR at 84. As revealing as that evidence may be about Sunny's intentions, it could be expanded to substantiate Lee's claim that she married in good faith and exercised the prerogatives of a wife. That these sexual encounters were rare is not a disqualification. We have held that the nature of a couple's sex life is not determinative of their intentions. See Whetstone, 561 F.2d at 1305
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470 F.2d 1344
23 A.L.R.Fed. 977, Fed. Sec. L. Rep. P 93,692
Ernest KLEIN, Plaintiff-Appellant,v.SHIELDS & COMPANY and Warner G. Cosgrove, Jr., Defendants-Appellees.
No. 21, Docket 72-1245.
United States Court of Appeals,Second Circuit.
Argued Sept. 27, 1972.Decided Dec. 8, 1972.
Ernest Klein, New York City, plaintiff-appellant, pro se.
Charles E. D. Jurrist, New York City (Leonard Joseph and Dewey, Ballantine, Bushby, Palmer & Wood, New York City, on the brief), for defendants-appellees.
Before HAYS, OAKES and TIMBERS, Circuit Judges.
TIMBERS, Circuit Judge:
1
Appellant Ernest Klein appeals from orders entered in the Southern District of New York, Harold R. Tyler, District Judge, which (1) granted appellees' motion to dismiss with prejudice Klein's pro se1 complaint which alleged violations of the federal securities laws and breach of contract; and (2) awarded $600 attorney's fees to defendants. For the reasons stated below, we affirm the dismissal of the complaint on the ground that appellant's claims are barred by the applicable statute of limitations; and we remand the action to the district court with directions to make appropriate findings of fact and conclusions of law with respect to the award of attorney's fees.
I.
2
The transaction leading to the present litigation took place in 1959. In August of that year, appellant opened an account with appellee Shields & Co. (Shields), a New York brokerage firm and a member of the New York Stock Exchange. He thereafter directed Shields to purchase a large amount of designated securities, and to deliver them against payment to a specified bank branch. Shields sent, and appellant received, written confirmation of the purchases.
3
Upon appellant's failure to pay for the securities, Shields in 1960 brought suit against appellant in the New York County Supreme Court on a claim of breach of contract, alleging a $7,839.38 loss on the resale of the purchased securities. Appellant counterclaimed for $16,000, alleging that Shields had breached the contract by refusing to deliver the securities appellant had purchased. Shields' demand for a bill of particulars was ignored. In view of the small amount of its claim against appellant, Shields ceased active prosecution of the action in 1961.
4
The action remained in this dormant condition until March 1971, when appellant noticed and took the deposition of Shields (through appellee Cosgrove). Shortly thereafter, at appellant's request, a meeting was held between Shields' attorney and appellant. At that meeting, appellant offered a "settlement"; in effect, his proposal was that, in exchange for Shields' agreement to satisfy appellant's counterclaim and to withdraw Shields' complaint, appellant would forego the commencement of a new action in the federal court. Shields understandably rejected appellant's "offer". The instant action followed.
5
Appellant's complaint, filed in the district court on July 12, 1971, basically restated his 1960 state court counterclaim, with the addition of allegations of fraud in violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78j (1970), and Section 17(a) of the Securities Act of 1933, 15 U.S.C. Sec. 77q (1970). Jurisdiction was asserted under Section 27 of the 1934 Act, 15 U.S.C. Sec. 78aa (1970), with the state claims said to be within the district court's pendent jurisdiction.
6
The district court dismissed the complaint with prejudice. It held that the complaint was fatally deficient in (1) its insufficient allegations of fraud; (2) its failure to state a claim upon which relief could be granted under either the Securities Act of 1933 or the Securities Exchange Act of 1934, and the consequent absence of any basis for pendent jurisdiction with respect to the state claims; and (3) its claims being barred by the running of "every conceivably applicable statute of limitations". The court subsequently awarded to appellees partial attorney's fees in the amount of $600.
II.
7
It is clear that, if it were not for the injection of the allegations of fraud in the instant complaint, the action would be barred by the New York statute of limitations relating to actions on contracts. N.Y.Civ.Prac.Law Sec. 213(2) (McKinney 1972) (6 years from date on which cause of action arose). The presence of the fraud claim, however, detours that result only momentarily.
8
The provisions of the federal securities laws upon which appellant's federal claims are predicated have no specific limitations provisions. We therefore look to the applicable state statute. Klein v. Bower, 421 F.2d 338, 343 (2 Cir. 1970). Under New York law, an action based upon fraud must be brought within six years of the time the plaintiff "discovered the fraud, or could with reasonable diligence have discovered it", whichever is earlier. N.Y.Civ.Prac. Law Sec. 213(9) (McKinney 1972). (emphasis added). That section must be read with N.Y.Civ.Prac.Law Sec. 203(f), which provides that, where a limitation period is to run from the time the fraud was or should have been discovered, suit must be brought within two years of the actual or imputed discovery. Consequently, appellant's suit is time barred unless he did not discover, or with reasonable diligence could not have discovered, the alleged fraud prior to March 1969 (two years before commencement of the instant action).2 Hoff Research & Dev. Lab., Inc. v. Philippine National Bank, 426 F.2d 1023, 1025-26 (2 Cir. 1970); Klein v. Auchincloss, Parker & Redpath, 436 F.2d 339, 341 (2 Cir. 1971).
9
We are satisfied that appellant with reasonable diligence could have discovered the alleged fraud as early as 1960. The transaction underlying the instant claim is in all respects the same as that upon which appellant's 1960 state court counterclaim was based. Cf. Klein v. Auchincloss, Parker & Redpath, supra. At that point in time, at least the possibility of fraud should have been apparent to appellant; and the opportunity to inquire further, by taking Shields' deposition through its employees, of course was available. That this would have provided whatever further insight was necessary is manifested by appellant's contention that his knowledge of fraudulent conduct did not arise until March 1971 when the deposition of appellee Cosgrove was taken.
10
We hold that constructive knowledge as of 1960 may be imputed to appellant. As in Klein v. Bower, supra, 421 F.2d at 343, "the statutory period began to run then and did not await appellant's leisurely discovery of the full details of the alleged scheme."3 We further hold that the district court did not abuse its discretion in refusing to exercise pendent jurisdiction over the similarly time-barred state law claims. UMW v. Gibbs, 383 U.S. 715, 725-27 (1966); Ryan v. J. Walter Thompson Co., 453 F.2d 444, 446 (2 Cir. 1971), cert. denied, 406 U.S. 907 (1972).
11
Since the statute of limitations is a complete bar to the action, it is not necessary for us to consider the correctness of the district court's conclusion that appellant failed to state a federal claim upon which relief could be granted.
III.
12
The remaining question is the propriety of the district court's award to appellees of $600 in attorney's fees.
13
Following the court's dismissal of the complaint, appellees filed a motion for attorney's fees in amount of $4,000. On February 1, 1972, the court entered an order awarding $600 attorney's fees as part of the costs of the action.
14
Section 11(e) of the Securities Act of 1933, 15 U.S.C. Sec. 77k(e) (1970), provides in pertinent part:
15
"In any suit under this or any other section of this subchapter the court may, in its discretion, require an undertaking for the payment of the costs of such suit, including reasonable attorney's fees, and if judgment shall be rendered against a party litigant, upon the motion of the other party litigant, such costs may be assessed in favor of such party litigant (whether or not such undertaking has been required) if the court believes the suit or the defense to have been without merit, in an amount sufficient to reimburse him for the reasonable expenses incurred by him, in connection with such suit, such costs to be taxed in the manner usually provided for taxing of costs in the court in which the suit was heard." (emphasis added).
16
This provision consistently has been held to require a specific finding by the district court that the action was "without merit", often stated in terms of "bordering on frivolity" and not merely unconvincing. Can-Am Petroleum Co. v. Beck, 331 F.2d 371, 374 (10 Cir. 1964); Katz v. Delka Research Corp., 295 F.Supp. 647, 649 (S.D.N.Y.1968), modified on other grounds sub nom. Katz v. Amos Treat & Co., 411 F.2d 1046, 1056 (2 Cir. 1969). In Oil & Gas Income, Inc. v. Trotter, 395 F.2d 753 (5 Cir. 1968), urged by appellees as precedent for the granting of attorney's fees under Sec. 11 (e), the award was allowed only following a remand for the specific purpose of findings of fact and conclusions of law by the district court with respect to the "frivolity" of the complaint. Here, we have not had the benefit of such findings and conclusions. Consequently, on the present record we are unable to determine whether the award of attorney's fees was clearly erroneous.
17
The dismissal of the complaint is affirmed. The action is remanded to the district court with directions to make appropriate findings of fact and conclusions of law with respect to the award of attorney's fees.
18
Affirmed in part; remanded in part.
1
Appellant should not be confused with the typical pro se plaintiff. He is no stranger to the courts of this Circuit. His litigious history has evoked pointed comment. See, e. g., Klein v. Spear, Leeds & Kellogg, 306 F.Supp. 743, 745-46 (S.D.N.Y.1969); Klein v. H. N. Whitney, Goadby & Co., 341 F.Supp. 699, 702 (S.D.N.Y.1971)
2
The more favorable ten year period relating to general equity actions for causes of action occurring prior to 1963, N.Y. Civ.Prac.Act Sec. 53, made applicable by N.Y.Civ.Prac.Law Sec. 218(b) (McKinney 1972), would govern here only if the claim alleged constructive fraud. On a claim of actual fraud, the provisions of N.Y.Civ.Prac.Law Secs. 213(9) and 203 (f) apply. McCabe v. Gelfard, 58 Misc.2d 497, 295 N.Y.S.2d 583 (Sup.Ct.Kings Co. 1968), vacating 57 Misc.2d 12, 291 N.Y. S.2d 261 (Sup.Ct.Kings Co.1968)
3
We note also that a like result could be reached on the ground that allegations of fraud must be stated with particularity. Fed.R.Civ.P. 9(b). Shemtob v. Shearson, Hammill and Co., 448 F.2d 442, 444-45 (2 Cir. 1971). Appellant's mere conclusory allegations of fraud cannot support a federal cause of action
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Opinion issued March 22, 2012
In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00879-CV
———————————
CHCA Woman’s Hospital, L.P. d/b/a The Woman’s Hospital of Texas and
Woman’s Hospital of Texas, Inc., Appellants
V.
Scott Lidji
and Angela Lidji, As Next Friends of R.L., a Minor, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2011-47867
O P I N I O N
Appellees,
Scott and Angela Lidji, as next friends of their
minor daughter, R.L. (“Lidji”), sued CHCA Woman’s
Hospital, L.P. d/b/a The Woman’s
Hospital of Texas and Woman’s Hospital of Texas, Inc. (collectively, “CHCA”)
for medical malpractice arising out of complications following R.L.’s
birth. Lidji
nonsuited his claims with four days remaining in the 120-day time period for
serving expert reports. Over two years
later, Lidji re-filed suit against CHCA and
simultaneously served an expert report.
CHCA moved to dismiss, contending that the report was untimely pursuant
to Civil Practice and Remedies Code section 74.351. The trial court denied the motion to
dismiss. On interlocutory appeal, CHCA
contends that the trial court erroneously denied its motion to dismiss because Lidji’s nonsuit did not toll the 120-day time period, and,
thus, the expert report, served more than two years after Lidji
first filed an original petition against it, was untimely.
We
affirm.
Background
Twins
R.L. and J.L. were born prematurely at CHCA on January 21, 2007, and they both
spent time in the Neonatal Intensive Care Unit (“NICU”). Although J.L.’s development progressed
normally while he was in the NICU, R.L. had numerous complications and
ultimately suffered “permanent neurological damage and severe developmental
impairment.”
Lidji first filed a health care liability claim against
CHCA on R.L.’s behalf on April 2, 2009. Lidji did not serve an expert report at this time. On July 27, 2009, 116 days after Lidji filed his original petition against CHCA, he nonsuited
his claims. At this point in time, four
days remained in the statutory 120-day time period for serving expert reports
following the filing of Lidji’s original petition,
and Lidji had not yet served a report on CHCA.
More
than two years later, on August 15, 2011, Lidji filed
a health care liability claim against CHCA and several other medical
practitioners.[1] Lidji
simultaneously served CHCA with the expert report of Dr. Houchang
D. Modanlou, a neonatologist.
CHCA
objected to the expert report and moved to dismiss the claims against it.[2] CHCA argued that Lidji’s
expert report was untimely because Lidji did not
serve the report until he filed the second suit against CHCA following his
earlier nonsuit, more than two years after he initially filed an original petition
against CHCA. CHCA argued that the
statutory 120-day time period for serving an expert report began running on the
day that Lidji first filed his original petition,
April 2, 2009, and was not tolled when Lidji
nonsuited his claims with four days remaining before the time period expired. Thus, CHCA argued, the 120-day time period
expired on July 31, 2009, even though no lawsuit was pending against CHCA at
the time. CHCA contended, “Plaintiffs’
effort to re-file their healthcare liability claim against [CHCA] does not cure
the lack of an expert report being served within 120-days of Plaintiffs’ filing
their original petition on April 2, 2009.”
In
response, Lidji argued that his nonsuit tolled the
running of the 120-day time period until he re-filed suit against CHCA, which,
instead of triggering a new 120-day window for serving an expert report,
triggered the time remaining from his original 120-day time period: four days.
Lidji argued that, considering the language in
other sections of Chapter 74, it was clear that the Legislature intended for
the 120-day time period to run only when a lawsuit was actively pending. He contended that because he filed the second
suit and simultaneously served the expert report on CHCA, he served the report
on the day the expert-report time period resumed running following the nonsuit,
and, thus, he timely served CHCA with the report.
The
trial court ultimately overruled CHCA’s objection to the expert report as
untimely and denied CHCA’s motion to dismiss.
This interlocutory appeal followed.
See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(9) (Vernon Supp. 2011) (allowing
interlocutory appeal from district court order that “denies all or part of the
relief sought by a motion under [Civil Practice and Remedies Code] Section
74.351(b)”).
Standard of Review
Generally,
we review a trial court’s ruling on a section 74.351(b) motion to dismiss for
an abuse of discretion. Univ. of Tex. Health Sci.
Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied). Here,
however, the question at issue—whether a nonsuit tolls the running of the
120-day expert report time period—is a question of law involving statutory
interpretation. We review questions of
law de novo. Id.; see also Stroud v. Grubb,
328 S.W.3d 561, 563 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“The
resolution of this appeal is limited to purely statutory interpretation, and
thus we review the trial court’s ruling de novo.”).
The
primary purpose of construing a statute is to determine and give effect to the
Legislature’s intent. See City of San Antonio v. City of Boerne,
111 S.W.3d 22, 25 (Tex. 2003); Fitzgerald
v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864, 865 (Tex. 1999). When determining
this intent, we look first to the plain language of the statute, for “it is a
fair assumption that the Legislature tries to say what it means, and therefore
the words it chooses should be the surest guide to legislative intent.” Fitzgerald,
996 S.W.2d at 866; see also City of
Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008) (“[W]e construe the
statute’s words according to their plain and common meaning, unless a contrary
intention is apparent from the context, or unless such a construction leads to
absurd results.”) (citations omitted). We may also consider the object the
Legislature sought to attain, the circumstances under which the Legislature
enacted the statute, the legislative history, former statutory provisions, and
the consequences of a particular construction.
Tex. Gov’t Code
Ann. § 311.023(1)–(5) (Vernon 2005).
We
presume that the Legislature intends for the entire statute to be effective and
that its application yield a just and reasonable
result. Stroud, 328 S.W.3d at 563; Gutierrez,
237 S.W.3d at 873; see also Tex. Gov’t Code Ann. § 311.021(2)–(3) (Vernon 2005). We read every word, phrase, and expression in
a statute as if it were deliberately chosen and we
likewise presume that words excluded from the statute are done so
purposefully. Town Hall Estates-Arlington, Inc. v. Cannon,
331 S.W.3d 793, 795 (Tex. App.—Fort Worth 2010, no pet.). When determining legislative intent, we do
not examine a term or provision in isolation, but we instead read the
particular statute as a whole. See State ex rel. State Dep’t
of Highways & Pub. Transp.
v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Stroud, 328 S.W.3d at 563; see
also Gutierrez, 237 S.W.3d at 873 (“Chapter 74, in its entirety, rather
than provisions in isolation, must be considered, and meaning given to each
provision consistent with all others.”).
Timeliness of Expert Report When Plaintiff Nonsuits
In
its sole issue, CHCA contends that the trial court erred in denying its motion
to dismiss Lidji’s claims against it because Lidji failed to timely serve an expert report. Specifically, CHCA contends that the trial
court erroneously concluded that Lidji’s nonsuit
tolled the running of the statutory 120-day time period for serving expert
reports until he re-filed his health care liability claims against CHCA.
Civil
Practice and Remedies Code section 74.351(a) provides:
In a health care liability
claim, a claimant shall, not later than the 120th day after the date the
original petition was filed, serve on each party or the party’s attorney one or
more expert reports, with a curriculum vitae of each expert listed in the
report for each physician or health care provider against whom a liability
claim is asserted.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon
2011). A claimant may extend the 120-day
period by written agreement of the affected parties. Id. If the claimant does not serve the expert
report within the statutory time period, the trial court, on motion of the
health care provider, shall “dismiss[] the claim . . . with
prejudice to the re-filing of the claim.”
Id.
§ 74.351(b). “The
legislative purpose [of section 74.351] is to remove unwarranted delay and
expense, to accelerate the disposition of non-meritorious cases, and to give
hard and fast deadlines for the serving of expert reports.” Runcie v. Foley, 274 S.W.3d 232, 234 (Tex. App.—Houston [1st Dist.]
2008, no pet.).
Texas
Rule of Civil Procedure 162 provides, “At any time before the plaintiff has
introduced all of his evidence other than rebuttal evidence, the plaintiff may
dismiss a case, or take a non-suit, which shall be entered in the
minutes.” Tex. R. Civ. P. 162. A
party has an “absolute right” to file a nonsuit. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A voluntary nonsuit “extinguishes a case or
controversy from the moment the motion for nonsuit is filed or an oral motion
is made in open court” and it “renders the merits of the nonsuited case
moot.” Id. (quoting Univ. of Tex.
Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d
98, 100 (Tex. 2006) (per curiam) and citing Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex.
2008)). Section 74.351 does not address
what effect, if any, a claimant’s nonsuit has on the 120-day time period for
serving expert reports, nor does it expressly allow for tolling of the 120-day
time period.
The
Fourteenth Court of Appeals addressed whether a claimant’s nonsuit, taken after
the 120-day period had already expired, restarts the expert report “clock” and
entitles the claimant to a new 120-day time period in Mokkala v. Mead. See 178 S.W.3d 66, 69–70 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied).
In Mokkala,
the claimants filed suit but did not serve their expert report within the
120-day time period. Id. at 68. The claimants nonsuited their claims and then
filed the same claims against the same defendants in a different cause
number. Id. The defendants moved to
dismiss in the second suit on the ground that the expert report was not filed
within 120 days after the claimants first filed their health care liability claims. Id.
at 69–70. The trial court denied the
defendants’ motion. Id. at 68. On appeal, the claimants argued that their
nonsuit placed them “in the same position they would have been [in] had they
not brought the 2003 case, i.e., the
deadline for serving their expert report was 120 days from the date they filed
the 2004 lawsuit.” Id. at 70.
The Fourteenth Court held that “the
120-day period set forth in section 74.351(a) runs from the date the Meads
filed the first petition asserting their health care liability claim, a period
which, in this case, had expired before the Meads nonsuited their claims
against the health care providers.” Id. at 68. The court reasoned that allowing a claimant
to receive an entirely new 120-day time period for serving expert reports
following a nonsuit “would not only be inconsistent with the plain language of
the statute, but also with the circumstances under which the legislature
enacted the statute, the object the legislature sought to obtain, and the
legislative history of chapter 74 . . . .” Id. at 74. The court
noted that, in enacting section 74.351, the Legislature “removed the provisions
[of former Article 4590i] permitting a nonsuit if an expert report was not
filed 180 days after the plaintiff filed the claim.” Id. at 75. In
concluding that its interpretation of section 74.351 did not conflict with
Texas Rule of Civil Procedure 162, which governs nonsuits, the court pointed
out that “[t]he plaintiff controls when she files a petition alleging a health
care liability claim, thereby triggering the commencement of the 120
[day]-period within which she must serve the expert report. Subject only to the statute of limitations, a
plaintiff can therefore wait to file a petition until she has obtained, and can
serve, the expert report.” Id. at 73. If a plaintiff were allowed to completely
restart the expert report time period each time he filed a nonsuit and then subsequently
re-filed that same claim, this practice “could effectively expand the 120-day
period to well over two years,” which is “inconsistent with the policies,
goals, and statutory provisions” of Chapter 74.
Id. at 76; see also Daughtery
v. Schiessler, 229 S.W.3d 773, 775 (Tex.
App.—Eastland 2007, no pet.) (“If we were to hold as the plaintiffs suggest,
medical malpractice claimants would be able to file a petition, take a nonsuit anytime prior to the health care provider’s filing of a
motion to dismiss, file another petition, take another nonsuit, etc. until the
running of limitations. We do not
believe the legislature intended such a result.”).
In a footnote, the Mokkala court explicitly noted that “the
120-day period expired before the Meads nonsuited their claims against the
health care providers.” Mokkala, 178
S.W.3d at 68 n.3.
As a result, the court stated that it “need not decide whether filing of
a nonsuit before the expiration of the 120-day period would toll the 120 days
for the period that elapses between the filing of the nonsuit and the re-filing
of the same health care liability claim.”
Id.
Since Mokkala, several intermediate
courts of appeals, including this one, have addressed the effect of a nonsuit
on the 120-day time period when the claimant nonsuited before the expiration of the 120-day period. See
Estate of Allen ex rel. Allen v. Scott & White Clinic, No.
03-08-00576-CV, 2011 WL 2993259, at *3–5 (Tex. App.—Austin July 22, 2011, no
pet.) (mem. op.); Cannon,
331 S.W.3d at 794; White v. Baylor All
Saints Med. Ctr., No. 07-08-0023-CV, 2009 WL 1361612, at *1–2 (Tex.
App.—Amarillo May 13, 2009, pet. denied) (mem. op.); Runcie, 274 S.W.3d at 235–36. In each of these cases, the courts relied on Mokkala and
concluded that, even when the claimant nonsuits before the expiration of the
120-day period, the claimant’s subsequent re-filing of the claim does not
“restart” the time period and does not entitle the claimant to a new 120-day
period. See Allen, 2011 WL 2993259, at *5; Cannon, 331 S.W.3d at 796; White,
2009 WL 1361612, at *1–2; Runcie, 274
S.W.3d at 236.
In all of these cases, the total
time period in which a health care liability claim was pending before service
of an expert report—combining the pendency of the first suit and the second
suit following the nonsuit—exceeded 120 days.[3] For example, in Runcie, the claimant filed suit, nonsuited his claim on the 96th
day after he filed his original petition, re-filed his claim over a year later,
and served his expert report 93 days after he filed the second suit. See
274 S.W.3d at 236.
Thus, a health care liability claim was pending for a total of 189 days
before the claimant served an expert report.
See id. (noting
that claimant “seeks to completely re-start the 120-day period”). We concluded that the claimant did not timely
serve his expert report. See id.; see also Allen, 2011 WL 2993259, at *2 (nonsuit taken on day 118,
claimant re-filed suit four months later, expert report served four days after
re-filing; thus, claim pending for 122 days before service); Cannon, 331 S.W.3d at 794 (nonsuit taken
on day 118, claimant re-filed suit five months later, expert report served
twelve days after re-filing; claim pending for 130 days before service).
This case is factually
distinguishable. Lidji
nonsuited his original claim against CHCA on the 116th day after he filed his
original petition. At this point, four
days remained in the 120-day time period.
More than two years later, and still within the applicable statute of
limitations, Lidji re-filed his claim against CHCA
and simultaneously served the expert report of Dr. Houchang
D. Modanlou.
Thus, the total time in which a health care liability claim was actively
pending against CHCA before the service of an expert report—considering both the
pendency of Lidji’s first suit and Lidji’s second suit following the nonsuit—equaled 117 days.
Although CHCA is correct that
section 74.351(a) does not take into account the effect of a nonsuit, we note
that the Texas Supreme Court has held, in the default judgment context, that
the defendant’s failure to appear after proper service of citation tolled the
120-day time period for serving an expert report until the defendant made an
appearance. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008)
(per curiam).
Thus, the supreme court has recognized that the
expert report deadline may, under some circumstances, be tolled,
even though the statute is silent regarding tolling. See id.
CHCA’s interpretation of section
74.351—that the statute does not allow for tolling at all—would essentially
limit a claimant’s ability to nonsuit and re-file his claims to the first 120
days following the filing of his original petition. The language of section 74.351 does not limit
the claimant’s “absolute right” to a nonsuit in such a manner. See
Travelers Ins. Co., 315 S.W.3d at 862 (stating that plaintiff has “absolute
right” to file nonsuit).
If a claimant is allowed the
unfettered ability to nonsuit a health care liability claim, he would
essentially be able to continuously file suit, nonsuit just before the 120-day
time period expired, and re-file suit up until the running of limitations,
which thwarts the Legislature’s intent in creating the expert report
deadline: “to remove unwarranted delay
and expense, to accelerate the disposition of non-meritorious cases, and to
give hard and fast deadlines for the serving of expert reports.” Runcie,
274 S.W.3d at 234; see also Daughtery, 229 S.W.3d at 775 (noting that, if
claimant’s nonsuit after expiration of 120-day period could “restart” time
period, claimant “would be able to file a petition, take a nonsuit anytime prior to the health care provider’s filing of a
motion to dismiss, file another petition, take another nonsuit, etc. until the
running of limitations”). Mokkala and its
progeny, however, amply safeguard the Legislature’s intent. The Mokkala court expressly held that re-filing a health care
liability claim after an earlier nonsuit does not “restart the 120-day period”
and does not provide the claimant with an additional 120 days in which to serve
his expert report. 178 S.W.3d at 73; see also Cannon, 331 S.W.3d at 796 (“We
hold that a claimant who nonsuits healthcare liability claims asserted against
a particular healthcare provider and subsequently refiles
the same healthcare liability claims against the same healthcare provider does
not restart the 120-day time period for the service of an expert report and a
curriculum vitae on that healthcare provider.”); Runcie, 274 S.W.3d at 236 (“Here, appellant seeks to completely
re-start the 120-day period. Thus, the
holding in Mokkala,
that ‘refiling a previously nonsuited health care
liability claim fails to restart the 120-day period,’ is squarely
applicable.”).
Lidji does not
argue that upon re-filing his claims against CHCA following his earlier nonsuit
he was entitled to a new 120-day time period for serving CHCA with an expert
report. Instead, he contends that his
earlier nonsuit essentially stopped the expert report “clock” at the date of
the nonsuit, and, upon re-filing his health care liability claim,
he was entitled solely to the remaining time left in the 120-day period to
serve his report on CHCA. Thus, he
contends that, because he nonsuited his first claim on the 116th day after
filing his original petition, when he re-filed his claim he had to serve CHCA
with his expert report within four days of re-filing.
We agree with Lidji’s
interpretation of section 74.351. Such a
construction protects both the claimant’s right to nonsuit and reduces abuse of
the right to nonsuit. This
interpretation also ensures that the claimant receives the full 120 days, to
which he is statutorily entitled, to serve an expert report.
Adopting CHCA’s construction of
section 74.351 creates the potential situation where the 120-day period will
expire when there is no health care liability claim currently pending. Given the Legislature’s specific requirement
that a claimant serve an expert report “on each party or the party’s
attorney,” the possibility of requiring the claimant to serve an expert report
when no lawsuit is pending to avoid dismissal of his claim is an absurd
result. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (emphasis added); compare id. (requiring service of expert report on party or party’s
attorney), with id. § 74.051(a)
(Vernon 2011) (requiring claimant to provide pre-suit notice of claim to “each
physician or health care provider against whom such claim is being made”); see also Carroll v. Humsi,
342 S.W.3d 693, 698 (Tex. App.—Austin 2011, no pet.) (“Carroll is correct in
observing that section 74.351, subsection (a), contemplates that a claimant
cannot satisfy the expert-report requirement as to a physician or health care
provider unless and until the physician or provider is also made a
party . . . .”); Poland
v. Ott, 278 S.W.3d 39, 48 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied) (“[S]ection 74.351(a)
speaks in terms of service [of the expert report] on a party or the party’s
attorney, and it uses the term ‘defendant’ for the physicians and health-care
providers whom the expert report implicates.
One is not a ‘party’ or a ‘defendant’ until a claim is asserted against
one in a suit.”) (emphasis in original).
We conclude that the claimant’s nonsuit,
filed prior to the expiration of section 74.351’s 120-day time period for
serving expert reports, tolls the running of the 120-day period until the
claimant re-files his claims, at which point the claimant has the time
remaining from the 120-day period to serve the defendant with his expert
report. Because Lidji,
who nonsuited on the 116th day after he filed his original petition and had
four days remaining in the 120-day time period, simultaneously served CHCA with
an expert report upon re-filing his health care liability claim, we hold that Lidji timely served his expert report and that the trial
court correctly denied CHCA’s motion to dismiss.
We overrule CHCA’s sole issue.
Conclusion
We
affirm the judgment of the trial court.
Evelyn
V. Keyes
Justice
Panel
consists of Justices Keyes, Bland, and Sharp.
[1] We note that there is not a statute of
limitations issue in this case. Civil
Practice and Remedies Code section 74.251(a) provides that “minors under the
age of 12 years shall have until their 14th birthday in which to file, or have
filed on their behalf, the [health care liability] claim,” subject to section
74.251(b), which provides that “[a] claimant must bring a health care liability
claim not later than 10 years after the date of the act or omission that gives
rise to the claim.” Tex. Civ. Prac.
& Rem. Code Ann. § 74.251(a)–(b) (Vernon 2011). Lidji filed his
second suit four-and-one-half years after R.L.’s birth, well within the
limitations period.
[2] The other defendants, Dr. William
Scott Jarriel, Dr. Karen T. Deville, Dr. Brenda H.
McIntyre, Dr. Deborah Selma Enad de Guzman, and
Medical Center Neonatology Associates, P.A., did not join CHCA’s motion. These defendants are not parties to this
interlocutory appeal.
[3] In White
v. Baylor All Saints Medical Center, the Amarillo Court of Appeals did not
include in its opinion the relevant filing, nonsuit, re-filing, or service of
the expert report dates. The opinion
merely stated:
White had sued
Baylor and then moved to non-suit that action before tendering an expert’s
report. A like suit was initiated
several months later against the same defendant and involving the same
actors. Within days of initiating the
second proceeding, White served her expert’s report upon Baylor. No one disputes that the date upon which the
report was eventually served exceeded 120 days from the date White commended
the first action against Baylor.
White v. Baylor All Saints Med. Ctr., No. 07-08-0023-CV, 2009 WL
1361612, at *1 (Tex. App.—Amarillo May 13, 2009, pet. denied).
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
7-21-1998
United States v. Lake
Precedential or Non-Precedential:
Docket 97-7462
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998
Recommended Citation
"United States v. Lake" (1998). 1998 Decisions. Paper 165.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/165
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Filed July 21, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-7462
UNITED STATES OF AMERICA
v.
HILTON A. LAKE
Hilton A. Lake,
Appellant
ON APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
(D.C. Criminal No. 96-cr-00161)
Argued March 30, 1998
Before: BECKER, Chief Judge, COWEN, and ALITO,
Circuit Judges
(Opinion Filed: July 21, 1998)
Thurston T. McKelvin
Federal Public Defender
Patricia Schrader-Cooke (Argued)
Asst. Federal Public Defender
P.O. Box 3450
Christiansted, VI 00822
Attorney for Appellant Hilton Lake
James A. Hurd, Jr.
United States Attorney
Kim L. Chisholm (Argued)
Assistant U.S. Attorney
5500 Veterans Drive, Suite 260
Charlotte Amalie
U.S. Virgin Islands 00802-6424
Attorneys for Appellee
OPINION OF THE COURT
ALITO, Circuit Judge
This is an appeal from a judgment in a criminal case.
After a jury trial, the defendant, Hilton A. Lake, was
convicted under 18 U.S.C. S 924(c)(1) of using or carrying a
firearm during and in relation to a crime of violence,
namely, a carjacking (see 18 U.S.C. S 2119). Lake
challenges his conviction on numerous grounds, the most
substantial of which is that he did not violate the
carjacking statute because, he argues, he did not take the
motor vehicle in question "from the person or presence" of
the victim. We reject this and Lake's other arguments, and
we therefore affirm.
I.
The events that led to Lake's prosecution occurred at
Little Magen's Bay in St. Thomas, United States Virgin
Islands. The road to the beach at Little Magen's Bay ends
at the top of a hill. There is a steep path bordered by
vegetation and rocks that leads from the road down to the
beach, and the road cannot be seen from the beach.
On the day in question, Lake hitchhiked to Little Magen's
Bay and encountered Milton Clarke, who was sitting on the
beach reading a newspaper. Lake asked whether Clarke
owned a white car parked up on the road. Clarke said that
he did, and Lake initially walked away. However, Lake
returned a few moments later and asked to borrow the car.
When Clarke refused, Lake stated that it was an
2
emergency. Clarke again refused, and Lake walked off.
When Lake returned yet again, Clarke said:
[L]isten, think about it. If I walked up to you and asked
you, can I borrow your car[,] [a]re you going to lend it
to me? Of course not. So why don't you leave me the
hell alone. I'm here to have a nice time. Just chill. Go
someplace else.
App. 140A.
Lake walked off and sat on a rock, while Clarke anxiously
watched him out of the corner of his eye, but Lake soon
returned with the same request. When Clarke swore again,
Lake asked if he could have a drink from Clarke's cooler.
Clarke said: "[D]on't you get it? Leave me alone." App.
141A. Lake then lifted up his shirt, showed Clarke the
handle of a gun, and said: "[Y]ou know what that is?" App.
141A. Clarke stood up and started backing away, but Lake
pulled the gun from his waist band, put it against Clarke's
face, and demanded the car keys. App. 142A. Clarke said
that he did not have the keys and started walking toward
the water with Lake following. Clarke waded into waist-deep
water, and Lake walked out onto a promontory overlooking
the water. App. 143A-48A.
While Clarke was in the water, his friend, Pamela
Croaker, appeared on the beach. Clarke shouted a warning,
prompting Lake to approach Croaker. Lake demanded that
Croaker surrender her car keys, and Croaker said:"I don't
even know you. Why would I give you the keys to the car?"
App. 183A. Lake then grabbed the keys, and the two
wrestled for possession of the keys. When Croaker saw the
gun, she surrendered the keys but asked to keep her house
keys. App. 184A-86A. Lake went up the steep path to the
parking area where Croaker had parked her car out of sight
of the beach. Lake then drove away in Croaker's car after
leaving her house keys on the hood of Clarke's car. App.
192A. As we will discuss later in more detail, both Croaker
and Clarke followed him up the path, but when they
arrived, he was driving away.
Later that day, the police apprehended Lake in the stolen
car at a McDonald's restaurant. When questioned by the
police and an FBI agent, Lake stated that he had used a toy
3
gun and that he had thrown it in a swamp. He refused to
take the officers to the site where he had allegedly disposed
of the gun, and when asked to tell the truth about whether
the gun was really a toy, he responded that he "would think
about it." The gun was never recovered.
Lake was indicted for carjacking, in violation of 18 U.S.C.
S 2119, and for using and carrying a firearm during and in
relation to a crime of violence (the carjacking), in violation
of 18 U.S.C. S 924(c)(1). At the close of the evidence in his
jury trial, Lake moved unsuccessfully for a judgment of
acquittal. The jury subsequently returned a verdict of not
guilty of the carjacking charge but guilty of thefirearms
offense. Lake was sentenced to imprisonment for 60
months plus a three-year term of supervised release. He
then took this appeal.
II.
We will begin with Lake's argument that the evidence was
insufficient to support his conviction under 18 U.S.C.
S 924(c)(1) because the evidence did not show that he used
or carried a "firearm" within the meaning of 18 U.S.C.
S 921(a)(3). Lake contends that the evidence failed to
establish that the gun was not a toy. Appellant's Br. at 18.
Lake notes that he initially told Officer Griffin that the gun
was a toy, that Croaker and Clarke both said that the gun
looked like the type of gun used by cowboys in Westerns,
and that Clarke said that he was not able to tell whether
the gun was real. Id.
We recently addressed a similar argument in United
States v. Beverly, 99 F.3d 570 (3d Cir. 1996), and under
Beverly the evidence here was sufficient. Both Clarke and
Croaker stated that Lake had a gun and described it in
some detail. See App. 141A-42A, 184A. Lake does not
contend that their descriptions were inconsistent with that
of a real gun. Both Clarke and Croaker testified that they
experienced great fear, App. 151A, 184A, 186A, and
Croaker manifested sufficient fear of the gun to surrender
her keys. Moreover, although Lake originally told the
authorities that the gun was a toy and that he had thrown
it in a swamp, he refused to reveal its location, and when
4
later asked whether he would tell the truth about whether
the gun was real, Lake responded that he would "think
about it." App. 171A-72A. In light of all of this evidence, a
rational jury could find that the gun was real.
III.
Lake next argues that the evidence was insufficient to
show that he violated the carjacking statute, 18 U.S.C.
S 2119, and thus that he committed the predicate offense
needed to support his 18 U.S.C. S 924(c)(1) conviction.
Under the carjacking statute, 18 U.S.C. S 2119, the
prosecution must prove that the defendant (1) "with intent
to cause death or serious bodily harm" (2) took a motor
vehicle (3) that had been "transported, shipped, or received
in interstate or foreign commerce" (4) "from the person or
presence of another" (5) "by force and violence or by
intimidation." Lake contends that the evidence in this case
was insufficient to prove elements one, three, and four. In
reviewing the sufficiency of the evidence, we must decide
whether the jury could have rationally found that each of
the challenged elements had been established beyond a
reasonable doubt. United States v. Carr, 25 F.3d 1194,
1201 (3d Cir. 1994).
A. Intent to cause death or serious bodily injury. We see
no merit in Lake's contention that the evidence was
insufficient to show that he intended to cause death or
serious bodily injury. As previously discussed, the evidence
was sufficient to show that Lake's gun was real. In
addition, the car jacking victim, Pamela Croaker, testified
that Lake waved the gun in front of her and ordered her to
give him the keys to her car. App. 184A. When she
hesitated, she testified, Lake placed the gun close to her
head and again told her to surrender the keys. App. 185A.
Based on this testimony, a rational jury could find that
Lake had the intent to kill or cause serious bodily injury to
Croaker if she did not comply with his demands, and we
have previously held that such a conditional intent is
sufficient to satisfy the carjacking statute. United States v.
Anderson, 108 F.3d 478, 481-85 (3d Cir.), cert. denied, 118
S. Ct. 123 (1997).
5
In arguing that the proof of intent was insufficient, Lake
notes, among other things, that he "asked for Clarke's keys
several times before he displayed the gun and placed it
against Clarke's face" and that he initially asked for
Croaker's keys and wrestled with her before pulling the gun
on her. Appellant's Br. at 16. We agree that these facts
suggest that Lake was at least reluctant to fire his gun, but
we do not agree that a rational jury was compelled to infer
that Lake would not have fired the gun in the end if
Croaker had not given up the keys. On the contrary, we
hold that the evidence amply supported the jury's finding
that Lake possessed the requisite conditional intent to
cause death or serious bodily injury.
B. From the person or presence of another. Lake
maintains that the evidence did not show that he took
Croaker's car "from [her] person or presence," as 18 U.S.C.
S 2119 demands. Lake argues that he took her keys, not
her car, from her person or presence and that the car was
not in Croaker's presence when he took it because she
could not see or touch the car at that moment.
The carjacking statute's requirement that the vehicle be
taken "from the person or presence of the victim" "tracks
the language used in other federal robbery statutes," H.R.
Rep. No. 102-851 (I), at 5 (1992), reprinted in 1992
U.S.C.C.A.N. 2829, 2834, such as 18 U.S.C. SS 2111, 2113,
and 2118. See United States v. Perez-Garcia, 56 F.3d 1, 3
(3d Cir. 1995). Under these statutes, "property is in the
presence of a person if it is `so within his reach, observation
or control, that he could if not overcome by violence or
prevented by fear, retain his possession of it.' " United
States v. Burns, 701 F.2d 840, 843 (9th Cir. 1983). See also
United States v. W.T.T., 800 F.2d 780, 782 (8th Cir. 1986);
LaFave and Scott, Substantive Criminal Law S 8.11 at 443
(1986) (" `Presence' in this connection is not so much a
matter of eyesight as it is one of proximity and control: the
property taken in the robbery must be close enough to the
victim and sufficiently under his control that, had the latter
not been subjected to violence or intimidation by the
robber, he could have prevented the taking").
Here, as previously described, Lake took Croaker's car
keys at gunpoint on the beach and then ran up the path
6
and drove away in her car. Croaker pursued Lake but did
not reach the parking area in time to stop him. Applying
the definition of "presence" noted above, we conclude that
a rational jury could have found that Croaker could have
prevented the taking of her car if she had not been fearful
that Lake would shoot or otherwise harm her. Croaker
testified that the sight of Lake's gun caused her great fear.
She stated that when she first saw the gun she"felt like
[she] was going to let go of [her] bowels [and] faint." App.
184A. Although Croaker did not say in so many words that
she hesitated for some time before pursuing Lake up the
path, the sequence of events laid out in her testimony
supports the inference that this is what occurred. Croaker
stated that at the point when she surrendered the keys,
Clarke "was struggling back through the water to come
back," App. 185A, but that she did not start to run up the
path until Clarke emerged from the water. App. 186A.
Clarke testified that, when Lake ran up the path, Croaker
was "pulling herself together kind of." App. 150A. Clarke
related that he "caught up to [Croaker] at the bottom of the
paved driveway" and that the two of them proceeded up the
path together. App. 150A. They reached the parking area in
time for Croaker to see Lake driving away in her car but not
in time to stop him. App. 186A. Both Croaker and Clarke
stated that at this point they were very scared. App. 151A,
186A. Based on this testimony, a rational jury could infer
that Croaker hesitated before pursuing Lake due to fear
and that if she had not hesitated she could have reached
the parking area in time to prevent Lake from taking her
car without employing further force, violence, or
intimidation. We do not suggest this inference was
compelled, but because such an inference was rational, we
hold that the evidence was sufficient.
C. Interstate or foreign commerce. Lake al so contends
that the evidence was not sufficient to show that Croaker's
car had been transported in interstate or foreign commerce.
The prosecution sought to establish this element based on
testimony by police officer Curtis Griffin, a life-long resident
of the Virgin Islands, that no motor vehicles are
manufactured in the Virgin Islands and that all motor
vehicles have to be shipped to the islands. App. 194A-195A.
Lake argues, however, that "Griffin was not qualified to
7
testify regarding this element simply because he was a life
long resident of the Virgin Islands" and that "[n]o
foundation was laid for this testimony." Appellant's Br. at
19. We reject this argument. Under Fed. R. Evid. 602,
Officer Griffin's testimony was proper if there was sufficient
evidence "to support a finding that [he had] personal
knowledge of the matter." This foundation may be
"furnished by the testimony of the witness himself." Fed R.
Evid. 602 Advisory Committee Note on the 1972 Proposed
Rules. "The district court exercises its discretion in
determining whether the proponent of the evidence has met
[this] burden." 3 Weinstein's Federal Evidence S 602.03
[1][b] at 602-11 (2d Ed. 1998).
There was no abuse of discretion here. We take judicial
notice of the fact that the United States Virgin Islands
consist of three main islands, which are closely grouped
and have an area of only 136 square miles. Times Atlas of
the World 33 (1995). A police officer and lifelong resident of
a place of this type has a sufficient basis to testify as to
whether any motor vehicle manufacturing facilities are
located there. We therefore conclude that the prosecution
adequately proved, as 18 U.S.C. S 2119 requires, that the
motor vehicle in question had been transported in
interstate or foreign commerce.1
In sum, we hold that the evidence was sufficient to
establish all of the elements of the car jacking statute.
IV.
We reject Lake's contention that the district court
committed reversible error in instructing the jury with
respect to the 18 U.S.C. S 924(c)(1) charge because the
_________________________________________________________________
1. Lake has not raised the question whether Congress possessed the
authority under the Commerce Clause to enact the federal carjacking
statute. See United States v. Oliver, 60 F.3d 547, 549-50 (9th Cir.
1995)(statute constitutional), cert. granted sub nom. Jones v. United
States, 118 S. Ct. 1359 (1998), order granting cert. amended, 118 S. Ct.
1405 (1998)(limiting questions presented); United States v. Bishop, 66
F.3d 569 (3d Cir. 1995)(statute constitutional), cert. denied, 116 S. Ct.
681, 750 (1996); id. at 590-91 (statute unconstitutional)(Becker, J.,
dissenting).
8
court did not at that point reiterate all of the elements of
the predicate carjacking offense. The district court set out
all of the elements of the car jacking offense when it
instructed the jury on the carjacking count (count I) of the
indictment. When the court later turned to the firearms
charge, the court told the jury that this offense required
proof that Lake "committed the crime of carjacking as
charged in the indictment in Count I." App. 351A. This
instruction was accurate, and although the court refused to
give Lake's requested instruction reiterating all of the
elements of the carjacking offense, the court's refusal
clearly does not justify reversal. A trial judge's refusal to
give an instruction requires reversal only when the
requested instruction "was correct, not substantially
covered by the instructions given, and was so consequential
that the refusal to give the instruction was prejudicial to
the defendant." United States v. Phillips, 959 F.2d 1187,
1191 (3d Cir. 1992). Here, the requested instruction was
substantially covered elsewhere in the instructions, and we
perceive little risk of prejudice to the defendant from the
trial court's refusal to reiterate the elements of carjacking.
V.
Lake argues that the district court erred in sentencing
him under 18 U.S.C. 924(c)(1) for using or carrying a
firearm during a carjacking since he was acquitted on
count I of the indictment, which charged him with the
carjacking. In making this argument, Lake relies on
Government of the Virgin Islands v. Edwards, 750 F.2d 23
(3d Cir. 1984), which in turn relied on Government of the
Virgin Islands v. Charles, 590 F.2d 82 (3d Cir. 1979). Both
Edwards and Charles concerned a Virgin Islands statute,
14 V.I.C. S 2251(a)(2), which provides in pertinent part as
follows:
Whoever--
(1) with intent to use the same unlawfully against
another, has, possesses, bears, transports, carries or
has under his proximate control, a dagger, dirk,
dangerous knife, stiletto, or any other dangerous or
deadly weapon shall--
9
(A) be fined not more than $1,000 or imprisoned not
more than two (2) years, or both; or
(B) if he has previously been convicted of a felony, or
has, possesses, bears, transports, carries or has under
his proximate control, any such weapon during the
commission or attempted commission of a crime of
violence (as defined in section 2253(d)(1) hereof) shall
be fined not more than $2,000 or imprisoned not more
than five (5) years, or both, which penalty shall be in
addition to the penalty provided for the commission of,
or attempt to commit, the crime of violence.
In Charles, our court held that the defendant could not
be sentenced under subsection (B) of this statute because
he had not been convicted of any offense that qualified as
a "crime of violence" under the statutory definition. In
Edwards, our court again held that the defendant, who had
not been convicted of a crime of violence, could not be
sentenced under subsection (B). Although the trial judge
made "specific findings that [the defendant] possessed the
weapon during the commission of a crime of violence," our
court wrote that "those findings cannot act as a substitute
for the jury's conviction of defendant of a crime of violence."
750 F.2d at 24-25. We also "deem[ed] it significant" that the
instruction on the 14 V.I.C. S 2251(a)(2) charge merely
required the jury to find that the defendant possessed a
dangerous knife with the purpose of using it unlawfully
against the victim and did not require the jury tofind, as
14 V.I.C. S 2251(a)(2)(B) demanded, that he possessed the
weapon during the commission of a crime of violence. Id. at
25. In a footnote, the court observed that it "express[ed] no
opinion on whether or under what circumstances any
conviction of S 2251(a)(2) could be subject to enhancement
under S 2251(a)(2)(B) if there were no predicate conviction
for a crime of violence." 750 F.2d at 25 n.1.
Because Charles and Edwards involved a different
statute, we do not believe that they support Lake's
argument here. The federal statute at issue in this case, 18
U.S.C. S 924(c)(4), is not a sentencing enhancement
provision but sets out an independent criminal offense.
United States v. Nelson, 27 F.3d 199, 200 (6th Cir. 1994).
See also United States v. Jenkins, 90 F.3d 814, 821 (3d Cir.
10
1996). In a prosecution under this provision, the
government must prove that the defendant committed a
qualifying predicate offense, see Jenkins, 90 F.3d at 821,
but it is not necessary that the defendant be separately
charged with or convicted of such an offense. Nelson, 27
F.3d at 200; United States v. Wilson, 884 F.2d 174, 176
(5th Cir. 1989); United States v. Hill, 971 F.2d 1461, 1464
(10th Cir. 1992); United States v. Ospina, 18 F.3d 1332,
1336 (6th Cir. 1994); United States v. Wilkins, 911 F.2d
337, 338 n.1 (9th Cir. 1990); United States v. Robertson,
901 F.2d 733, 734 (9th Cir. 1990); United States v. Munoz-
Fabela, 896 F.2d 908, 911 (5th Cir. 1990); United States v.
Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989). Although
Charles and Edwards apparently stand for the proposition
that a defendant either always or generally must be
separately convicted of a crime of violence in order to be
sentenced under 14 V.I.C. S 2251(a)(2)(B), we see no basis
for importing that rule into a case involving an entirely
different, federal statute.
VI.
Lake's final argument is that he was entitled to a new
trial or to the suppression of the testimony regarding his
statement to the police because rough notes taken by a
detective during Lake's interview were not preserved after
the interview was reduced to writing by an FBI agent. We
have admonished government agents to preserve rough
notes of interviews with prospective trial witnesses, but we
have also held that if the destroyed notes do not contain
"Brady"2 or Jencks Act, 18 U.S.C. S 2500, material and
were discarded in good faith, retrial is unnecessary even if
the testimony of the officer who took the notes is not
stricken. United States v. Ramos, 27 F.3d 65, 72 (3d Cir.
1994). Under Ramos, we see no ground for reversal here.
VII.
For these reasons, we affirm the judgment of the district
court.
_________________________________________________________________
2. Brady v. Maryland, 373 U.S. 83 (1963).
11
BECKER, Chief Judge, dissenting.
When the defendant took the car keys from his victim,
Pamela Croaker, Ms. Croaker's car was, in city terms, a
block away, up the hill, out of sight. Under these
circumstances, I would join an opinion upholding Lake's
conviction for "keyjacking," or for both key robbery and
grand larceny. I cannot, however, agree that he is guilty of
carjacking. The majority draws upon federal robbery
statutes to explicate how the vehicle (as opposed to its keys)
may be considered to have been taken from the "person or
presence of the victim." Disciples of the jurisprudence of
pure reason may, in analytic terms, find this approach
convincing. As I will explain below, I do not. At all events,
my polestar is the plain meaning of words, and in my
lexicon, Ms. Croaker's car cannot fairly be said to have
been taken from her person or presence, hence I
respectfully dissent.
The robbery statutes upon which the carjacking statute
is based do not themselves define the phrase "from the
person or presence of the victim." Webster's New
International Dictionary defines presence as "the vicinity of,
or area immediately near one." However, rather than relying
on the plain meaning, the majority turns to a construction
of the phrase "person or presence" adopted by the Ninth
Circuit in United States v. Burns, 701 F.2d 840 (9th Cir.
1983), where, in construing a federal robbery statute, that
court reasoned that "property is in the presence of a person
if it is `so within his reach, inspection, observation or
control, that he could if not overcome by violence or
prevented by fear, retain his possession of it." Id. at 843.
Based on this definition, the majority concludes that a
rational jury "could infer that Croaker hesitated before
pursuing Lake due to fear and that if she had not hesitated
she could have reached the parking area in time to prevent
Lake from taking her car without employing further force,
violence, or intimidation." Maj. Op. at 7. This proves too
much. If it is true that had Croaker not hesitated out of
fear she could have followed Lake up the steep path leading
from the secluded beach to the road, then it is equally true
(barring physical limitations) that she could have followed
him up that path and then halfway across St. Thomas. The
12
fact that Croaker's car was nearby is thus not relevant; if
she could have followed Lake up the hill, she could have
followed him anywhere. I am aware, of course, that the
craft of judging requires line-drawing, but I simply do not
see how that endeavor can be principled when it is
predicated on open-ended definitions of key statutory
terms, especially where those terms admit of plain
meaning.
The majority's reliance on a car robbery case to show
that the evidence was sufficient to convict Lake of
carjacking is of particular interest to me since, coupled with
the typical fact pattern in federal carjacking cases, it
strengthens my view that my dissent in United States v.
Bishop, 66 F.3d. 569 (3d. Cir. 1995), was correct when it
reasoned that the federal carjacking statute should be
declared unconstitutional under the authority of United
States v. Lopez, 514 U.S. 549 (1995). The principal basis on
which the Bishop majority found the carjacking statute to
be a valid exercise of the interstate commerce power was
the belief that carjacking is an adjunct of the interstate
business of auto theft, in which the stolen vehicle is
destined for a "chop shop." The majority adverted to
references in the legislative history labeling carjacking as
part of an economic enterprise in which profit is derived
from the resale of stolen vehicles or their parts.1 In
contrast, almost every carjacking case that I have seen or
read about in the last several years -- and there have been
many -- is a violent robbery in which the perpetrator has
not even the remotest connection to a car theft ring or a
chop shop.2 The "effect on interstate commerce"
_________________________________________________________________
1. Other courts of appeals have cited as additional bases for concluding
that S 2119 is within Congress' power to regulate commerce that
automobiles are instrumentalities of interstate commerce and that the
statute has a "jurisdictional hook" (i.e., that it only applies to the
forcible
taking of a car "that has been transported, shipped, or received in
interstate or foreign commerce."). See e.g., United States v. Romero, 122
F.3d. 1334 (10th Cir. 1997); United States v. McHenry, 97 F.3d. 125 (6th
Cir. 1996); United States v. Oliver, 60 F.3d. 547 (9th Cir. 1995), aff'd
on
resentencing, 116 F.3d. 1487 (9th Cir. 1997), cert. granted sub nom.,
Jones v. United States, 118 S. Ct. 1405 (1998). For the reasons set out
in my dissent in Bishop, I find these justifications unconvincing.
2. Indeed, the facts of the instant case are amongst the least egregious
that I have seen where carjacking is alleged. That is probably because,
as I have explained, this case does not involve a carjacking nor, for that
matter, a car robbery.
13
underpinning of the carjacking statute is thus a chimera,
and I hope that the Supreme Court will take up this issue
before too long.3
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
3. In my view, carjacking cases are local crimes which belong in state
courts not federal courts. See Judicial Conference of the United States,
Long Range Plan for the Federal Courts 24 (Dec. 1995) (Congress should
be encouraged to allocate criminal jurisdiction to the federal courts only
in limited situations; such a situation is not present where criminal
activity has "some minor connection with and effect on interstate
commerce". ).
14
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
TIMOTHY PIGFORD, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 97-1978 (PLF)
)
TOM VILSACK, Secretary, )
United States Department of Agriculture, )
)
Defendant. )
_________________________________________ )
)
CECIL BREWINGTON, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 98-1693 (PLF)
)
TOM VILSACK, Secretary, )
United States Department of Agriculture, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Maurice G. McGinnis, who prevailed on a “Track A” claim in this case
in 2008 but refused to cash his award check, moves to enforce the Consent Decree and seeks
permission to vacate the results of his Track A adjudication and to arbitrate his claim under
Track B instead. See Dkt. No. 1853 (“Mot.”). Although Mr. McGinnis opted for Track A in the
claim sheet that he completed with the assistance of counsel in August 1999, he maintains that
shortly thereafter he informed the Claims Facilitator by telephone and in writing that he wished
to pursue his claim under Track B. See Mot., Ex. A ¶ 2 (“McGinnis Decl.”); id., Ex. 2 (letter to
Facilitator dated Sept. 1, 1999). Mr. McGinnis contends that the Facilitator erred by not
complying and reassigning his claim to Track B. He further contends that after the Adjudicator
initially denied his Track A claim, the Facilitator’s error was compounded by the Monitor, who
directed reexamination of the denial but did not order the claim to be arbitrated under Track B, as
Mr. McGinnis requested in his petition for Monitor review. See Mot. at 4-6; McGinnis Decl.,
Ex. 3 at 1. Arguing that the Facilitator’s error violated the Consent Decree, and that the limited
damages available and awarded to him under Track A do not nearly approximate his actual
losses, Mr. McGinnis moves under Section 13 of the Consent Decree for an order directing the
Arbitrator to convene a hearing on his claim under Track B. See Mot. at 6. The USDA opposes
Mr. McGinnis’ motion, arguing that Section 13 of the Consent Decree does not authorize the
relief he seeks and that other portions of the Consent Decree prohibit that relief.
The Court reserves judgment on whether the relief sought by Mr. McGinnis is
authorized or permitted by the Consent Decree, and on whether, if so, he has demonstrated
entitlement to that relief based on Facilitator error. In his petition for Monitor review, Mr.
McGinnis argued, as he does here, that he “mistakenly chose the wrong Track and the facilitator
failed to correct it”; he therefore requested “that his claim be remanded to the facilitator to be
placed into Track B.” McGinnis Decl., Ex. 3 at 1. “In the alternative,” however, Mr. McGinnis
asked “that his claim be remanded to the Adjudicator for readjudication,” explaining that he
failed to include with his claim sheet all of the information and documentation supporting his
claim because he incorrectly believed that he would have the opportunity to do so later. Id. The
Monitor’s decision on Mr. McGinnis’ petition for review — which issued a number of years
after he filed that petition — explains why she did not remand the claim to Track B but instead
2
directed reexamination by the Adjudicator under Track A: “In his Petition, the Claimant also
requests that his claim be arbitrated under Track B. Pursuant to discussions with the Facilitator,
the parties and the Monitor have established that the Claimant will proceed as a Track A
claimant.” McGinnis Decl., Ex. 3 at 6 n.27; see id. at 25 n.125 (“Pursuant to discussions with
the Facilitator, the parties and the Monitor have established that the Claimant will proceed as a
Track A claimant.”).
The Monitor’s decision provides no further information about the conversations
described in these two footnotes, including the identity of “the parties” who engaged in these
discussions or when they took place. The footnotes suggest, however, that counsel speaking on
behalf of Mr. McGinnis represented to the Facilitator or to the Monitor that Mr. McGinnis had
changed his mind and wished to pursue only the alternative remedy sought in his petition —
reexamination under Track A with a supplemented record — and not arbitration under Track B.
For his part, Mr. McGinnis denies that he gave permission to relinquish his request for Track B
arbitration, although he offers no specific information about whom, if anyone, he spoke to about
this matter between the submission of his petition for review and the issuance of the Monitor’s
decision: “The Monitor’s conclusion through a discussion with the Facilitator that I somehow
abandoned my election of Track B is erroneous and entirely unsupported in the record. At no
time since I advised the Facilitator of my original mistake did I suggest to anyone in the process
that I agreed to a Track A election.” McGinnis Decl. ¶ 4.
“As a general matter,” our circuit has explained, “‘[c]lients must be held
accountable for the acts and omissions of their attorneys.’” Pigford v. Veneman, 292 F.3d 918,
925-26 (D.C. Cir. 2002) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380,
396-97 (1993)). The “presumption of client accountability for attorney conduct” applies in class
3
actions, as it does elsewhere, although that presumption may be more easily overcome in
contexts where clients have not freely chosen their attorneys. Id. at 926; see Pigford v. Johanns,
416 F.3d 12, 20 (D.C. Cir. 2005). Here, it appears that attorneys representing Mr. McGinnis may
have committed him exclusively to a Track A remedy, through statements made directly or
indirectly to the Monitor. One assumes they would not have done so without consulting with
their client. But the Court presently lacks critical information that might help it to sort this
matter out.
Mr. McGinnis’ petition for Monitor review, dated August 15, 2001, was signed
and submitted by Alexander J. Pires, Jr., Esquire, one of the class counsel and co-lead counsel in
this action. Because Mr. Pires withdrew as counsel in this case in June 2006, it is not clear
whether he might have been involved in the discussions cited by the Monitor in her decision
(which issued in January 2008) or whether his role would have been filled by co-lead counsel
Phillip L. Fraas or David J. Frantz. Before rendering any determination on Mr. McGinnis’
motion, the Court would like to know who spoke with the Facilitator or Monitor on behalf of Mr.
McGinnis regarding this matter, what representations were made on his behalf, and what basis
existed for these representations. The Court therefore will order Mr. Fraas and Mr. Frantz, as co-
lead counsel and as officers of the Court, to consult their records (communicating with the
Facilitator if necessary) and submit affidavits or declarations providing answers to these
questions. If Mr. Fraas and Mr. Frantz determine that Mr. Pires was indeed involved in the
discussions at issue here, they are directed to procure an affidavit or declaration from him.
Accordingly, it is hereby
ORDERED that on or before May 31, 2013, Phillip L. Fraas and David J. Frantz
are directed to file with the Court affidavits or declarations that describe, to the best of their
4
ability given their existing records and recollections, (1) what representations were made by
counsel to the Facilitator or Monitor regarding Mr. McGinnis’ choice between Track A
adjudication and Track B arbitration before the issuance of the Monitor’s decision, (2) who made
those representations, and (3) on what basis those representations were made.
SO ORDERED.
/s/________________________
PAUL L. FRIEDMAN
DATE: May 7, 2013 United States District Judge
5
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750 F.2d 67
Ericksonv.Anthony Industries, Inc.*
NO. 84-1490
United States Court of Appeals,fifth Circuit.
NOV 29, 1984
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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691 F.2d 508
U. S.v.De Gusta
81-4354
UNITED STATES COURT OF APPEALS Ninth Circuit
9/1/82
1
E.D.Cal.
AFFIRMED
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IN THE SUPREME COURT OF PENNSYLVANIA
In the Matter of : No. 2632 Disciplinary Docket No. 3
:
SAL GREENMAN : Board File No. C2-19-303
:
: (Supreme Court of New Jersey, D-77
: September Term 2018)
:
: Attorney Registration No. 68340
:
: (Out of State)
ORDER
PER CURIAM
AND NOW, this 9th day of September, 2019, having failed to respond to a Notice
and Order directing him to provide reasons against the imposition of reciprocal discipline,
Sal Greenman is disbarred from the practice of law in the Commonwealth of
Pennsylvania. He shall comply with all the provisions of Pa.R.D.E. 217.
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69 F.3d 551
Stauntonv.Gwinnett County**
NO. 94-8736
United States Court of Appeals,Eleventh Circuit.
Oct 03, 1995
1
Appeal From: N.D.Ga.,No. 91-01215-1-CV-JEC
2
AFFIRMED.
**
Local Rule 36 case
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521 F.3d 437 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
Edwin Giovanni RODRIGUEZ-AMAYA, Defendant-Appellant.
No. 06-4514.
United States Court of Appeals, Fourth Circuit.
Argued: February 1, 2008.
Decided: April 11, 2008.
*438 Geremy Charles Kamens, Office Of the Federal Public Defender, Alexandria, Virginia, for Appellant. Michael John Frank, Office of the United States Attorney, Alexandria, Virginia, for Appellee. Michael S. Nachmanoff, Acting Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.
Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and PATRICK M. DUFFY, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge WILKINSON and Judge DUFFY joined.
OPINION
WILLIAMS, Chief Judge:
Edwin Giovanni Rodriguez-Amaya, an El Salvadoran national, appeals his conviction for unlawful reentry after deportation by an aggravated felon ("unlawful reentry"), in violation of 8 U.S.C.A. § 1326(a) and (b)(2) (West 2005), arguing that his indictment and subsequent conviction violated the Speedy Trial Act, 18 U.S.C.A. § 3161(b) (West 2000). Because the time Rodriguez-Amaya was detained by United States Immigration and Customs Enforcement ("ICE") on administrative charges pending his removal was not detention "in connection with" his arrest for violating 8 U.S.C.A. § 1326(a) and (b)(2), we conclude *439 that Rodriguez-Amaya's indictment did not violate the Speedy Trial Act. We therefore affirm his conviction.
I.
In 1996, Rodriguez-Amaya was convicted of aggravated sexual battery of a minor specifically, an eleven year old girl in Fairfax County, Virginia and sentenced to eight years imprisonment. Under 8 U.S.C.A. § 1101(43)(A), this conviction constituted an "aggravated felony" for purposes of the Immigration and Nationality Act ("INA"). 8 U.S.C.A. § 1101(43)(A) (West 2005). Pursuant to the INA, aggravated felons are subject to deportation, 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 2005). Accordingly, Rodriguez-Amaya was deported to El Salvador around June 19, 1998.
Rodriguez-Amaya, however, was not deterred by his deportation and, at some point, he returned to the United States. In April. 2005, the Department of Homeland Security received an anonymous tip that Rodriguez-Amaya had reentered the United States and was associated with the street gang Mara Salvatrucha, or "MS-13." Acting on this tip, Special Agent Julian Doyle of ICE administratively arrested Rodriguez-Amaya on May 17, 2005 and issued a "Notice of Intent/Decision to Reinstate Prior Order," which informed Rodriguez-Amaya of the United States' intent to reinstate the 1998 deportation order and remove Rodriguez-Amaya to El Salvador. Rodriguez-Amaya signed this form. Because Rodriguez-Amaya was previously deported for committing an aggravated felony, the INA required that ICE detain Rodriguez-Amaya pending his deportation. 8 U.S.C.A. § 1226(c)(1)(B) (West 2005).
On June 6, 2005, ICE briefly transferred custody of Rodriguez-Amaya to the Commonwealth of Virginia, which desired to prosecute him for failure to register as a sex offender. While Rodriguez-Amaya was still in Virginia's custody, on July 21, 2005, Agent Doyle requested a criminal complaint and arrest warrant from the United States District Court for the Eastern District of Virginia against Rodriguez-Amaya for unlawful reentry, which the court issued. No further action was taken by Agent Doyle at the time, and Rodriguez-Amaya remained in Virginia's custody.
On October 7, 2005, Virginia returned Rodriguez-Amaya to ICE's custody; ICE's Department of Detention and Removal Operations then resumed processing Rodriguez-Amaya in preparation for his removal to El Salvador. Winston Chow, the Deportation Officer in charge of Rodriguez-Amaya's administrative removal, was unaware of the criminal complaint filed against Rodriguez-Amaya. Thereafter, on October 25, 2005, Agent Doyle learned that Rodriguez-Amaya had been returned to an ICE custodial facility in southern Virginia. Rodriguez-Amaya, at Agent Doyle's request, was transported to Alexandria, Virginia. On October 27, 2005, Agent Doyle executed the criminal arrest warrant against Rodriguez-Amaya for unlawful reentry. At that point, Rodriguez-Amaya was transferred from ICE's custody to the United States Marshals Service and made his initial appearance before a magistrate judge on that day.
Following a detention hearing conducted on November 1, 2005, Rodriguez-Amaya was ordered detained pending trial. On November 23, 2005, twenty-six days after the execution of the federal criminal arrest warrant, a federal grand jury sitting in the Eastern District of Virginia indicted Rodriguez-Amaya on one count of unlawful reentry, in violation of 8 U.S.C.A. § 1326(a) and (b)(2).
*440 Before trial, Rodriguez-Amaya moved to dismiss the indictment for violating the Speedy Trial Act, 18 U.S.C.A. § 3161(b), which requires indictment within thirty days of arrest. The district court held a hearing at which both Agent Doyle and Officer Chow testified. Agent Doyle testified that he had no role in Rodriguez-Amaya's return to ICE administrative custody on October 7, 2005, and that he did not learn that Rodriguez-Amaya had been returned to ICE custody until October 25, 2005. Officer Chow testified that he did not know of the federal arrest warrant on October 7, 2005, and that during the period from October 7 to October 25, he was actively arranging for Rodriguez-Amaya's removal from the United States. Officer Chow further testified that the removal process still had not been completed on October 25 and that Rodriguez-Amaya's length of stay in administrative detention was not unusual. Although Officer Chow was responsible for reviewing the FBI's National Crime Information Center ("NCIC") records, which should have contained a record of the July 21, 2005 criminal complaint and arrest warrant, he did not learn of the warrant through NCIC (and does not recall ever running an NCIC check in this case). Instead, Officer Chow learned of the pending federal criminal charges only after contacting Agent Doyle on October 25, 2005 to obtain Rodriguez-Amaya's "alien file" or "A file." This file contained documents that Officer Chow needed to arrange an interview with the El Salvadoran consulate, which would then issue the travel document necessary for Rodriguez-Amaya to return to El Salvador. Rodriguez-Amaya did not offer any witnesses in rebuttal, and the district court denied his motion to dismiss the indictment.
Following the denial of the motion to dismiss, the district court conducted a bench trial, after which it found Rodriguez-Amaya guilty of unlawful reentry and sentenced him to 41 months imprisonment. Rodriguez-Amaya timely appealed, and we possess jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2006).
II.
On appeal, Rodriguez-Amaya renews his contention that the indictment against him violated the Speedy Trial Act. We "review de novo the district court's interpretation of the Speedy Trial Act," United States v. Bush, 404 F.3d 263, 272 (4th Cir.2005) (internal quotation marks, alteration, and citation omitted), and review "any of the court's related factual findings for clear error," United States v. Leftenant, 341 F.3d 338, 342 (4th Cir.2003).
The Speedy Trial Act, in relevant part, provides:
Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days.
18 U.S.C.A. § 3161(b).
The term "offense" is defined as "any Federal criminal offense which is in violation of any Act of Congress and is triable by any court established by Act of Congress." 18 U.S.C.A. § 3172(2) (West 2000) (emphasis added). If the thirty-day time limit in § 3161(b) is not met, the "complaint shall be dismissed or otherwise dropped." 18 U.S.C.A. § 3162(a)(1) (West 2000).
*441 A.
Rodriguez-Amaya contends that the Speedy Trial Act's thirty-day limit began running on October 7, 2005, when he was returned to ICE's custody. As of that date, he argues, he was held in federal custody "in connection with" an "offense," specifically the outstanding criminal arrest warrant and complaint for unlawful reentry. Using October 7 as the starting date, Rodriguez-Amaya claims that fifty-six days passed between his arrest and indictment, well outside the Speedy Trial Act's permissible thirty-day time limit. The Government argues that civil detention, including detention by ICE, cannot trigger the limits of the Speedy Trial Act, and that the Act's time limits did not begin running until October 27, 2005, when Agent Doyle served the criminal arrest warrant on Rodriguez-Amaya.
We have previously held that the Speedy Trial Act requires federal action to apply. See United States v. Woolfolk, 399 F.3d 590, 596 (4th Cir.2005) ("[f]or this [thirty-day time] limit to commence, a person must be held for the purpose of answering to a federal charge") (internal quotation marks omitted); United States v. Thomas, 55 F.3d 144, 148 (4th Cir.1995) (explaining "the arrest must be a federal arrest upon a federal charge" for the Speedy Trial Act time limit to commence) (internal quotation marks omitted). The question we face here is what type of federal action is necessary to trigger the running of the thirty-day time limit. As always, we start with the statute's plain language in formulating an answer. U.S. Dep't of Labor v. N.C. Growers Ass'n, 377 F.3d 345, 350 (4th Cir.2004).
Looking to this plain language, we conclude, in agreement with every other circuit to have considered the issue, that the Speedy Trial Act does not apply to civil detention generally, and to ICE administrative detention specifically. See United States v. Dyer, 325 F.3d 464, 468 (3d Cir.2003); United States v. Garcia-Martinez, 254 F.3d 16, 19 (1st Cir.2001); United States v. De La Pena-Juarez, 214 F.3d 594, 597 (5th Cir.2000); United States v. Noel, 231 F.3d 833, 836 (11th Cir.2000); United States v. Grajales-Montoya, 117 F.3d 356, 366 (8th Cir.1997); United States v. Cepeda-Luna, 989 F.2d 353, 355-56 (9th Cir.1993). The Speedy Trial Act requires arrest in connection with an "offense," that is, a "Federal criminal offense." 18 U.S.C.A. § 3172(2) (emphasis added). Accordingly, we have little trouble concluding that the plain language of the Speedy Trial Act limits the Act's coverage to persons detained in connection with a federal criminal arrest.
B.
Rodriguez-Amaya, likely aware that his first argument was a nonstarter, contends in the alternative that, even if civil detention generally does not trigger the protections of the Speedy Trial Act, we should recognize a "ruse exception" to this general rule in order to cover situations where administrative or civil detention amounts to nothing but a cover for criminal detention. See Cepeda-Luna, 989 F.2d at 357-58. On this point, we agree. We have accepted a "ruse exception" of sorts for defining what constitutes "federal" action, see Woolfolk, 399 F.3d at 596 & n. 7, and our sister circuits have been in agreement in adopting an exception in this context as well. This exception to the general rule that the Speedy Trial Act does not apply to civil detentions was initially carved out in Cepeda-Luna, in which the Ninth Circuit reasoned that:
The requirements of the Act would lose all meaning if federal criminal authorities could collude with civil or state officials to have those authorities detain a *442 defendant pending federal criminal charges solely for the purpose of bypassing the requirements of the Speedy Trial Act. If a court found evidence of such collusion, the provisions of the Act could be applied to state or civil detentions.
989 F.2d at 357. See also Garcia-Martinez, 254 F.3d at 20 ("We agree with the position taken by all of the courts of appeals that have addressed the issue that a civil arrest by the INS does not trigger the [Act] in the absence of collusion or evidence that the detention was for the sole or primary purpose of preparing for criminal prosecution."); De La Pena-Juarez, 214 F.3d at 598 (adopting "ruse exception" but holding that it applies only "where the defendant demonstrates that the primary or exclusive purpose of the civil detention was to hold him for future criminal prosecution"); Noel, 231 F.3d at 836 ("We agree with the Fifth Circuit's recent decision that [this ruse] exception will provide protection for detained aliens, but that the exception should only be applied when the defendant demonstrates that the primary or exclusive purpose of the civil detention was to hold him for future criminal prosecution." (internal quotation marks and citation omitted)); Grajales-Montoya, 117 F.3d at 366 (holding that a defendant failed to prove that his civil detention by the INS was a ruse to evade the Speedy Trial Act).
As the Fifth Circuit explained in adopting the ruse exception in this context, the exception is "an effective way of protecting against the possibility of collusion between federal criminal authorities and civil or state officials." De La Pena-Juarez, 214 F.3d at 598. We agree, and hold that the Speedy Trial Act includes a ruse exception in the context of civil detention, such that the time limits of the Speedy Trial Act are triggered when the "primary or exclusive purpose of the civil detention was to hold [a defendant] for future criminal prosecution." Id. Because this ruse exception is, by definition, an exception to the general rule that civil detentions do not implicate the time limits of the Speedy Trial Act, we further hold that civil detainees, like Rodriguez-Amaya, bear the burden of proving the exception applies in a given case. Id.; see also Noel, 231 F.3d at 836.
Turning to the case at bar, we have little trouble concluding that the ruse exception does not apply. The district court held a hearing on the matter, with testimony from only Agent Doyle and Officer Chow. Both testified, under oath, that no collusion occurred between ICE and criminal authorities. Moreover, Chow further testified that he had no knowledge of the outstanding criminal arrest warrant on Rodriguez-Amaya and that he had more administrative work to be completed before Rodriguez-Amaya could be removed to El Salvador. Agent Doyle likewise testified that he was unaware Rodriguez-Amaya was returned to ICE custody until October 25, 2005, and that, upon receiving this information, he immediately had Rodriguez-Amaya transported to Alexandria for his criminal arrest. As the district court aptly noted, Rodriguez-Amaya's ICE custody following his return from state custody "had the clear and documented `administrative detention purpose' of facilitating the government's deportation of [him]." (J.A. at 127.) Moreover, 8 U.S.C.A. § 1226(c)(1)(B) mandates that the Government detain aggravated felons, like Rodriguez-Amaya, pending their removal. We thus think it pellucidly clear that Rodriguez-Amaya has failed to carry his burden of proving his ICE detention beginning on October 7, 2005, was for the primary or exclusive purpose of future criminal investigation.
*443 III.
For the foregoing reasons, Rodriguez-Amaya's conviction for unlawful reentry is
AFFIRMED.
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735 F.2d 1365
U.S.v.Smith
81-1387, 82-1366, 83-1160, 83-1232
United States Court of Appeals,Sixth Circuit.
5/9/84
1
E.D.Mich.
AFFIRMED
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and Senior Judge Frank
UNPUBLISHED
DANIEL ARCEO
MEMORANDUM OPINION*
v. Record No. 0083-16-2 PER CURIAM
JULY 5, 2016
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Herbert Gill, Jr., Judge Designate
(Richard F. Hawkins, III; The Hawkins Law Firm, PC, on brief), for
appellant.
(Mark R. Herring, Attorney General; Rhodes B. Ritenour, Deputy
Attorney General; G. William Norris, Jr., Assistant Attorney
General; Liza S. Simmons, Assistant Attorney General, on brief), for
appellee.
Daniel Arceo (appellant) appeals from the decision of the Circuit Court of the City of
Richmond (circuit court) affirming the decision of a hearing officer of the Office of Employment
Dispute Resolution (EDR) at the Department of Human Resource Management (DHRM). For
the reasons that follow, we summarily affirm the decision of the circuit court. See Rule 5A:27.
Appellant was removed from his employment at the Virginia Department of Social
Services (DSS) after he received two “Group II Written Notices” of disciplinary action.
Appellant filed grievances of the actions of DSS. Following a hearing, an EDR hearing officer
made findings of fact and upheld the issuance of the two disciplinary actions and appellant’s
removal from employment. Upon administrative review conducted at appellant’s request, EDR
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
and DHRM upheld the hearing officer’s decision, finding it was not inconsistent with agency
policy.
Pursuant to Code § 2.2-3006(B), appellant filed a petition for review in the circuit court
from the hearing officer’s decision. Appellant argued that the hearing officer had misclassified
his conduct as a “Group II” disciplinary action, the classification by the hearing officer was
unreasonable and, thus, his termination was contrary to DHRS policy. The circuit court found
appellant failed to demonstrate the hearing officer’s decision was “contradictory to law,” as
required by Code § 2.2-3006(B), affirmed the hearing officer’s decision, and dismissed the
matter with prejudice.1
On appeal to this Court, appellant contends the hearing officer’s decision was
contradictory to law. He asserts that one of the “Group II” disciplinary actions was issued
improperly because he “inadvertently missed a 30 minute meeting.” He also claims the hearing
officer erroneously interpreted DHRM Standards of Conduct and examined the issue of
mitigation.2
1
In the final order, the circuit court found appellant had “failed to reference, cite and/or
otherwise identify any statute (and/or other legislation), judicial precedent and/or accepted legal
principle in support of his claim that the decision of the hearing officer was ‘contradictory to
law’ -- as required by Virginia Code § 2.23006(B) for the reversal of that decision.”
2
Appellant also contends the hearing officer’s decision violated constitutional due
process protections. Appellant did not raise this issue in the circuit court. “No ruling of the trial
court . . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals
to attain the ends of justice.” Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of
this aspect of appellant’s argument on appeal.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See e.g., Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might
-2-
In Virginia Tech. v. Quesenberry, 277 Va. 420, 428-29, 674 S.E.2d 854, 858 (2009), the
Supreme Court of Virginia explained the procedure and applicable standard of review in
grievance proceedings for state employees:
In a plainly stated statutory framework, the Code of
Virginia provides grievance procedures applicable to state agency
employees, granting an employee a right to a hearing before a
designated hearing officer when that employee has been formally
disciplined. See Code §§ 2.2-3001 and 2.2-3004(A)(i). . . .
As provided by statute, a hearing officer appointed by the
Department of Employment Dispute Resolution has certain powers
and duties with regard to a grievance hearing, including the
consideration of evidence and the determination of appropriate
remedies. Code §§ 2.2-3005 and 2.2-3005.1. The hearing
officer’s decision, which must be in writing, shall contain findings
of fact and the hearing officer’s basis for making those factual
findings. Code § 2.2-3005.1(C)(i) and (ii). The hearing officer’s
decision is final and binding “if consistent with law and policy.”
Code § 2.2-3005.1(C)(iii).
If a grievant contends that the hearing officer’s decision is
contrary to the “policy” of the state agency employing the grievant,
the grievant may request that the decision be reviewed by the
Director of the Department of Human Resources Management,
who shall determine whether the hearing officer’s decision “is
consistent with [agency] policy.” Code § 2.2-3006(A). . . .
. . . [A]s permitted by Code § 2.2-3006(B), [a grievant may]
appeal[] to the circuit court from the hearing officer’s decision on
the ground that the hearing officer’s decision was “contradictory to
law.” Under that statutory provision, if an unsuccessful grievant
establishes that the hearing officer’s decision is “contradictory to
law,” the circuit court may reverse or modify the hearing officer’s
decision. See Code § 2.2-3006(B).
The Court of Appeals previously has held that a party
appealing from a hearing officer’s decision to a circuit court is
required to “specify how that decision [was] ‘contradictory’ to law
and what ‘law’ [was] thereby being contradicted.” Tatum v.
Virginia Dept. of Agric., 41 Va. App. 110, 122, 582 S.E.2d 452,
458 (2003) (quoting Virginia Dept. of State Police v. Barton, 39
have occurred.” (emphasis added)). We will not consider, sua
sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
-3-
Va. App. 439, 445-46, 573 S.E.2d 319, 322 (2002)). The
appealing party must “identify [a] constitutional provision, statute,
regulation or judicial decision which the [hearing officer’s]
decision contradicted.” Tatum, 39 Va. App. at 122, 582 S.E.2d at
458 (quoting Barton, 39 Va. App. at 446, 573 S.E.2d at 323).
We agree with this analysis of the burden of a litigant who
appeals a hearing officer’s decision to a circuit court. The General
Assembly has articulated a very narrow standard of review to be
applied by the circuit court in such appeals. Because this standard
focuses solely on the question whether the hearing officer’s
decision is contradictory to any applicable law, the party appealing
the hearing officer’s decision properly bears the burden of
identifying the law thereby contradicted.
Moreover, “[i]nterpretation of state agency policy is itself a matter of policy, absent a statutory
enactment to the contrary, and not a matter of law.” Barton, 39 Va. App. at 446, 573 S.E.2d at
323.
In the circuit court, appellant challenged the factual findings of the hearing officer and
contended those findings did not comply with agency policy. Appellant thus failed to
demonstrate that the hearing officer’s decision was contradictory to law. See Quesenberry, 277
Va. at 429, 674 S.E.2d at 858.
On appeal in a grievance proceeding, this Court’s review likewise is limited to whether
the hearing officer’s decision is “contradictory to law.” See Virginia Dep’t of Corrections v.
Compton, 47 Va. App. 202, 219, 623 S.E.2d 397, 405 (2005). Having reviewed the record, the
circuit court’s order, and the hearing officer’s decision, we find no basis to conclude the hearing
officer’s decision was “contradictory to law.” Accordingly, the appeal is without merit. We
affirm for the reasons stated by the hearing officer in his decision, see In re Case No.
10172/10173 (Oct. 3, 2013), as affirmed by the circuit court, see Arceo v. Dep’t of Soc. Servs.,
Case No. 760CL14000218-00 (Dec. 15, 2015). We dispense with oral argument and summarily
-4-
affirm because the facts and legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process. See Code § 17.1-403; Rule 5A:27.
Affirmed.
-5-
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682 So.2d 775 (1996)
Rocky L. VIG
v.
CITY OF SHREVEPORT, et al.
No. 96-C-2285.
Supreme Court of Louisiana.
November 15, 1996.
Denied.
*776 WATSON and KIMBALL, JJ., would grant the writ.
LEMMON, J., not on panel.
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19 Ill.2d 62 (1960)
166 N.E.2d 59
KEVIE SCHWARTZ et al., Appellees,
v.
THE CITY OF CHICAGO, Appellant.
No. 35420.
Supreme Court of Illinois.
Opinion filed March 31, 1960.
JOHN C. MELANIPHY, Corporation Counsel, of Chicago, (SYDNEY R. DREBIN, Assistant Corporation Counsel, and ROBERT J. COLLINS, Special Assistant Corporation Counsel, of counsel,) for appellant.
DEUTSCH & PESKIN, of Chicago, (BERNARD M. PESKIN, ARTHUR J. BAER, JR., and SOL A. HOFFMAN, of counsel,) for appellees.
FRANK R. SCHNEBERGER, of Chicago, (FRANK S. RIGHEIMER, JAMES W. COFFEY, and JOHN T. MEHIGAN, of counsel,) for the Board of Education of the City of Chicago, amicus curiae.
Judgment reversed.
Mr. CHIEF JUSTICE HOUSE delivered the opinion of the court:
This is an appeal by the city of Chicago from a declaratory judgment of the circuit court of Cook County holding *63 certain provisions of the zoning, location and frontage-consent ordinances of the city unconstitutional and void as applied to plaintiffs' property. The trial court certified that the validity of municipal ordinances is involved.
Plaintiff Schwartz purchased property fronting 97 feet on Irving Park Road and extending to a depth of 90 feet on Greenview Avenue in Chicago subsequent to the adoption of a comprehensive zoning amendment. By such amendment the property was zoned B-2 (retail district), which excluded filling stations as a permitted use. He proposes to raze the two-story frame dwelling located upon the tract and to construct a gasoline filling station. The property is located less than 200 feet from Lake View High School. While the plans show the proposed underground storage tanks will be more than 200 feet from the school boundary, they also disclose that "pump islands," including connecting pipes and equipment for the handling of gasoline, will be closer than 200 feet.
Plaintiffs contend that the zoning ordinance is unreasonable and void as applied to this property. They further assert that section 127-5 of the Municipal Code of Chicago which prohibits the installation of a tank or equipment for storage and handling of flammable liquids within 200 feet of a school, hospital, church or theatre, and section 40-8 which prohibits the installation of tanks for flammable liquids on a lot when any of its boundaries are within 200 feet of the boundary of any such institution, are unauthorized by the enabling legislation and not applicable to their property. Both sections contain frontage-consent provisions, which were held unconstitutional and void in Drovers Trust & Savings Bank v. City of Chicago, 18 Ill.2d 476. The location provisions were not affected by the holding of invalidity of the frontage-consent provisions in that case. However, the validity of the location provisions of those sections was questioned in the recent case of Bulk Petroleum Corp. v. City of Chicago, 18 Ill.2d 383. It was there *64 held that places where large concentrations of people occur may be given special protection against loss of life or injury from fires that might result from the storage and handling of highly inflammable substances. The opinion stated, at page 385: "To attack the validity of this ordinance as applied to his property, the plaintiff must show that the purpose served by the ordinance is improper or that the means selected are not reasonably suited to effectuate this purpose."
In this case the only testimony relative to the reasonableness of the distances to be maintained from the enumerated public meeting places was that of a former chief of fire prevention of the Chicago Fire Department. He stated that it probably would make a difference whether the filling station was 200 or 500 feet distant, and that in his opinion 100 feet would "make a reasonably safe situation." He finally said, in commenting upon a regulation that storage-tank trucks must be kept more than 200 feet from a school: "I'd like to keep it to a thousand, but I think that as long as we have to do it that a hundred feet would be sufficient."
A captain of the Fire Prevention Bureau testified for the city. He stated that leaks of flammable liquids from underground tanks constitute a threat of explosion, that pooling around an underground leaking tank could extend up to 500 feet, and that leaking gasoline seeps into and travels through sewers to their termination point. He was of the opinion that the greatest hazard in a station is the filling of storage tanks on the premises and the filling of motor vehicles that call there for gasoline; and that it is a distinct hazard to have a great number of people in the immediate vicinity during the filling of underground tanks. He fixed the number of filling station fires in the city during the year 1957 at 92.
The board of education filed a brief as amicus curiae, *65 and a number of persons connected with the school system, as well as experts in the field of public safety and fire prevention, testified. It was established that Lake View High School is one of the large Chicago high schools, housed in a four-story building upon a tract 2 blocks long and one-half block wide. About 2,800 day and 2,600 evening students are enrolled. It is also district headquarters for 14 elementary and 3 high schools with a district enrollment of 25,000. Buses load and unload students along Irving Park, in front of the subject property. Many witnesses testified as to the size of the school operation and the problems which would ensue if a filling station were built practically across the street.
From a review of the evidence there is clearly no showing of an unauthorized exercise of police power in the location provisions of the ordinances. In our opinion they are reasonable safety precautions enforceable as a valid exercise of the police power.
Some evidence was introduced to sustain plaintiffs' argument that the zoning classification which excludes filling stations as a permitted use is unreasonable and void in its application to the subject property. There is little purpose in discussing such evidence in detail in view of our holding that plaintiffs are precluded from using the premises for a filling station by virtue of the location provisions of other ordinances. Evidence of the operation of a filling station across the street west from the school is not impressive since it was located there prior to the adoption of any of the ordinances here involved, including the zoning ordinance of 1942. There is a legitimate difference of opinion concerning the reasonableness of the zoning ordinance, and under such circumstances we will not substitute our judgment for that of the legislative body. La Salle National Bank v. City of Chicago, 6 Ill.2d 22; Wehrmeister v. County of Du Page, 10 Ill.2d 604.
*66 We are of the opinion that plaintiffs have not established the invalidity of the location provisions in ordinances of which they complain, nor of the zoning ordinance. The judgment of the circuit court is, therefore, reversed.
Judgment reversed.
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Filed 6/4/13 P. v. Brown CA3
NOT TO BE PUBLISHED
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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C069874
v. (Super. Ct. No. 11F05142)
TIERSA BROWN,
Defendant and Appellant.
Appointed counsel for defendant Tiersa Brown asked this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a
disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On May 19, 2011, defendant Tiersa Brown drove with a blood-alcohol level of
.16 percent. She also possessed a useable amount of cocaine base. She was previously
convicted of driving with a blood-alcohol level of .08 percent or higher on June 28, 2008.
Defendant pled no contest to possession of cocaine base (Health & Saf. Code,
§ 11350) and driving under the influence of alcohol with a prior conviction for driving
under the influence (Veh. Code, § 23152, subd. (a)). The trial court suspended
1
imposition of sentence and granted defendant five years’ formal probation with 180 days
in county jail. The trial court subsequently granted defendant’s request to permit her to
serve the jail term in San Bernardino County with the consent of the Sacramento County
Sherriff’s Department.
Defendant appeals. The trial court denied her request for a certificate of probable
cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant. Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition more favorable
to defendant.
DISPOSITION
The judgment is affirmed.
HOCH , J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
2
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 10, 2000 Session
MARION COUNTY BOARD OF EDUCATION
v. MARION COUNTY EDUCATION ASSOCIATION
Appeal from the Chancery Court for Marion County
No. 6392 Jeffery Stewart, Chancellor
No. M1999-00213-COA-R3-CV - Filed August 7, 2001
This is an appeal from a declaratory judgment action on behalf of the Marion County School Board
seeking a determination as to whether or not the decision by the director of schools to transfer a
principal to a teaching position was subject to binding arbitration under a collective bargaining
agreement in effect between the school board and the Marion County Education Association. A
cross-claim was filed by the Association requesting an injunction to force the Board to arbitration,
and both parties filed motions for summary judgment. The trial court granted the Association’s
motion for summary judgment and mandated the Board to go to final and binding arbitration under
the agreement. We reverse the decision of the trial court and hold that the statutory authority of the
director of schools to hire and select principals may not be limited by a collective bargaining
agreement and that such an agreement cannot authorize an arbitrator to determine who will be
principal at a particular school.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed and Remanded
PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J. joined.
William Henry Haile, Nashville, Tennessee, for the appellant, Marion County Board of Education.
Richard Lee Colbert, Nashville, Tennessee, for the appellee, Marion County Education Association.
OPINION
Defendant Don Stewart was a tenured economics teacher when he was appointed principal
of Jasper Elementary School by the Plaintiff Board of Education (the “Board”) in 1997. Mr. Stewart
had begun his second year as principal when Paul Turney was appointed director of Marion County
Schools in September 1998. Mr. Turney’s appointment was made pursuant to the Education
Improvement Act, Tenn. Code Ann. § 49-5-301(d), which eliminated popularly elected
superintendents.1
In March 1999, Mr. Turney informed Mr. Stewart that he would not be rehired as principal.
Instead, Mr. Stewart was assigned for the 1999-2000 school year to return to teach economics at
Marion County High School where he worked prior to his principalship. Mr. Turney then appointed
someone else as principal. The record provides no reason for the transfer.
Mr. Stewart and Defendant Marion County Education Association (the “Association”),2 filed
a formal grievance under the bargaining agreement between the Board of Education and the
Association, seeking reinstatement and claiming that the Board of Education violated provisions of
the collective bargaining agreement.
The School Board denied the grievance at each step. The Association finally submitted the
matter to the American Arbitration Association, claiming provisions of the collective bargaining
agreement were violated in the transfer of Mr. Stewart and that binding arbitration was contemplated
by the agreement.
The Board responded by commencing this declaratory judgment action and seeking an order
enjoining the arbitration. It argued that the decision to transfer Mr. Stewart to a teaching position
was not subject to binding arbitration under the collective bargaining agreement. The Association
and Mr. Stewart asserted a counterclaim against the Board, alleging that the Board’s refusal to
arbitrate violated the collective bargaining agreement and Tenn. Code Ann. § 49-5-609(a) and sought
an order requiring the Board to proceed with arbitration.3
Both parties filed motions for summary judgment. After hearing oral arguments, the trial
court granted Mr. Stewart and the Association’s motion for summary judgment, finding that the
decision not to renew Mr. Stewart’s contract as principal was subject to arbitration under the
collective bargaining agreement and ordering arbitration to proceed. The Board then commenced
this appeal and moved for a stay of arbitration pending appeal, which was denied. The Board
unsuccessfully renewed the motion for a stay in this court.
The arbitrator found that a number of the provisions of the collective bargaining agreement
1
Upon enactmen t of the Educ ation Improvement Act, local legislative bodies were given the option to delay
implementation of appointment of the director of schools in transitioning from an elected school superintendent. Tenn.
Code Ann. §§ 49-2-20 3(a)(15 )(B) and 49-2-30 1(c). See also County of Shelby v. McWherter, 936 S.W.2d 923 (Tenn.
Ct. App. 1996). Marion County exercised that option, and the change w as effective with the beginning o f Mr. Tu rney’s
term in Sep tember o f 1998.
2
The Association is the recognized professional employees’ organization representing the certified employees
of the Marion County school system.
3
Tenn. Code Ann. § 49-5-609(a)(8) states that it is unlawful for a Board of Education or its designated
representative to “[r]efuse to in good faith mediate, arbitrate and/or participate in fact-finding efforts pursuant to this
part.”
2
had been violated by Mr. Turney and the Board and ordered that Mr. Stewart “be reinstated as
principal at Jasper Elementary School, made whole as to wages and back wages, insurance,
retirement, etc.” Moreover, the arbitrator found that “the Director of Schools did not practice
procedures as outlined in the contract as to this grievance with regard to evaluations, records,
personnel file and notification of deficiencies. In the future cases the Marion County Board of
Education should comply with the notice requirements and the due process provisions of this
contract.”4 In response to the arbitration outcome, the Board passed a resolution to conditionally
reinstate Mr. Stewart as principal pending the conclusion of this cause.
I.
A trial court’s grant of a motion for summary judgment presents a question of law that we
review de novo without a presumption of correctness. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn.
2001) and Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000). Since the material facts in this case
are undisputed, our review focuses on the interpretation and application of various statutes. Thus,
we are presented with a pure question of law. Our review is de novo on the record of the proceedings
below, but there is no presumption of correctness as to the trial court’s ruling. Billington v.
Crowder, 553 S.W.2d 590, 595 (Tenn. Ct. App. 1977); Myint v. Allstate Ins. Co., 970 S.W.2d 920,
924 (Tenn. 1998) (“Construction of a statute is a question of law which we review de novo, with no
presumption of correctness.”).
II.
The primary issue in this case is whether the director’s decision to transfer Mr. Stewart from
a position as principal to a teacher position was subject to arbitration under the collective bargaining
agreement between the Board of Education and the Association. Determination of that issue requires
examination of generally-applicable state law provisions regarding authority for personnel decisions,
the lawful scope of a locally negotiated agreement, and the terms of the agreement at issue herein.
A. State Law On Personnel Decisions
The Education Improvement Act of 1992 vested the director of schools, or superintendent,5
with the power to employ, transfer and discharge employees of the school system.6 The statute
4
Both parties filed motions asking this court to consider the arbitration decision as a post-judgment fact pursuant
to Tenn. R . App. P. 1 4. Those motions are granted. T he merits of that d ecision are n ot, howeve r, before this co urt.
5
Although the EIA abolished the office of superintendent of public instruction, the newly created director of
schools may be referred to as “superintendent.” Tenn. Code Ann. § 49-2-301(d). The education statutes use the terms
interchange ably, and references to superintendent are deemed references to the director of schools. Tenn. Code Ann.
§ 49-2-203(a)(15)(A).
6
Prior to the EIA, such duties lay with the Board, the superintendent, or a combination, depending on the type
of employee and the action involved.
3
provides that it is the duty of the Board of Education to assign to the director the duty:
Within the approved budget and consistent with existing state laws, board policies
and locally negotiated agreements covering licensed personnel, to employ, transfer,
suspend, non-renew and dismiss all personnel, licensed or otherwise, except as
provided in § 49-2-203(a)(1) [requiring grants of tenure be approved by the Board]
and in chapter 5, part 5 of this title [protections and discipline of tenured teachers].
Nothing in this subdivision shall be construed to alter, diminish, or supersede the
Education Professional Negotiations Act, compiled in chapter 5, part 6 of this title.
Tenn. Code Ann. § 49-2-301(f)(1)(EE).7
Additionally, and more specifically, Tenn. Code Ann. § 49-2-303(a)(1) grants the
superintendent the exclusive power and duty to select, contract with and hold accountable all
principals. Tenn. Code Ann. § 49-2-303(a)(1) states:
Each local superintendent shall employ principals for the public schools. The
employment contract with each principal shall be in writing, shall not exceed the
contract term of the current superintendent,8 and may be renewed. The contract shall
specify duties other than those prescribed by statute and shall include performance
standards and require periodic written evaluations by the superintendent to be
conducted in the manner and frequency that the superintendent determines proper.
Reasons for the non-renewal of a contract may include, but are not limited to,
inadequate performance as determined by the evaluations. A principal who has
tenure as a teacher shall retain all rights of such status, expressly including those
specified in § 49-5-510.9
7
Amend ments after the Education Improvement Act of 1992 added the additional language regarding “existing
state laws, board policies and locally negotiated agreements.” 1998 Tenn. Pub. Acts, ch. 826.
8
A board may employ a director of schools under a written contract of up to four (4) years duration, which may
be renewed. Tenn. Code Ann. § 49-2-203 (a)(15)(A).
9
Tenn. Code A nn. § 49-5 -510 is par t of the Tea cher Te nure Act, §§ 49-5-50 1 - 515. “[T]he b asic purpose of
the Teacher Tenure Act . . . is to afford a measure of job security to those educato rs who have attained tenure status. The
General Assembly re cognized that the efficient administration of the local educational systems of this state requires
stability of programs and trained personnel.” Ryan v. Anderson, 481 S.W.2d 371, 374 (Tenn. 1972) (citing State v.
Yoakum, 201 T enn. 180 , 297 S.W .2d 635 (1956) ). Tenn. C ode Ann . § 49-5-501(11)(A) (1996) defines “tenure” as the
“statutory requirements, conditions, relations and provisions in this part, under which a teacher employed by a board
holds a position as a teacher und er the jurisdictio n of the Bo ard.” A tea cher who h as been gra nted perm anent tenure is
entitled to certain procedural safeguards, including charges, notice, hearings, and de novo judicial review before he or
she can be dismissed or suspended. Tenn. Code Ann. § 49-5-511 - 513.
4
The section’s reference to teacher tenure rights reflects the well-settled principle that a
principal has no tenure in that position.10 Tenn. Code Ann. § 49-5-501(11)(A); McKenna v. Sumner
County Bd. of Educ., 574 S.W.2d 527, 530 (Tenn. 1978). Tenn. Code Ann. § 49-2-303(a)(1) clearly
dispels any expectation of tenure in the position of principal, making retention in such position
subject to contracts which, by statute, cannot exceed four years. Reassignment of a principal to a
position with only teaching duties has been held to be a “transfer within the system,” as that term is
used in Tenn. Code Ann. § 49-5-510. Pullum v. Smallridge, 652 S.W.2d 338, 340-41 (Tenn. 1983);
White v. Banks, 614 S.W.2d 331, 334 (Tenn. 1981); Warren v. Polk County Bd. of Educ., 613
S.W.2d 222, 225-26 (Tenn. 1981); McKenna v. Sumner County Bd. of Educ., 574 S.W.2d at 533-34.
That statute provides:
The superintendent, when necessary to the efficient operation of the school system,
may transfer a teacher from one location to another within the school system, or from
one type of work to another for which the teacher is qualified and licensed; provided,
that transfers shall be acted upon in accordance with board policy and any locally
negotiated agreement.
Tenn. Code Ann. § 49-5-510.
This provision authorizes a superintendent to transfer a tenured teacher when the transfer is
for the efficient operation of the school system. Our courts have interpreted that statute as giving
superintendents (and boards when board approval was required for transfer) wide discretion, and
courts will generally not interfere in such a management decision so long as the transfer was not
arbitrary and capricious or actuated by political or other improper motives. Pullum v. Smallridge,
652 S.W.2d at 340; McKenna, 574 S.W.2d at 527; Mitchell v. Garrett, 510 S.W.2d 894, 898 (Tenn.
1974); Gaylon v. Collins, No. 03A01-9711-CH-00513, 1998 WL 331300 at *7 (Tenn. Ct. App. Jun.
24, 1998) (perm. app. denied Nov. 2, 1998). Further, the courts have presumed “ that the actions
of a board or superintendent are not arbitrary and capricious, but are reasonable and fair unless there
is clear evidence to the contrary.” Mitchell, 510 S.W.2d at 898 (citing Blair v. Mayo, 224 Tenn. 108,
450 S.W.2d 582(1970)).
B. Locally Negotiated Agreements
As quoted above, some of the relevant statutes now include limitations on superintendent
discretion based upon compliance with locally negotiated agreements covering licensed personnel.
A 1998 enactment added the words “and consistent with existing state laws, board policies, and
locally negotiated agreements covering licensed personnel” to Tenn. Code Ann. § 49-2-
10
Marion County has a private act which allows principals to gain tenure in position. There is some question
whether that act remain s valid due to its apparent c onflict with the EI A. See Knox County Educ. Ass’n v. Knox C ounty
Bd. of Educ., No. E2000-01019-COA-R3-CV, 2001 WL 87472 *6 (Tenn. Ct. App. Feb. 2, 2001) (no Tenn. R. App. P.
11 application filed). Tha t issue is not before us.
5
301(f)(1)(EE) regarding the superintendent’s authority to employ, transfer, suspend, non-renew and
dismiss all employees. 1998 Tenn. Pub. Acts, ch. 826. In addition, Tenn. Code Ann. § 49-5-510
requires that the transfer of a tenured teacher be made “in accordance with any locally negotiated
agreement.” Id.
The locally negotiated agreements referred to in these statutes are those adopted pursuant to
Tenn. Code Ann. § 49-5-601 et. seq., the Education Professional Negotiations Act. The Act
authorizes recognition of a professional employees’ organization as the exclusive representative of
all professional employees of a board of education for the purpose of negotiating with the board;
negotiation on specified conditions of employment; and the preparation and execution of a
memorandum of understanding reflecting agreements reached in the negotiation. Tenn. Code Ann.
§§ 49-5-605, -606, -611, and -612.
It is clear, however, that the legislature did not intend, by adoption of the Negotiations Act,
to alter the assignment of duties made elsewhere in statutes pertaining to local administration of
schools. Tenn. Code Ann. § 49-5-604 specifically expresses the legislative intent in this regard:
Those rights and responsibilities of boards of education, superintendents and
professional employees as contained in this title are not statutorily modified or
repealed by this part.
In addition, the legislature has limited the scope of negotiations and the subjects which may
be covered in an agreement between a board of education and the professional association
negotiating on behalf of the professional employees. In particular, the legislature has stated:
The board of education and the recognized professional employees’ organization
shall negotiate in good faith the following conditions of employment:
(1) salaries or wages;
(2) grievance procedures;
(3) insurance;
(4) fringe benefits;
(5) working conditions;
(6) leave;
(7) student discipline procedures; and
(8) payroll deductions.
Tenn. Code Ann. § 49-5-611(a). The statute further provides that “nothing shall prohibit the parties
from agreeing to discuss other terms and conditions of employment in service, but it is not bad faith,
as set forth in this part, to refuse to negotiate on any other terms and conditions.” Tenn. Code Ann.
§ 49-5-611(b).
In addition to limiting the scope of negotiations, the legislature has also limited the scope of
6
any agreement resulting from the negotiations.
The scope of a memorandum of agreement shall extend to all matters negotiated
between the board of education and the professional employees’ organization;
provided, that the scope of such agreement shall not include proposals contrary to:
(1) Federal or state law or applicable municipal charter;
(2) Professional employee rights defined in this part; and
(3) Board of education rights contained in this title.11
Tenn. Code Ann. § 49-5-612(a).
In addition, boards and associations entering into agreements regarding the conditions of
employment for professional employees of the board are specifically authorized to include in such
agreement “procedures for final and binding arbitration of such disputes as may arise involving the
interpretation, application or violation of such agreement.” Tenn. Code Ann. § 49-5-612(c).
C. The Agreement
The relevant provisions of the agreement between the Marion County Education Association
and the Marion County Board of Education include, first, the arbitration provision. In essence, that
provision allows the Association to submit to final and binding arbitration any grievance filed by an
employee which is not resolved to the satisfaction of the grievant or the Association. While the
provision gives the arbitrator the authority to award reinstatement, financial reimbursement, damages
and other remedies, it specifically states the arbitrator has no power to rule on matters of law.
The agreement defines grievance as “any claim by a teacher or the Association that there has
been a violation, misinterpretation, or misapplication of the terms of this agreement; a violation of
the right of the teacher or the Association to fair treatment; or a violation, misinterpretation, or
misapplication of any established written policy or practice of the Board.”
Mr. Stewart’s grievance form described his grievance as:
Reduction in rank with possible loss of compensation and professional advantage,12
coupled with improper use of personnel file, no evaluations and multiple contract
11
Although the statute speaks of rights of a board of education, the Education Professional Negotiations Act
cannot be constru ed to mo dify those powers that were later transferred to the director of schools from the board by the
Educatio n Improv ement Ac t.
12
The grievance used these terms because they are used in the agreem ent as triggering r equireme nts for certain
procedures. Remova l of a principa l from his or her supervisory duties and reassignment to a teaching position, even
when accomp anied by a re duction of sa lary is a transfer within the system, not a demotion, suspension, or removal from
office. McKenna, 574 S.W.2d at 530. On ap peal, the Association and Mr. Stewart take the position his reassignment
was a transfer un der Te nn. Code Ann. § 49 -5-510 an d subject to the transfer pro visions of the ag reement.
7
violations tied to removal from principal’s position.
He also listed the specific provisions of the agreement he alleged to have been violated. On
appeal, Mr. Stewart and the Association identify those provisions as follows:13
1. All transfers shall be performed pursuant to T.C.A. Title 49(5-510)
2. An involuntary transfer or reassignment shall be made only after a meeting
between the employee involved and the superintendent at which time the employee
will be notified in writing of the specific reasons for the change.
3. In those cases where an involuntary transfer is to be made for administrative
reasons, the transfer shall be made for just case [sic], and there shall be a majority
vote of the Board with the recommendation of the superintendent.
4. Non-tenured teachers shall be observed for purposes of evaluation at least three
(3) times during the school year. Two of these observations shall occur prior to
March 1 of each year and shall be scheduled so that no more than one (1) observation
is made in any thirty (30) day period.
5. The Board shall not base any adverse action against a teacher upon materials
which are not contained in such teacher’s personnel file unless the materials had been
placed in the file at the time of the incident giving rise to such materials and the
teacher had been notified at such time that such materials were being placed in the
file.
6. The Board, in recognition of the concept of progressive improvement, shall require
notification to a teacher in writing of any alleged deficiencies, indicate expected
correction, and indicate a reasonable period of correction.
(2) In the event that a deficiency could result in termination of employment, the
teacher shall be responsible for notifying the Association.
7. No teacher shall be suspended, disciplined, reprimanded, adversely evaluated,
reduced in rank or compensation or deprived of any professional advantage without
just cause.
8. The Association and the Board agree that there shall be no discrimination in the
hiring, training, assignment, promotion, transfer or discipline of teachers or in the
application or administration of the Agreement on the basis of race, creed, color,
national origin, age, sex, domicile or marital status. Further, there shall be no
13
The parties identify these provisions by the numbering system and headings in the agreement. Because they
are not seq uential, we are listing them nume rically for the sake of simplicity.
8
discrimination against any teacher because of his/her membership in the Association,
his/her participation in any activities of the Association or collective professional
negotiations with the Board, or his/her institution of any grievance, complaint or
proceeding under this agreement, or law or otherwise with respect to any terms or
conditions of employment.
9. (A) The personal life of a teacher is an appropriate concern of the Board when it
prevents the teacher from performing properly his/her assigned functions
(B) No religious or political activities of any employee or the lack thereof shall be
grounds for discipline or discrimination with respect to the employment of such
teacher.
III.
In the case before us, Mr. Stewart and the Association contend that the Board agreed to
arbitrate a dispute arising under the agreement and that Mr. Stewart’s transfer was the proper subject
of the grievance procedures established in the agreement. Therefore, they contend, the trial court
correctly concluded that the grievance was arbitrable. They further contend that the relief granted
by the arbitrator was within his power under the agreement, and that the merits of the grievance were
not before the court.
The Board, on the other hand, contends that the authority to select and appoint principals is
a non-delegable duty resting exclusively with the director of schools, and the statutes cannot be read
to make a delegation to the Board, the Association, or an arbitrator. They further contend that this
statutorily-conferred responsibility cannot be limited by the collective bargaining agreement,
according to the terms of the bargaining statutes themselves.
In Carter County Bd. of Educ. v. Carter County Educ. Ass’n, No. 03A01-9509-CH-00318,
1996 WL 251827 at *3 (Tenn. Ct. App. May 14, 1996) (perm. app. denied Oct. 7, 1996), this court
determined that the statutory duty to elect a principal is non-delegable and not an issue subject to
collective bargaining. In that case, a disappointed applicant for a vacant principal position, who was
also a teacher in the system, filed a grievance challenging the hiring of another applicant, and she
and the Association requested binding arbitration under the collective bargaining agreement. The
trial court enjoined the arbitration, and this court affirmed.
In reaching its conclusion, this court found that, by then-existing statute, only the board of
education had the right or authority to fill the position of principal and, consequently, selection of
a principal was not subject to collective bargaining. We further stated:
And even if such an issue were included by the mutual consent of the parties into the
collective bargaining agreement, it would be in direct violation of T.C.A. § 49-5-
611(a) and § 49-5-602(a)(3). It would also be a non-delegable authority not subject
to binding arbitration and in violation of § 49-2-203(a)(1) which confers the duty on
9
the local board of education to elect principals, supervisors, etc.
Id. at *3.
The court also determined that the apparently universal rule is that issues that lie within the
prerogative of management are not proper subjects for collective bargaining or negotiation. Id. In
particular, the court relied on 84 A.L.R.3d 242, Bargainable or Negotiable Issues in State Public
Employment Relations, and the authorities cited therein:
Perhaps the single greatest, and almost universally recognized, limitation on the
scope of bargaining or negotiation by state public employees is the concept of
managerial prerogative as it has developed in the public sector. In essence, the
concept creates a dichotomy between “bargainable” issues, that is, those issues which
affect conditions of employment, and issues of “policy” which are exclusively
reserved to government discretion and cannot be made mandatory subjects of
bargaining.
Id. at *3 (quoting 84 A.L.R.3d 242). The court also quoted with approval the decision of the
Supreme Judicial Court of Massachusetts in Berkshire Hills Reg’l Sch. Dist. Comm. v. Berkshire
Hills Educ. Ass’n, 377 N.E.2d 940 (Sup. Jud. Ct. Mass. 1978), which held that the power to appoint
a principal is within the school committee’s non-delegable managerial prerogative, largely because
of the scope of the principal’s duties and role in management. This court determined that Tennessee
statutes give principals an even broader range of duties than Massachusetts statutes.
The Association and Mr. Stewart argue that the Carter County decision is not applicable
herein because it dealt with the filling of a vacant principalship, not the transfer of a principal. They
also argue that the 1998 amendments requiring that the superintendent’s authority regarding certain
personnel decisions be exercised consistently with locally negotiated agreements were a legislative
overruling the Carter County decision. We note that the 1998 amendments regarding compliance
with locally negotiated agreements were not added to the statute on the superintendent’s authority
specifically regarding employment of principals.
In a more recent case, this court examined whether principals are members of the bargaining
unit for purposes of negotiating certain terms of the collective bargaining agreement. Knox County
Educ. Ass’n v. Knox County Bd. of Educ., No. E2000-01019-COA-R3-CV, 2001 WL 87472 (Tenn.
Ct. App. Feb. 2, 2001) (no Tenn. R. App. P. 11 application filed). Adopting language from Tenn.
Op. Att’y Gen. 97-106 (July 28, 1997) and reading the Education Improvement Act together with the
Education Professional Negotiations Act, this court concluded that “principals are members of the
bargaining unit for the purpose of negotiating those aspects of employment still under the control
of the Board, while they are not members of the bargaining unit for the purpose of negotiating
employment issues that are under the control of the superintendent.” Id. at *11. The Opinion of the
Attorney General relied upon by the court opined that under the EIA, principals negotiate with the
superintendents, or directors, “regarding matters related to performance, accountability, and contract
10
renewal. Therefore, the bargaining units may not negotiate these matters with the school board on
behalf of the principals.”
Both the Carter County and the Knox County opinions are based on the fact that the
Education Improvement Act gives exclusive authority to the director of schools to employ principals,
to contract with them for non-statutory duties and performance standards, and to determine that a
contract should not be renewed. Tenn. Code Ann. § 49-2-303(a)(1). The statute establishes no
requirement for a minimum length of contract, but expressly limits its duration to the term of the
contracting director of schools. It also includes no requirement that actions regarding employment
of principals be consistent with collective bargaining agreements.
Specific statutory provisions, such as the one governing employment of principals, will be
given effect over conflicting general provisions, such as Tenn. Code Ann. § 49-2-301(f)(1)(EE)
governing all employees of the school system. Dobbins v. Terrazzo Mach. & Supply Co., Inc., 479
S.W.2d 806, 809 (Tenn. 1972).
The reason and philosophy of the rule [giving effect to specific statutory provisions
over general ones] is that where the mind of the legislature has been turned to the
details of a subject and they have acted upon it, a statute treating the subject in a
general manner should not be construed as intended to affect the more particular
provision.
Lambert v. Invacare Corp., 985 S.W.2d 446, 448 (Tenn. Ct. App. 1998) (quoting Woodroof v. City
of Nashville, 183 Tenn. 483, 192 S.W.2d 1013, 1015 (Tenn. 1946)).
IV.
The Association and Mr. Stewart do not dispute that it was Mr. Stewart’s transfer from the
principal position that was the subject of the grievance and the arbitration. They maintain, however,
that the manner in which a principal is transferred to a teaching position is properly subject to
collective bargaining, includable in an agreement resulting from that bargaining, and, therefore
subject to grievance and arbitration.14
14
The Association has argued that courts are limited in addressing the merits of a gr ievance that is su bject to
an arbitration clause, citing, among other cases, Mechanics Universal Joint Div. Borg-Warner Corp. v. Fooshee, 354
S.W.2d 59 (Tenn. 1962) and Major League Baseball Players Ass’n v. Garvey, 69 U.S.L.W. 3725 (2001). We do not
disagree and do not interp ret the questio n before us o r our resolutio n of it as addre ssing the merits o f Mr. Stewa rt’s
transfer. Neither do we view the question to be whether the agreement makes the transfer grievable and, therefore,
subject to arbitration. See Un ited Steelw orkers of A meric a v. Warri or & Gulf Navigation Co., 363 U.S. 574, 582-83
(1960). (“An orde r to arbitrate the particular grievance sh ould 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.”) The question
before us is whether state law authorizes the inclusion in a collective bargaining agreement between a school board and
the professional employees’ association provisions which require arbitration of a superintendent’s choice of principals.
If such provisions are beyond statutory authority, they cannot be enforced.
11
Where, however, the agreement allows someone other than the superintendent to decide who
will be principal at a particular school, that argument must fail. The legislature has clearly
determined that superintendents have exclusive authority to employ principals, and we find no
language in the Education Professional Negotiations Act or elsewhere to indicate that the legislature
intended that authority could be exercised by an arbitrator.
In Tennessee Small Sch. Sys. v. McWherter, 894 S.W.2d 734 (Tenn. 1995), the Tennessee
Supreme Court explained the enactment of the Education Improvement Act of 1992 against the
backdrop of litigation over funding of school systems and the interrelationship of the funding
mechanism, the Basic Education Program, part of the EIA, and the new provisions relating to
performance standards for local school systems and accountability of local school officials.
The significant provisions of the BEP other than funding are characterized as
governance and accountability measures. These reforms are designed to address “the
relative indifference” to education demonstrated by some local systems, which this
Court found to be a contributing factor to the inequities in educational opportunities.
Tennessee Small School Sys. v. McWherter, 851 S.W.2d at 156. The BEP purports
to accomplish these objectives by granting to local officials more discretion in the
management of the system and holding those officials accountable for obtaining
measurable accomplishments in providing an effective educational system.
Id. at 736-37 (emphasis added).
Interpreting the Education Professional Negotiation Act to remove decisions about who will
fill the important managerial role of principal15 at a particular school from the director of schools
would be inconsistent with the legislative intent as expressed by our Supreme Court. It would also
be inconsistent with the clear language of Tenn. Code Ann. § 49-2-303(a)(1). By limiting a
principal’s contract to the term of the current superintendent, the legislature clearly intended that a
new superintendent be free to choose principals unencumbered by pre-existing contractual
obligations. Faced with this clear statement of intent, we are unwilling to interpret less specific
language elsewhere as authorizing usurpation of a superintendent’s right to choose principals
because of an agreement entered into before the superintendent’s term by the Board and the
Association.
The question of whether Mr. Stewart would remain principal of Jasper Elementary School
was not subject to arbitration because that decision was solely the province of the director of schools
and could not be delegated to an arbitrator. See Carter County Bd. of Educ. v. Carter County Educ.
Ass’n, 1996 WL 251827. Therefore, any provisions of the agreement, or any interpretations of those
15
Tenn. Code A nn. § 49-2 -304 sets o ut the broad manageria l, supervisory, a nd policy-re lated duti es of the
principal. In Fleming v. Wade, 568 S.W .2d 287 , 289, 29 0 (Tenn . 1978) o ur Suprem e Court ch aracterized principals as
“key figures in the orderly and efficient operation of the schools.” The court also noted that “The Board of Education
and the superintendent must necessarily be accorde d conside rable discre tion in the employment and retention of such
personne l.”
12
provisions, which purport to remove the authority to select principals from the superintendent are
beyond the permissible scope of such agreements. Tenn. Code Ann. § 49-5-604; Tenn. Code Ann.
§ 49-5-612(a).
In addition, the Association was not empowered to negotiate on behalf of principals any
provisions relating to employment issues under the control of the superintendent. Knox County
Educ. Ass’n v. Knox County Bd. of Educ., 2001 WL 87472 at *11. Neither was the Board of
Education authorized to agree to a limitation on the incoming director of schools’ authority to select,
negotiate directly with, and contract with principals. Thus, any provisions, or any interpretations of
those provisions, which have the effect of limiting the superintendent’s discretion with regard to
selection, length of contract, renewal or non-renewal of contracts, performance, or accountability of
principals are beyond the permissible scope of the agreement.
V.
Mr. Stewart and the Association argue that the agreement may properly include provisions
regarding transfers and that failure to comply with those provisions is a subject for grievance and,
therefore, arbitration. Tenn. Code Ann. § 49-5-510 provides that superintendents may transfer
tenured teachers among schools and among positions “provided, that transfers shall be acted upon
in accordance with board policy and any locally negotiated agreement.” We have already concluded
that an agreement which envisions substitution of the judgment of an arbitrator for discretion of the
director of schools in the selection of principals is not authorized by law. Therefore, to the extent
the transfer sections of the agreement are interpreted to apply to removal of a tenured teacher from
a principalship to a teaching position, they cannot be enforced to allow an arbitrator to reinstate the
transferred teacher to the principal position.16
We do not interpret the 1998 amendment to Tenn. Code Ann. § 49-5-510 to authorize the
inclusion in or enforcement of provisions in a locally negotiated agreement which would restrict the
superintendent’s authority to remove a tenured teacher from a principal position and reassign that
teacher to other duties.
It is well-settled that the guiding principle of statutory construction is to ascertain and
give effect to the legislative intent without unduly restricting or expanding a statute’s
coverage beyond its intended scope. State v. Sliger, 846 S.W.2d 262, 263 (Tenn.
1993). In seeking to ascertain legislative intent, we must look to the entire statute in
order to avoid any forced or subtle construction of the pertinent language. McClain
v. Henry I. Siegel Co., 834 S.W.2d 295 (Tenn. 1992). Accordingly, statutes ‘in pari
materia’ - - those relating to the same subject or having a common purpose - - are to
be construed together, and the construction of one such statute, if doubtful, may be
16
Interpretation of the agreem ent is not befo re this court. W e note, however, that the decision in Knox C ounty
Educ. Ass’n v. Knox County Bd. of Educ. creates some question o n whether those provisions can be applied to transfers
from principal positions.
13
aided by considering the words and legislative intent indicated by the language of
another statute. Belle-Aire Village, Inc. v. Ghorley, 574 S.W.2d 723, 725 (Tenn.
1978); Spence v. Miles Laboratories, Inc., 810 F. Supp. 952 (E.D. Tenn. 1992).
Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn. 1994).
In seeking to ascertain the legislature’s intent, we note that no amendment regarding a locally
negotiated agreement was added to the statute authorizing the superintendent to select and contract
with principals. As explained above, we discern the clear legislative intent is to provide discretion
to the superintendent to make this important personnel decision. We find no clear expression of
intent to subject that discretion to terms negotiated between the board of education and the
association.
The legislature has stated that a principal who is also a tenured teacher retains rights of
tenured teachers, including “those specified in § 49-5-510.” That statute authorizes transfers “when
necessary to the efficient operation of the school system.” Our Supreme Court has explained the
limitations on transfers of tenured teachers and the role of the courts in disputes regarding such
transfers:
An employee so transferred, however, is entitled to be protected from arbitrary and
capricious action, or from transfers actuated by political or other improper motives.
To this end he may bring a direct action in the courts to have determined the question
of whether or not the transfer was made in accordance with the statutory
requirements. Judicial review is limited to determining that question, and must be
conducted in light of the broad discretion which the statutes clearly give to the
superintendent and to the Board.
McKenna v. Sumner County Bd. of Educ., 574 S.W.2d at 534.
This decision recognized that the court’s review should be circumscribed by the statutory
discretion vested in local school boards and superintendents, the inherently executive nature of
personnel management decisions, and the presumption that public officials are discharging their
duties in good faith. State ex. rel. Pemberton v. Wilson, 481 S.W.2d 760, 770 (Tenn. 1972); Mayes
v. Bailey, 209 Tenn. 186, 192, 352 S.W.2d 220, 223 (1961). Thus, the Supreme Court has held that
the scope of judicial review of local transfer decisions is “limited.” Pullum v. Smallridge, 652
S.W.2d at 341; McKenna v. Sumner County Bd. of Educ., 574 S.W.2d at 534. The courts have
continued to limit their review of transfer decisions made by local officials and to afford discretion
to those officials. See, e.g., Springer v. Williamson County Bd. of Educ., 906 S.W.2d 924 (Tenn. Ct.
App. 1995).
Thus, Mr. Turney’s decision to transfer Mr. Stewart was reviewable, but by a court and under
a limited standard of review. A court will not substitute its judgment for that of the superintendent,
but will only inquire into whether the decision was arbitrary, capricious, or improperly motivated.
14
We need not determine whether a collective bargaining agreement may impose substantive
requirements for transfers, such as a for cause limitation, beyond the statutory standard.17 Neither
are we required to determine whether an agreement can impose procedural requirements, such as
notice and a hearing. 18 We have determined that, regardless of compliance with such terms, a
superintendent’s decision to transfer a principal cannot be subjected to binding arbitration wherein
an arbitrator can make the choice of who will be principal.
VI.
The Board asserts that the court improperly granted an injunction requiring the Board to
arbitrate. The Association and Mr. Stewart had requested the injunction on the basis of the Board’s
refusal to arbitrate as provided in the bargaining agreement. The Association and Mr. Stewart assert
that the Board’s actions in seeking a declaratory judgment and stay of arbitration constituted refusal
to arbitrate.
Parties can agree to arbitrate certain issues. However, the agreement herein removed from
an arbitrator’s authority any questions of law. As this opinion demonstrates, the question of whether
Mr. Stewart’s transfer was subject to arbitration is a question of law requiring interpretation of
several statutory provisions. The Board properly sought judicial interpretation and asked for a
declaratory judgment which would have disallowed the arbitration. We find nothing improper in this
action, and do not consider it evidence of bad faith refusal to arbitrate under Tenn. Code Ann. § 49-
5-609(a)(8).
The injunction was issued as part of the trial court’s decision that the transfer was subject to
arbitration. In view of our decision herein, and in view of this court’s earlier denial of the Board’s
motion to stay, the question of whether the injunction should have been granted is moot.
VII.
For the reasons stated herein, the decision of the trial court requiring the Board to submit to
binding arbitration over Mr. Stewart’s transfer is reversed. Since the Board was not required to
arbitrate the transfer, the result of the arbitration is void. Further, the arbitrator was without authority
17
The agreement herein attempts to subject the director’s determination regarding transfer, when that transfer
is “involuntary” and made for administrative reasons, to approval by the Board. Such a requirement imposed on a
transfer from a principalship would ap pear to dire ctly conflict with the director’s authority under Tenn. Code Ann. § 49-
2-303(a)(1).
18
Absent such provisions, our courts have determined that transfer of a tenured employee need not be preceded
by a formal written notice or a hearing . McKenna v. Sumner County Bd. of Educ., 574 S.W .2d at 533 -34; Pemberton
v. Wilson, 481 S.W.2d at 770.
15
to reinstate Mr. Stewart and that decision cannot be enforced. This cause is remanded to the trial
court for further actions consistent with this opinion. Costs of this appeal are taxed to the
Association and Mr. Stewart, for which execution may issue if necessary.
____________________________________
PATRICIA J. COTTRELL, JUDGE
16
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765 F.2d 1121
*U.S.v.Hulsey
85-8011
United States Court of Appeals,Eleventh Circuit.
6/11/85
1
N.D.Ga.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 11th Cir.R. 23.
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43 B.R. 658 (1984)
In re CONTINENTAL RESOURCES CORP., Debtor.
Bankruptcy No. BK-84-00061-B.
United States Bankruptcy Court, W.D. Oklahoma.
October 26, 1984.
D. Kent Meyers and Ann L. Faford of Crowe & Dunlevy, Oklahoma City, Okl., William J. Reifman, James M. Lawniczak and Patricia R. McMillen of Mayer, Brown & Platt, Chicago, Ill., for Continental Illinois Nat. Bank and Trust Co. of Chicago.
W.J. Winterstein, Jr. and Stephen J. Moriarty of Edwards, Roberts & Winterstein, *659 Oklahoma City, Okl., for the Federal Deposit Ins. Corp.
MEMORANDUM OPINION AND ORDER
ROBERT L. BERRY, Bankruptcy Judge.
This matter is before the Court on an application for classification of claim. A hearing was held on August 16, 1984, with the parties submitting extensive briefs, both pre- and post-hearing. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 157.[1] A discussion of the facts leading up to the application will put the matter in its proper posture.
Sometime in June of 1981, the debtor herein, Continental Resources Corp. (hereinafter "CRC") and the former Penn Square Bank, N.A. (hereinafter "PSB"), executed a certain secured revolving credit agreement whereby PSB committed to loan to CRC the sum of $20,000,000.00 on a revolving basis. Pursuant to this agreement, CRC executed a promissory note in the amount of $20,000,000.00, evidencing the loan under the revolving credit agreement. This note was subsequently renewed in June of 1982 in the amount of $19,000,000.00. As security for this promissory note, CRC granted to PSB a mortgage on all of CRC's oil and gas wells. These mortgages were filed as security agreements and financing statements with the court clerks of the respective counties in which the wells are located. Continental Illinois National Bank & Trust Company of Chicago (hereinafter "CINB") became a 95% participant in the June loan.
Sometime in December of 1981, CRC obtained an additional commitment to borrow from PSB in the amount of $10,000,000.00. Some $5,850,000.00 was actually funded. CNB is not a participant in this second loan.
On July 5, 1982, the Comptroller of the Currency of the United States declared PSB insolvent and appointed the Federal Deposit Insurance Corporation (hereinafter "FDIC") as receiver of PSB, pursuant to 12 U.S.C. §§ 191 and 1821(c), for the purpose of taking custody of and liquidating the insolvent bank's assets.
By the instanter application, the FDIC in its capacity as receiver of PSB seeks to have the Court determine that the loan of December, 1981 is secured by the June, 1981 oil and gas mortgages.
The issue, as framed by the FDIC, can be stated thusly: irrespective of whether the oil and gas mortgages are classified as either real, or as personal property, under Oklahoma real property law the omnibus provision in the respective mortgages is enforceable, and under Oklahoma's Uniform Commercial Code, the future advance clause contained in the promissory note is valid. The FDIC argues that as the documents are clear and unambiguous, any evidence of subjective intent in executing the documents in question is violative of the parol evidence rule.
The position of CINB in this is that as a matter of law, owing to the participation agreement sold to CINB by PSB, the FDIC, as receiver of PSB, has no debt that is secured by the mortgages, that the FDIC's only interest is as an agent and not as an economic investor; that PSB by way of the December note has diluted CINB's collateral and therefore there has occurred a breach of a contractual duty to deal in good faith owed to CINB. More importantly, CINB argues that as the December loan was not of the "same class" as the June loan and as it was not within the contemplation of either the borrower or the lender for the December loan to be secured by the oil and gas mortgages, the future advance clause contained in the respective mortgages is invalid.
Each of the mortgages in question provide the following so-called "omnibus" provision:
*660 This mortgage is given to secure the following indebtedness . . . [a]ll loans and advances which Mortgagee may hereafter make to Mortgagor, and all other and additional debts, obligations and liabilities of every kind and character of Mortgagor . . . together with any and all renewals and extensions of such loans, advances, debts, obligations and liabilities, or any part thereof, and all interest, attorney's fees and other charges thereof, or incurred in connection therewith.
CINB has not taken issue with the FDIC's interpretation of the law with respect to mortgages re omnibus provisions and the Uniform Commercial Code re future advance clauses. It is clear that "[a] mortgage to secure future advances with terms extending the security to other obligations is recognized as valid in Oklahoma." First National Bank in Dallas v. Rozelle, 493 F.2d 1196, 1201 (10th Cir.1974) (citations omitted). See also First Nat. Bank & Trust v. Security Nat. Bank, 676 P.2d 837 (Okla.1984) (creditor may obligate the collateral to cover future advances or other value in the initial security agreement). The reason for the necessity of such language is apparent. With the advent of larger and more complex credit transactions, and greater sophistication among both borrowers and lending institutions, the documentation evidencing such transactions may be measured not in pages, but in pounds. The above-quoted language is not mere excess verbiage. Rather, it serves an important function. It would work an extreme impracticality to execute such documentation time and again as a result of further advances being extended from an identical lender. In the instant case, the quoted language appears clearly on the first page of each mortgage; it is not buried in fine print toward the latter portion of the document.
In the course of the hearing the FDIC introduced into evidence a copy of a promissory note (hereinafter the "FDIC note") signed by George N. Keeney, the corporate comptroller of CRC, and dated December 16, 1981. This note, in the face amount of $10,000,000.00, reflects that the purpose of the loan was for a "production revolver". The collateral was listed as "oil and gas mortgages". The maturity date was January 29, 1983. The FDIC argues that this note, coupled with the mortgages executed in June of 1981, clearly and unambiguously demonstrates an intent to bring the December, 1981 loan within the future advance clause of the executed mortgages.
To rebut this, CINB introduced into evidence an unexecuted copy of the December 16, 1981 note (hereinafter the "CINB note"). This note, also in the face amount of $10,000,000.00, reflects that the purpose of the loan was for a "lease acquisition line of credit". The collateral was listed as "negative pledge on leases acquired under the line". The maturity date was January 29, 1982. CINB also introduced into evidence a negative pledge agreement entered into between CRC and PSB whereby CRC, in consideration of a $10,000,000.00 loan, agreed not to transfer, sell or encumber the oil and gas properties which are the subject of the June mortgages, without the consent of PSB. CINB further introduced into evidence a commercial loan worksheet, prepared by PSB, regarding CRC and which reflected the identically stated collateral and purpose as the CINB note. As did a PSB internal memorandum on CRC, dated October 20, 1981, introduced into evidence at the hearing.
When questioned as to the discrepancy between the FDIC note and the CINB note, Mr. Keeney testified that the intent of both CRC and PSB was to enter into a transaction whereby a loan would be secured by a negative pledge, that the reason for his not signing the CINB note was owing to the short maturity date. His testimony was that he signed the FDIC note in blank with the understanding that all save the maturity date was to have been identical and was unaware of any alteration in collateral description.
Also called to testify on behalf of CINB was Russell Bainbridge. Mr. Bainbridge, formerly an employee of CINB was, at the time of the loan in question, the account *661 executive in charge of the CRC account at PSB. Mr. Bainbridge testified that he negotiated the December, 1981 loan on behalf of PSB and that it was the parties' intent that such loan was to be unsecured. He further testified that it was he who prepared the October 20, 1981 memorandum. This memorandum is a report to the loan committee at PSB which detailed the terms and conditions of the December loan. The report is "noted" by way of Mr. Bainbridge's signature. There is also a signature line for Mr. Bill G. Patterson, senior executive vice president, to signify approval, which remained unsigned. We point this out without commenting on its significance or lack thereof. However, the commercial loan worksheet does reflect approval by way of the initials "RBB" and "BGP", ostensibly the initials of Messrs. Bainbridge and Patterson. Mr. Bainbridge further testified that his initials appear on the CINB note, that a bank officer initials a note when it is to be "booked", the initialling being a form of approval. Mr. Bainbridge testified that the initials "RBB" on the FDIC note were not his initials and that he had no recollection of initialling such a note.
Finally, Mr. Richard Lucas, who at the time of the loans in question was the banking officer at CINB involved with the CRC account, testified that Mr. Bainbridge had conveyed to him that the December, 1981 loan was to be secured by the negative pledge agreement.
The seminal case in this matter is First National Bank in Dallas v. Rozelle, supra. Rozelle involved the interpretation of a mortgage containing a future advance clause. In Rozelle the bank (the mortgagee) argued that the mortgage at issue was unambiguous and must be construed without resort to parol evidence. Rozelle (the mortgagor) argued that all the proof of the surrounding circumstances and intent should be considered. The Tenth Circuit agreed that the surrounding circumstances and the relationship of the parties should be taken into consideration; that construing the contract in the light of the surrounding circumstances known to the parties at the time of execution does not violate the parol evidence rule. And this is true even if the writing would be deemed unambiguous. Id. at 1200. See Chalamidas v. Sierra Life Ins. Co., 632 F.2d 1381 (10th Cir.1980) (trial court properly considered the general surrounding circumstances in interpreting a contract). Nevertheless, "[c]onsideration may not be given to the statements of either party as to their subjective intent in making the written contract." First National Bank in Dallas v. Rozelle, supra, at 1201. "The language of [a] contract, unless ambiguous, represents the intention of the parties. The intent deduced from this objective matter, not the parties' subjective understandings, is controlling." Kimbell Foods, Inc. v. Republic Nat. Bank, 557 F.2d 491, 496 (5th Cir.1977) (citing First National Bank v. Rozelle, supra). "Testimony as to . . . subjective intent in receiving the future advance clause [is] a classic violation of the parol evidence rule and clearly inadmissible." 557 F.2d at 496. In Oklahoma, the law governing contract interpretation places primary significance on the intent of the parties at the time of contracting. Amoco Production Co. v. Lindley, 609 P.2d 733 (Okla.1980).
Relying on the rule of Security Nat. Bank v. Dentsply Professional, 617 P.2d 1340 (Okla.1980), CINB has attempted to distinguish the holding in Rozelle. Dentsply articulated the test that whether future liabilities fall within the ambit of a future advance clause is to be determined by whether the debts are of the "same class as the primary obligation" and "in contemplation of the parties at the time the agreement was executed." 617 P.2d at 1346 (citations omitted). Much of the testimony at the hearing revolved around the parties' intent, with CINB attempting to demonstrate that both parties intended that the December, 1981 note was to be secured by the negative pledge.
Assuming, arguendo, that we are justified in examining the parties' intent, we note that the parties' intent was not totally in accord. Mr. Keeney testified that the *662 reason he did not sign the CINB note was owing to its short maturity date. Yet, both the commercial loan worksheet and the October 20, 1981 memorandum reflect a maturity date of January 29, 1982, which echoes the maturity date on the CINB note. These were documents prepared under the direction of Mr. Bainbridge. The point, albeit minor, merits comment.
Isolating solely on the December note, Mr. Bainbridge testified that the initials on the FDIC note were not his and that he had no recollection of initialling such a note. We have examined the four documents entered into evidence at the hearing purportedly bearing Mr. Bainbridge's initials: the FDIC note, the CINB note, the June, 1982 renewal note, and the commercial loan worksheet. Quite naturally, none of the initials are exactly alike. Apart from Mr. Bainbridge's failure to recollect the initialling, there was no evidence introduced which would tend to show that the initials on the FDIC note were not of his making. Mr. Bainbridge's recollection aside, we cannot say that he did not initial the FDIC note.
With these prefatory comments in mind, we do not believe we can consider testimony regarding the parties' intent surrounding the December, 1981 loan. Rozelle stated that statements of either party as to subjective intent may not be given consideration. Rather we are told that we are to look at the "surrounding circumstances" and "relationship of the parties". We cannot then, look at the December, 1981 loan as though it were in a vacuum. The circumstances, in toto, must be examined. The issue is not whether the parties intended for the December, 1981 loan to be "secured" by a negative pledge, but rather whether the future advance clause contained in the oil and gas mortgages is to be enforced. As Rozelle clearly states, such a mortgage extends the security to other obligations. To consider the subjective intent of the parties regarding the December, 1981 loan would be to totally abrogate the validity and significance of the future advance clause. This we cannot do.[2] Accordingly, we will not take into consideration the subjective intent of the parties regarding the December loan.
We are further compelled to reach this decision from a practical standpoint. Throughout the course of the hearing the December loan was classified as "secured" by a negative pledge agreement, that said agreement was the "collateral" for the December loan. While these characterizations may be employed for purposes of convenience in the context of banking transactions, they are totally inaccurate in a legal sense.[3] A negative pledge is merely an agreement to forbear from taking some manner of action. CINB in its brief admits that a negative pledge cannot be a security interest. So in June of 1981, PSB makes a loan of $20,000,000.00, secured by oil and gas mortgages. Six months later, we are to believe that PSB was willing to loan an additional $10,000,000.00 without taking any security. What had so drastically altered the financial status of CRC to merit such treatment? It would appear to be more plausible to infer that PSB was willing to make such additional loan cognizant of the fact that such a loan would be secured pursuant to the future advance clause contained in the June mortgages. During cross-examination Mr. Bainbridge testified that in December of 1981 he was aware PSB held the oil and *663 gas mortgages in question, and when asked if that knowledge entered into his decision in making the December loan stated that the bank considered CRC to possess a good credit rating. Indeed, at the time, and in light of the mortgages containing a future advance clause, PSB would be completely justified in such an assumption.
CINB has also posited that the December, 1981 loan cannot be secured by the future advance clause since the December loan was not of the "same class" as the primary (the June, 1981) obligation, this being the second requirement of Dentsply.
At the hearing Mr. Keeney testified that CRC was an oil and gas operation and development company; that the proceeds of the June, 1981 loan were utilized for oil well completion costs and ordinary working capital expenditures. He testified that the purpose of the December, 1981 loan was to obtain funds for acreage acquisition. CINB argues that as the proceeds of the December loan were utilized for expenditures different from those of the June loan, the loans were not of the "same class" and therefore fail the Dentsply mandate. In Dentsply, the Oklahoma Supreme Court affirmed a state court ruling that an overdraft on a debtor's business bank account was secured by the future advance clause of a security agreement covering business equipment, but that the future advance clause did not secure overdrafts on the debtor's personal bank account. But see Thorp Sales Corp. v. Dolese Bros. Co., 453 F.Supp. 196 (W.D.Okla.1978). "The Court is convinced . . . that it is no longer necessary, as between the original lender and the original debtor, for future advances to be of the same class as the primary obligation." Id. at 200. Without discussing the issue, the Tenth Circuit in First National Bank in Dallas v. Rozelle, supra, held that loans advanced for ranching operations were secured by a prior oil and gas mortgage which contained a future advance clause. As one court noted, "[t]he application of the `same class' test . . . has been criticized and explicitly or implicitly has been rejected by some courts." In re Johnson, 9 B.R. 713, 715 (Bankr.M.D.Tenn. 1981) (citing First National Bank in Dallas v. Rozelle, supra and Thorp Sales Corp. v. Dolese Bros. Co., supra).
Whether the "same class" doctrine is alive and prospering in Oklahoma we need not decide for, having examined the nature of the June and December loans, we cannot say that they are so wholly unrelated so as to be considered not of the "same class". The testimony was that CRC was an oil and gas exploration company. In that regard, to say that a loan whose proceeds are for lease acreage acquisition is sufficiently dissimilar from loan proceeds for oil well completion is to draw too fine a line. "Different loans intended to provide a debtor with `working capital' [are] all of the same class within the meaning of [the same class] test." Security Nat. Bank v. Dentsply Professional, supra, at 1346. Clearly, the purpose of both the loans at issue was to fund the business operations of CRC; the loans shared a common purpose. To find otherwise would be to elevate form over substance.
As a final argument, CINB has raised the issue of PSB's duty to deal fairly with CINB. This obligation, argues CINB, derives from the duty to deal fairly and in good faith, implied in the parties' contractual relationship. CINB posits that permitting the oil and gas mortgages to act as security for the December loan would be to dilute CINB's collateral, which, a fortiori, was a breach of PSB's duty, and that the FDIC may not rely on such breach to the detriment of CINB.
The contractual relationship between CINB and PSB arose when CINB became a participant in the June, 1981 loan; the participation agreement governs the participation relationship. Hibernia Nat. Bank v. Federal Deposit Ins. Corp., 733 F.2d 1403 (10th Cir.1984). It is therefore proper for the Court to review the documents which implemented the relationship. The participation agreement contains the following language:
We [PSB] make no representation or warranty, and assume no responsibility *664 with respect to, the execution, validity, accuracy, sufficiency or enforceability of the Agreement, the Note, or any other document delivered under or pursuant to the Agreement or of any collateral for the Loans, the collectibility of the Note or the descriptions of or titles to the property constituting collateral. We assume no responsibility for the financial condition of the Borrower, [or] for the security value of any collateral. . . .
. . . .
[W]e will not without your prior written consent exercise any such rights which would . . . release any collateral for the Loans. . . .
The certificate of participation, executed simultaneously with the participation agreement, states: "It is expressly understood that we [PSB] do not make any representations or assume any responsibility with respect to the validity, genuineness or collectibility of said note, or the collateral securing the same. . . . We reserve the right to release collateral and to permit substitutions of new collateral."[4]
Participation agreements were recently at issue in Oklahoma in the case of Chase Manhattan Bank, N.A. v. F.D.I.C., 554 F.Supp. 251 (W.D.Okla.1983). Chase Manhattan Bank had been a participant in loans generated by, once again, PSB. The certificate of participation provided that
[t]he participant [Chase] shall have no interest in any property taken as security for any other loan or loans made to the borrower by the Bank [PSB], or in any property now or hereafter in the possession or control of the Bank which may be or become security for the loan by reason of the general description contained in any general loan and collateral agreements. . . .
Finding that PSB did not assign to Chase the participated loans or the collateral securing such loans, the Court stated that "[t]he participating bank which is not an assignee has merely contractual rights and no property rights in the participated loans or the collateral securing them." 554 F.Supp. at 256.
While the certificate of participation before us does not contain the language of the certificate of participation before the Court in Chase Manhattan Bank, N.A. v. F.D.I.C., supra, a certificate of participation identical to that before us was recently before the Tenth Circuit in Hibernia Nat. Bank v. Federal Deposit Ins. Corp., supra. The participating bank in Hibernia had attempted to argue that the participation in certain loans transferred "ownership" to the participant. Disagreeing, the Tenth Circuit noted: "The lead [PSB] is the only secured party. The `participants' can look solely to the lead for satisfaction of their claims because they are not themselves creditors of the borrowers and cannot assert creditor claims against the borrowers." 733 F.2d at 1407.
In view of these decisions, mindful of the principle that the participation agreements govern the participation relationship, we cannot agree with CINB that PSB's treatment of the collateral of the June, 1981 loan did violence to the participation agreements. Should CINB feel that some manner of contractual duty owed it has been breached, it is certainly free to pursue such claim in the proper forum. We merely hold that the treatment of the collateral pursuant to the participation agreement and certificate of participation does not alter the nature of FDIC's secured status under the December loan.
In conclusion we reiterate an oft-utilized maxim. Although strict adherence to legal precepts may at times lead to harsh results, efforts by courts to fashion equitable solutions for mitigation of hardships experienced by creditors in the literal application of such precepts may produce the deleterious effect of reducing the degree of *665 reliance the debtor-creditor arena should be, and must be, entitled to expect.
Accordingly, for all the hereinabove mentioned reasons, the application of the FDIC for classification of claim as secured shall be and hereby is, granted. Pursuant to Bankr.R. 7052 this memorandum constitutes our findings of fact and conclusions of law.
Judgment will be entered separately.
NOTES
[1] The Bankruptcy Amendments and Federal Judgeship Act of 1984, P.L. 98-353, was enacted on July 10, 1984. Jurisdictional amendments went into effect immediately. Therefore, the core and related distinctions are now applicable. None of the parties have questioned that this matter is a core proceeding.
[2] Much of the testimony at the hearing necessarily revolved around the CINB note and the FDIC note. The execution of the FDIC note vis-a-vis the CINB note was not an "alteration" in the classic sense of the term. Rather it was the filling in of blanks on a signed document. This is an issue which we have addressed previously. See In re Schick Oil & Gas, Inc., 35 B.R. 282 (Bankr.W.D.Okla.1983). Such a practice is valid as long as certain bounds of authority are not breached. In light of our finding that we must look at the surrounding circumstances, viz: the loans of June and December and the relationship of the parties, we cannot say that PSB breached its authority by filling in the executed December note.
[3] Indeed, the characterization of the December loan in these terms does not, we believe, vitiate the validity of the future advance clause contained in the June mortgages.
[4] Query whether "we will not . . . exercise such rights which would . . . release any collateral for the loans" and "we reserve the right to release collateral and to permit substitutions of new collateral" create an ambiguity.
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124 F.Supp. 809 (1954)
MISSISSIPPI PUBLIC SERVICE COMMISSION, Plaintiff,
v.
The UNITED STATES of America and the Interstate Commerce Commission, Defendants.
Civ. A. No. 2120.
United States District Court, S. D. Mississippi, Jackson Division.
September 21, 1954.
*810 James T. Coleman, Atty. Gen., James T. Kendall, Sp. Asst. Atty. Gen., Dugas *811 Shands, Jackson, Miss., for Mississippi Public Service Commission.
J. C. Floyd, Meridian, Miss., for Flintkote Co.
Henry Hilbun, Jr., of Deavours & Hilbun, Laurel, Miss., for Masonite Corp.
Roland W. Heidelberg, Jr., Hattiesburg, Miss., for all remaining intervening plaintiffs.
Robert E. Hauberg, U. S. Atty., Jackson, Miss., Stanley N. Barnes, Asst. Atty. Gen., Willard P. Memler, Sp. Asst. Atty. Gen., for United States.
Allen Crenshaw, Associate Chief Counsel of Interstate Commerce Commission, Washington, D. C., for Interstate Commerce Commission.
Harold E. Spencer, Chicago, Ill., Y. D. Lott, Mobile, Ala., Byrd, Wise & Smith, Jackson, Miss., Ben F. Cameron, Meridian, Miss., for the Railroads.
Before HOLMES, Circuit Judge, and MIZE and THOMAS, District Judges.
MIZE, District Judge.
This is an action seeking to annul, set aside, and permanently enjoin enforcement of an order of the Interstate Commerce Commission entered February 1, 1954, in accordance with the report findings and conclusions entered November 2, 1953, in the proceeding No. 31164, Mississippi Intrastate Freight Rates and Charges, under which the respondent rail carriers operating in Mississippi were required to establish intrastate freight rates and charges in Mississippi no lower than the rates and charges prescribed and provided for in said report. The action was filed by the Mississippi Public Service Commission against the United States and the Commission, and served upon the Commission March 15, 1954. Answers have been filed by the United States, by the Commission, and railroad respondents operating in Mississippi. Certain shippers and associations, as named in the several motions, have intervened in support of the Mississippi Commission. The case was heard on its merits and upon an application for a temporary injunction by consent at the same time. The temporary injunction was granted pending a final judgment.
The Commission proceedings were instituted October 17, 1952, upon the filing of a petition by seventeen railroads, with a supplemental petition filed November 21, 1952, seeking an order, after investigation, to authorize increase of intrastate freight rates in Mississippi, to the same extent and in the same manner as authorized by the Commission in respect to interstate rates and charges, in Ex parte No. 175, Increased Freight Rates, 1951, 284 I.C.C. 589, hereinafter referred to as X-175. The railroads had, prior to filing petitions with the Commission, filed petitions with the Mississippi Commission, seeking approval of the increased rates, which were denied by order of that Commission, entered November 8, 1952. By order of December 5, 1952, Division 1 of the Commission ordered such investigation and a hearing before an examiner for February 2, 1953, at Jackson, Mississippi.
After the hearing a report by Examiner Vandiver was filed and served on May 27, 1953. The proposed report found that the intrastate rates imposed by the Mississippi Commission on cottonseed and products thereof, soy beans and products thereof, fertilizer and fertilizer materials, lumber and articles listed as taking the lumber rates, pulpwood, sand and gravel, cement, brick and related articles in the brick list, and refined petroleum in tank cars, were abnormally low, and traffic thereunder fails to produce its fair share of revenue to enable railroad respondents to provide adequate and efficient service, and such rates cause undue, unreasonable, and unjust discrimination against interstate commerce. The Mississippi Commission and three protestants filed exceptions to said report, and respondent railroads filed reply thereto.
The Commission entered its report on November 2, 1953, 291 I.C.C. 39. Ultimate findings of the Commission are set forth in the report and are substantially the same as those proposed by the Examiner. The report provided that an order *812 would be issued making the findings effective, unless notified within 30 days after service, by the Mississippi Commission, that it would promptly permit the approved increases. Upon petitions of the Mississippi Commission, the Commission, by orders dated November 25 and December 23, 1953, extended the date on which such notification should be given to February 1, 1954. The Mississippi Commission and three protestants filed petitions for reconsideration of the report of November 2, 1953, which were denied by the Commission order of February 1, 1954, under which respondent railroads were ordered to establish the intrastate rates prescribed for the commodities named in the report, on March 19, 1954, effective upon five days' notice. Petition of the Mississippi Commission was filed March 9, 1954, to amend the order of February 1, 1954, so as to remove therefrom the requirement to increase intrastate rates on refined petroleum in tank cars. By Commission order of March 10, 1954, the order of February 1, 1954, was so amended.
The Commission authorized, in X-175, a general increase of fifteen percent on basic interstate freight rates and charges, subject to certain exceptions and modified increases, which was the fourth general increase since World War II. The railroads operating in Mississippi filed petition with the State Commission, seeking the same increases on intrastate rates and charges as authorized on interstate rates under X-175.
The Mississippi Commission had a full hearing and authorized an increase in intrastate rates and charges of the full fifteen per cent on all less than carload freight and upon all carload freight, except as to carload line haul rates of brick and related articles upon which the Mississippi Commission granted no increase, cement, upon which the Mississippi Commission granted no increase, fertilizer and fertilizer materials, upon which the Mississippi Commission authorized a six per cent increase, lumber, upon which the Mississippi Commission authorized a six per cent increase, pulpwood, upon which the Mississippi Commission authorized a six per cent increase, sand and gravel, upon which the Mississippi Commission granted no increase, cottonseed and products thereof, upon which the Mississippi Commission authorized a six per cent increase, soya beans and the products thereof, upon which the Mississippi Commission authorized a six per cent increase, cattle feed made 65 per cent or more of cotton seed or soya bean products, upon which the Mississippi Commission authorized a six per cent increase, and refined petroleum in tank cars, upon which the Mississippi Commission authorized an increase of six per cent. Upon all of the commodities excepted the increase authorized by the Interstate Commerce Commission was fifteen per cent with the single exception of sand and gravel upon which the interstate increase was twelve per cent.
Cattlefeed made 65 per cent or more of cottonseed or soya bean products is not involved in this case as same was excepted from the report and order of the Interstate Commerce Commission. Refined petroleum in tank cars is likewise not involved in this proceedings for the reason that, by order dated February 23, 1954, the Mississippi Commission ordered that the intrastate rates for that commodity be increased the full fifteen per cent authorized in Ex parte No. 175. All of the remaining excepted commodities are in issue, there being involved the differential in the increases authorized by the Mississippi Commission and the Interstate Commerce Commission as outlined above.
The Commission report, finding 3, prescribed the interstate increase on all the commodities excepted by the Mississippi Commission. The rates involved herein relate only to said excepted commodities as an issue, of which refined petroleum in tank cars was removed by the Commission order of March 10, 1954, entered after the Mississippi Commission had approved the interstate increase for that commodity.
*813 The ultimate issue relates to the validity of the orders of the Commission requiring the rail carriers to increase their Mississippi intrastate rates and charges to the same level prescribed in the report of November 2, 1953. Section 13(4) prohibits two types of preference and discrimination, in respect to intrastate and interstate rail rates, preference and prejudice as to persons and localities, and discrimination against interstate commerce. The Commission report of November 2, 1953, found that no evidence was offered as to undue prejudice to interstate shippers. The remaining issue relates only to discrimination against interstate commerce. Paragraphs XII and XIII of the complaint allege illegality of the final report and order of the Commission, on grounds there stated of violation of constitutional rights; action beyond the scope of statutory authority; unsupported by substantial evidence or contrary to evidence; and arbitrary action.
The paramount question for determination is whether or not there was substantial evidence to support the finding of the Commission. The law in recent years has been fully announced and declared by the Supreme Court.
The Interstate Commerce Commission has no general authority to regulate intrastate rates. The mere existence of a disparity between interstate and intrastate rates does not authorize the Commission to enter a field properly consigned and belonging to the state regulatory body and interfere with rates established by state authority. Section 13(4) of the Interstate Commerce Act, 49 U.S.C.A. § 13(4), does not automatically require complete uniformity in intrastate and interstate rates but the state commission may fix a lower intrastate rate than the interstate rate, unless an undue advantage to intrastate traffic and an unfair discrimination against interstate traffic results therefrom. This rule was properly and clearly declared by the Supreme Court of the United States in the case of State of North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760.
The true rule is that, whenever the Commission attempts to exert the power to interfere with intrastate rates which are otherwise in the dominion of state regulation, the justification for the exercise of such power by the Commission must clearly appear of record. Otherwise, the Commission's action is a clear and unlawful encroachment upon the reserved power and authority of the state.
In order to authorize the Commission to exercise the power to nullify intrastate rates under Section 13(4) of the Act, it must be shown, among other things, (a) that the intrastate rates involved are abnormally low and are not contributing their fair share of the revenue of the carriers involved; (b) that the disparity between the rates is substantial and operates as a real discrimination against and obstruction to interstate commerce; (c) that injury to interstate shippers has resulted and will continue to result because of the disparity in rates; (d) that the proposed rates are just and reasonable; and (e) that a substantial increase in the carriers' revenue will result from the proposed increase in the intrastate rates. State of North Carolina v. United States, supra. The Court further held in that case that the power of the Commission to require states to raise their intrastate rates depends upon whether intrastate traffic is contributing its fair share of the earnings required to meet maintenance and operation costs and to yield a fair return on the value of the property directed to the transportation service both interstate and intrastate. Moreover, it reaffirmed the doctrine that the Commission could not require intrastate rates to be raised above a reasonable level.
The Interstate Commerce Commission is granted wide powers to prescribe rates on interstate freight as well as other transportation matters. That function belongs primarily and exclusively within the limits of the Act to the *814 Commission; however, its authority over intrastate rates is limited as above set out and Section 13(4) of the Act was never intended to deprive the state commission of their primary authority to regulate intrastate rates. There is a point where the power of the state commission ceases and the power of the Interstate Commerce Commission begins, but as stated by Mr. Justice Black in the North Carolina case, it is not always easy to designate that point.
Other principles of law have been clearly declared by the Supreme Court of the United States. Intrastate traffic must bear a fair proportionate share of the costs of maintaining an adequate railway system. Railroad Commission of Wisconsin v. Chicago B. & Q. Railway, 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371. It is within the power of the Interstate Commerce Commission to determine if the intrastate rates do that; however, before it can alter intrastate rates the justification therefor must clearly appear and be supported by substantial evidence. It is not sufficient that there be simply a difference between interstate rates fixed by the Commission and the intrastate rates as fixed by the state commission. The fixing of intrastate rates is primarily the duty of the state commission and the record in this case demonstrates that the Mississippi Commission gave great study and investigation and heard much testimony before the Commission itself and not through an examiner. If the evidence is substantial to support the finding of the Interstate Commission, then its power and its conclusions override that of the state commission, but a mere disparity of itself in the rates fixed by each commission is not sufficient. State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291. Whenever the findings of the Commission are supported by substantial evidence, then the findings of such commission are conclusive upon the courts, but if such findings are not supported by substantial evidence, then the matter is one for the court to determine and such order cannot be upheld. In determining in the first instance whether intrastate rates should be raised or lowered the Interstate Commerce Commission is allowed wide latitude in directing that intrastate rates be increased and may take into consideration material and reports which were before the Commission in previewing a nationwide increase in interstate freight rates. The Commission's jurisdiction over intrastate rates is not limited to cases where those rates are confiscatory. King v. United States, 344 U.S. 254, 73 S.Ct. 259, 97 L.Ed. 301.
The Court in reviewing an order of the Interstate Commerce Commission has the duty to study the entire record and it is the function of the Court to determine from the whole record whether or not there was substantial evidence before the Commission upon which its order could be based. If there were no substantial evidence then it is the duty of the Court to set aside such order and enjoin its enforcement. Congress in enacting in 1946 the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., made it mandatory that the reviewing court should set aside an order that was unsupported by substantial evidence and that it should review the whole record in making the determination. The Supreme Court of the United States in Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456, held that in determining what is substantial evidence that the Court must take into consideration whatever in the record fairly detracts from its weight. Under the decision in that case it is the duty of the reviewing court when it cannot conscientiously find that the evidence supporting the order of the Commission is substantial, when viewed in the light that the record in its entirety furnishes, including the body of the evidence opposed to the Board's view, to set aside the order of the Commission.
Substantial evidence is a legal term and presents to the court for adjudication a question of law. It is a term *815 that frequently appears in the construction of many laws. There are many instances in which judgments are required to be supported by substantial evidence. The verdicts of juries in some states are required to be supported by substantial evidence and it then becomes a question for determination by the court as to whether or not a verdict is supported by substantial evidence and if it is not, then the court reverses and directs that judgment be entered when not supported by substantial evidence. The decisions on this matter are numerous. See 40 Words and Phrases, Substantial Evidence, and Annual Pocket Part. Substantial evidence is a term that cannot be defined definitely, but whether the evidence in a particular case amounts to substantiality must be determined from the facts of each case as it arises.
The order in this case when viewed in the light of the entire record and all of the circumstances leading up to its passage and giving weight to all things that detract from the sufficiency of the evidence is not supported by substantial evidence and must be set aside and its enforcement enjoined. It is a delicate duty placed upon the reviewing court to determine the line of demarkation and to adjudicate the point where the authority of the state commission ends. The court does not have the power to settle disputes in the testimony, but it must consider the entire record and determine as a matter of law if there was substantial evidence to support the order. The record shows that in making the investigation for the nation as a whole in Ex parte No. 175 that the Commission at that time was making a determination that the intrastate rates should be increased as well as the interstate rates. That will not do. There must be a finding based upon substantial evidence after a full investigation that the intrastate rates are abnormally low and that traffic thereunder fails to produce its fair share of the earnings to yield revenue sufficient to accomplish the purpose of interstate commerce. The record does not bear out any substantial evidence to this effect. There was no separation made by the railroads of their revenues, expenses and properties as between interstate and intrastate operations. So far as the record shows, it could be fairly assumed that the rates fixed by the Mississippi Commission were not abnormally low but were bearing a fair percentage of revenue for the operation of the carriers. The record of the evidence in the case reflects a favorable financial condition of the railroads involved herein when contrasted with that of the railroads of the country as a group. The statistics introduced in evidence and reflected by the various reports show that the national average of returns for the railroads was 4.02 per cent; whereas, the condition of the railroads involved in this controversy was in a better financial situation and their earnings greater than the 4.02 per cent. The Interstate Commerce Commission in Ex parte No. 175, when granting freight rate increases took into consideration the losses sustained by the railroads in passenger operations. This was correct and was upheld in King v. United States, 344 U.S. 254, 73 S.Ct. 259, 97 L.Ed. 301, but in determining the intrastate rate in Mississippi the Commission refused to take into consideration the lower passenger deficits which prevailed in Mississippi. There is no testimony in the record having probative force showing that the rates in Mississippi were abnormally low other than the disparity that exists between the interstate rates and the intrastate rates which within itself is not sufficient. Different conditions, circumstances and situations in different states require and justify different results in fixing intrastate rates. The findings of a state commission which is familiar with such conditions in the state, with the location of competing highways and other forms of carriers, when its opinion differs from the Interstate Commerce Commission's findings detracts heavily against the findings of the Interstate Commerce Commission, *816 whose testimony is taken before an examiner. The record shows in this case that the need of the carriers involved here for additional revenue is not as great as the needs of the railroads of the country as a whole. The statistics introduced in evidence and now in the record demonstrate this.
The testimony of the various witnesses who are shippers of many of the products involved herein demonstrates that if the rates are permitted to stand as fixed by the Interstate Commerce Commission, the income of the railroads will be reduced rather than increased. Many of these are shippers themselves and testified positively and unequivocally that it would be economy for them to use their own individual trucks or private carriers by truck, who are unregulated so far as rates are concerned in Mississippi. When the intrastate freight rate level on a given commodity is at such level that any increase in the rate would have the effect of diverting traffic from the rail carriers to competing forms of transportation, then it would follow that the revenue derived would be diminished rather than increased. In fixing reasonable rates competition is one of the elements to be considered and is frequently controlling. See Interstate Commerce Commission v. Chicago Great Western Railway Co., C. C., 141 F. 1003. In determining the legal question as to whether the evidence amounts to substantiality and in adjudicating whether there was substantial evidence or not, the court likewise must weigh such factors. The record shows in this case that the Mississippi Commission was thoroughly familiar with the competition prevailing and with the location of the sites for gravel, the location of the highways and as a matter of fact, in better position to determine the effect of competition upon the carriers than is the Interstate Commerce Commission, but, of course, its findings must yield to those of the Interstate Commerce Commission, if the record as a whole shows that there was substantial evidence.
The Interstate Commerce Commission found that the increase granted in the rates by it would produce more than $550,000 annually on all of the commodities involved. This finding was based upon estimates made by experts of the railroad companies that such revenue would be produced if the rate increase be given. The testimony upon this proposition is exceedingly weak. It is based upon the presumption that the same amount of freight traffic would continue under the increased rate as had theretofore been carried at the lower rate. This assumption and opinion is contrary to the sworn testimony of those who were in position not only to know but also to control large quantities of the products upon which the rate was increased. The evidence to support this finding when weighed in the light of the prevailing rule of law is not sufficient to amount to substantial evidence.
The testimony of the various witnesses and experts who testified for the carriers along with their many exhibits, opinions and tests has not been overlooked but their testimony has been fully weighed in the light of the entire record and proceedings in this cause and when viewed in this light the testimony fails to show substantiality sufficient to uphold the order here under attack and the findings that were made by the Interstate Commerce Commission. It would unduly prolong this opinion to undertake to point out in detail the testimony of the various witnesses and the things that detract from the substantiality of the evidence, but it is demonstrated more closely with reference to sand and gravel, the pulpwood and the fertilizer and cement that is involved. The record is clear in this case that the revenue needs of the railroads of the Eastern District and in the South or Western District and the financial condition of the petitioning railroads involved in this case are in better condition than the national average.
On the trial before this Court there was introduced in evidence Plaintiff's Exhibit 4, which was a petition by the railroads *817 made to the Interstate Commerce Commission seeking a modification of the Commission's order so as to authorize lower rates upon sand and gravel and Plaintiff's Exhibit 5, being an order thereon granting the prayer of the petition. There was no objection to the introduction of these documents but even if they should have been irrelevant as having occurred since the filing of the suit, it still would be true that there was not sufficient substantial evidence to support the order but if these documents be considered, they simply demonstrate that the higher rate given the railroads would cause the traffic to divert to competitors. The commodities involved in this controversy require shorter hauls than do the interstate shipments and are therefore more susceptible to competition. On all of the commodities involved in the controversy the competition by carriers is keen and would come not only from regulated trucks for hire but from unregulated trucks and from trucks owned and operated by the shippers themselves. This is clearly shown by the record by positive testimony and overwhelmingly overthrows and overrides the opinions of the experts.
The Interstate Commerce Commission committed an error of law in disregarding the evidence that passenger deficits in Mississippi were substantially lower than in the South or the nation as a whole. The Mississippi Commission offered evidence showing that passenger deficits in Mississippi were substantially less than passenger deficits of the same railroads for their system-wide operation and according to the statistics introduced there was a vast difference. Passenger deficit is an element to be taken into consideration in rate making by the Interstate Commerce Commission, and as a matter of law, it is the duty of that Commission to consider it in determining whether rates should be increased or decreased, and if the passenger deficit in Mississippi was less than that of the nation as a whole, it was the duty of the Commission to give proper consideration to this testimony. King v. United States, supra.
At the time the original complaint herein was filed and at the time of the hearing and when the case was submitted to the Court for judgment, cement in carload lots was one of the commodities involved and an intervention by the Marquette Cement Manufacturing Company was allowed but since that date the Marquette Cement Manufacturing Company, one of the intervening plaintiffs, moved to be permitted to withdraw its intervention for the reasons stated in the motion and likewise the plaintiff moved to amend its complaint so as to eliminate cement from the commodities at issue and without objection an order was entered on the 13th day of September, 1954, sustaining each of said motions. The complaint was amended so as to eliminate cement and the petition of the Marquette Cement Company was dismissed for the reasons stated in said motions, there being no objections from any one to these motions.
For the reasons herein stated the order of the Interstate Commerce Commission will be set aside and its enforcement enjoined.
Order may be drawn in accord herewith.
THOMAS, District Judge (dissenting).
As stated by Judge Mize in the majority opinion, the paramount question for determination is whether or not there was substantial evidence to support the finding of the Commission. The law is well settled "that an order of the Commission is entitled to finality, and may not be set aside, modified or disturbed on judicial review, if such order of the Commission lies within the scope of the Interstate Commerce Statute, and is based upon adequate findings that are supported by substantial evidence."[1] There *818 is no question but that the order of the Commission lies within the scope of the statute. In discussing the limitation upon the right of courts to review orders of the Commission, in the case of Interstate Commerce Commission v. Union Pacific Railroad Company, 222 U.S. 541, 32 S.Ct. 108, 111, 56 L.Ed. 308, the court said:
"In determining these mixed questions of law and fact, the court confines itself to the ultimate question as to whether the Commission acted within its power. It will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling. `The findings of the Commission are made by law prima facie true, and this court has ascribed to them the strength due to the judgments of a tribunal appointed by law and informed by experience.' Ill. Cent. v. Interstate Commerce Comm., 206 U.S. 441, 27 S.Ct. 700, 51 L.Ed. 1128. Its conclusion, of course, is subject to review, but, when supported by evidence, is accepted as final; not that its decision, involving, as it does, so many and such vast public interests, can be supported by a mere scintilla of proof, but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order."
In my opinion, the findings made by the Commission in support of its conclusion are entirely adequate, and fulfill the needs emphasized in the case of State of North Carolina v. United States, 325 U. S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760.
The record must be considered as a whole. I have considered the record as a whole and am of the opinion that on the authority of King v. United States, 344 U.S. 254, 73 S.Ct. 259, 97 L.Ed. 301, the order complained of has a rational basis in adequate findings, which are supported by substantial evidence.
I respectfully dissent from the majority opinion.
NOTES
[1] Louisiana Public Service Comm. v. United States of America and the Interstate Commerce Comm., D.C., E.D. of La., 125 F.Supp. 180.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
MICHAEL GIBBS, ) No. 08-02-00037-CV
)
Appellant, ) Appeal from
)
v. ) 14th District Court
)
SHUTTLEKING, INC., LOUISIANA ) of Dallas County, Texas
RIVERBOAT GAMING PARTNERSHIP )
D/B/A ISLE OF CAPRI CASINO-BOSSIER ) (TC# 97-07084-A)
CITY, MARTY NEGOSLAWSKI, )
MITCHELL GOLDMINZ, and )
MARVIN ALGER, )
)
Appellees. )
O P I N I O N
This case arises from a bus hijacking in which the driver, Michael Gibbs, was seriously
injured. He appeals the summary judgment granted in favor of his employers -- ShuttleKing Inc.,
Louisiana Riverboat Gaming Partnership, Marty Negoslawski, Mitchell Goldminz, and Marvin
Alger.
Appellees will be referred to collectively as ShuttleKing. At issue is the foreseeability of
the criminal conduct of the hijackers. We affirm.
FACTUAL SUMMARY
As a bus driver for ShuttleKing, Gibbs drove passengers from Dallas to the Isle of Capri
Casino in Bossier City, Louisiana. On November 7, 1996, three passengers pulled weapons and
hijacked the bus in Tyler, Texas. Gibbs was shot and seriously wounded during the robbery. He
sued ShuttleKing for negligence, alleging that it failed to provide a reasonably safe workplace. In
particular, he complained that ShuttleKing (1) failed to check passengers’ luggage; (2) allowed
passengers to enter unattended buses; (3) allowed hijackers to enter the bus with weapons; (4) failed
to provide an adequate means of communication so that Gibbs could advise ShuttleKing of danger;
(5) failed to provide him with an adequate means to secure funds from the sale of tickets; (6) failed
to instruct or properly instruct employees on security measures; and (7) failed to instruct or properly
instruct employees to not leave buses unattended. Gibbs contended that he suffered severe injury
to his head, face, left hand, and to his body generally. He sought medical expenses, lost wages and
loss of earning capacity, physical pain and suffering, mental anguish, disability, and disfigurement.
PROCEDURAL SUMMARY
Gibbs sought recovery on both negligence and promissory estoppel theories.
The trial court
inititally granted partial summary judgment dismissing the negligence claims. The promissory
estoppel issue was tried to a jury, and Gibbs was awarded $150,000 in damages. The Eastland Court
of Appeals determined that the judgment was interlocutory since it failed to address all claims and
parties. On remand, the trial court signed an amended final judgment which incorporated both the
partial summary judgment on the negligence issues and the judgment on the jury verdict. Gibbs has
appealed only the summary judgment as to negligence. He asks us to affirm the judgment as it
pertains to promissory estoppel.
We abated the appeal after Negoslawski filed for bankruptcy. The bankruptcy court
discharged Negoslawski from his obligations on December 11, 2002. Gibbs concedes that he cannot
resume his action against Negoslawski in a personal capacity. Consequently, he has waived
collection of any judgment from Negoslawski personally and has restricted his collection of any
damages to insurance covering Negoslawski’s liability, to the co-defendants, or to other responsible
third parties. We have reinstated the appeal and consider it now on the merits.
ISSUES ON APPEAL
In his first issue for review, Gibbs generally complains that the trial court erred by granting
summary judgment on the negligence issues. He contends that the evidence submitted in his
response raised a fact issue as to whether the risk of harm to drivers and passengers was foreseeable.
His remaining three issues deal with the applicability of Timberwalk Apartments, Partners, Inc. v.
Cain, 972 S.W.2d 749 (Tex. 1998). In Issue Two, Gibbs posits that a defendant can be held liable
for the criminal acts of a third party if it knows of an unreasonable and foreseeable risk to the
plaintiff. He then asks whether the bus hijacking was foreseeable by ShuttleKing. In Issue Three,
he queries whether Timberwalk applies when the nature of the business, as opposed to the premises
of the business, created the risk of criminal conduct. In Issue Four, he questions whether the
Timberwalk foreseeability factors apply to a moving vehicle.
STANDARD OF REVIEW
A no-evidence summary judgment is proper only when the non-movant fails to prove there
is a genuine issue of material fact on one or more of the elements identified in the motion.
Tex.R.Civ.P. 166a(i). A no-evidence summary judgment is essentially a pretrial directed verdict,
and we apply the same legal sufficiency standard that we apply in reviewing a directed verdict.
Marsaglia v. University of Texas, El Paso, 22 S.W.3d 1, 3 (Tex.App.--El Paso 1999, pet. denied).
The motion should be granted if the non-movant fails to bring forth more than a scintilla of probative
evidence to raise a genuine issue of material fact as to an essential element of the non-movant’s
claim on which the non-movant would have the burden of proof at trial. Marsaglia, 22 S.W.3d at
4. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded
persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a
scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere
surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Id.
THE MOTION AND RESPONSE
ShuttleKing filed both no-evidence and traditional motions for summary judgment. The no-evidence motion relied upon Timberwalk and argued that Gibbs failed to establish the duty element
of negligence. In his response, Gibbs claimed that Timberwalk was inapplicable because the case
at bar did not involve a dangerous premises condition. Instead, he argued his suit was predicated on
a negligent activity within the ambit of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992). Alleging
that the risk of harm was foreseeable and that ShuttleKing had actual subjective awareness of the
risks involved, he claimed ShuttleKing owed him a duty of ordinary care and a duty to provide a safe
workplace. He also claimed the existence of a special relationship. Finally, he contended that
ShuttleKing owed a high duty of care to its passengers since it was a common carrier, and Gibbs was
a necessary and unintended/intended beneficiary.
In his affidavit, Gibbs averred that he had complained to Safety Director Lonnie Self about
the risk of robbery due to the presence of large amounts of cash from ticket sales. Several other
drivers had also complained to management. The affidavit of driver Joyce Bridwell revealed that
she had complained to both Alger and Negoslawski. Yet another driver, Milton Kelly, had reported
to Self and Alger in 1995 that a bus carrying passengers to Las Vegas in a similar operation had been
hijacked. When Kelly voiced concerns about security, Self belittled them to the extent that Kelly
believed the company did not take the dangers seriously.
Charter Sales Manager Priscilla Mantle acknowledged that a regular topic at management
meetings was the risk associated with accepting cash for the sale of tickets on the casino charter
buses. This was a particular concern since the Department of Transportation required the buses to
stop for a roadside check between Dallas and Bossier City, often at night and in desolate areas. Bus
drivers had also complained about the cash sales and the dangers associated with them, and some
refused to drive the night run. Cash sales were temporarily halted but were later reinstated due to
a decline in ticket revenues. Alger expressed concerns about the danger of cash collections.
Management discussed having an employee travel to pick up the cash collected each night, but since
no employee had time to make the trip, the cash was left with the drivers.
TIMBERWALK
At the heart of this dispute is the Texas Supreme Court’s decision in Timberwalk. Inasmuch
as it weaves throughout the issues on appeal, we will begin our analysis with a review of the opinion.
There, a tenant who was raped in her apartment sued the landlord and management company for its
negligent failure to provide adequate security. 972 S.W.2d at 751. On appeal, the Supreme Court
was faced with two issues: (1) whether the plaintiff had alleged a negligent activity or a premises
defect and (2) whether the risk that a tenant would be sexually assaulted was reasonably foreseeable
to the defendants. Id.
The court recognized that the failure to provide adequate security against criminal conduct
is ordinarily couched in terms of premises liability. 972 S.W.2d at 753. That was particularly true
since the tenant did not assert that she was injured by or as a contemporaneous result of any activity
of the defendants. The only activity that had injured the tenant was the conduct of the rapist. Id.
The court then addressed whether the defendants had a duty to provide security measures and
whether the likelihood of violent criminal activity within the apartment complex could have been
reasonably foreseen. Id. at 756. The opinion articulated the factors to be considered in
determining the foreseeability of third party criminal acts: (1) proximity, (2) recency, (3) frequency,
(4) similarity, and (5) publicity. Id. at 759. In a concurrence, Justice Spector suggested that other
types of evidence may also establish foreseeability, such as the nature, condition, and location of the
defendant’s premises. Id. Spector quoted the language from Restatement (Second) of Torts section
344 comment f: “If the place or character of [a] business . . . is such that [the landowner] should
reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at
some particular time, [the landowner] may be under a duty to take precautions against it . . . .” Id.
DUTY TO PREVENT THIRD PARTY CRIMINAL ACTS
In Issue Two, Gibbs argues that Timberwalk does not negate the common law duty to control
a third party when the defendant has the opportunity, ability, and knowledge of the necessity to do
so. To the extent he relies upon Section 318 of the Restatement (Second) of Torts, the argument is
waived as it was not raised in his response to the motion for summary judgment. Tex.R.Civ.P.
166a(c)(“Issues not expressly presented to the trial court by written motion, answer or other response
shall not be considered on appeal as grounds for reversal.”). We will consider the argument to the
extent he contends he presented sufficient evidence that the criminal acts were foreseeable so as to
defeat summary judgment.
The elements of a negligence cause of action are the existence of a legal duty, a breach of that
duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454
(Tex. 2002). Generally, a person has no legal duty to protect another from the criminal acts of a third
person. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). An exception to the
general rule is that one who controls premises has a duty to use ordinary care to protect invitees from
criminal acts of third parties if it knows or has reason to know of an unreasonable and foreseeable
risk of harm to the invitee. Lefmark Mgmt Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). Gibbs, as
an employee, would be classified as an “invitee” on ShuttleKing’s premises. See Guerrero v.
Memorial Medical Center of East Texas, 938 S.W.2d 789, 791 (Tex.App.--Beaumont 1997, no pet.),
citing Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex. 1963). Ordinarily, this duty does not
include preventing criminal acts of third parties over whom the premises owner has no control. Id.;
see also Timberwalk, 972 S.W.2d at 756. However, in a landlord-tenant relationship, a landlord who
retains control over the security and safety of the premises has been found to owe a duty to a tenant,
a tenant’s employee, and a tenant’s guest to use ordinary care to protect the employee against an
unreasonable and foreseeable risk of harm from the criminal acts of third parties. See Exxon Corp.
v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993); Nixon v. Mr. Property Management Co., Inc., 690
S.W.2d 546, 549 (Tex. 1985); Haight v. Savoy Apartments, 814 S.W.2d 849, 853-54 (Tex.App.--Houston [1st Dist.] 1991, writ denied).
Thus, the foreseeability of an unreasonable risk of criminal conduct is a prerequisite to
imposing a duty of care on one who owns or controls premises to protect others on the property from
the risk. Timberwalk, 972 S.W.2d at 756. While only a general danger and not the precise sequence
of events must be foreseeable, when the general danger is the risk of injury from criminal activity,
there must be evidence of specific previous crimes on or near the premises. Id. Crime may be
visited upon virtually anyone at any time or place, but criminal conduct of a specific nature at a
particular location is never foreseeable merely because crime is increasingly random and violent and
may possibly occur almost anywhere, especially in a large city. Id., citing Lefmark, 946 S.W.2d at
59. If a landowner had a duty to protect persons on its property from criminal conduct whenever
crime might occur, the duty would be universal. Id. A duty exists only when the risk of criminal
conduct is so great that it is both unreasonable and foreseeable. Id. Whether the risk was foreseeable
must not be determined in hindsight but rather in light of what the premises owner knew or should
have known before the criminal act occurred. Id. at 757. In determining whether the occurrence of
certain criminal conduct on a landowner’s property should have been foreseen, courts should
consider whether any criminal conduct previously occurred on or near the property, how recently it
occurred, how often it occurred, how similar the conduct was to the conduct on the property, and
what publicity was given the occurrences to indicate that the landowner knew or should have known
about them. Id. The factors must be considered together in determining whether criminal conduct
was foreseeable. Id. at 759.
Proximity
For a landowner to foresee criminal conduct on property, there must be evidence that other
crimes have occurred on the property or in its immediate vicinity. Id. Criminal activity occurring
at a distance from the landowner’s property bears less relevance because crime rates may be expected
to vary significantly within a large geographic area. Id. This is not to say that evidence of remote
criminal activity can never indicate that crime is approaching a landowner’s property. Id. But such
evidence must be especially strong, and must show that the risk of criminal conduct on the
landowner’s property is not merely increasing but has reached a level as to make crime likely. Id.
Most courts have looked to narrow geographic areas in analyzing the foreseeability of
criminal conduct. Id. While a few courts have examined criminal activity occurring in broader
geographic areas, statistics regarding large or undefined geographic areas do not by themselves make
crime foreseeable at a specific location. Id. Even if a city’s overall crime rate has risen, specific
areas within the city may remain crime free. Id. Likewise, merely because several crimes have
occurred at a particular ATM located in a high-crime area does not render it more likely that future
crimes will occur at every ATM the bank owns. Id. For a risk to be foreseeable, there must also be
evidence of criminal activity within the specific area at issue, either on the landowner’s property or
closely nearby. Id.
Recency/Frequency
Foreseeability also depends upon how recently and how often criminal conduct has occurred
in the past. Id. at 757-58. The occurrence of a significant number of crimes within a short time
period of time strengthens the claim that the particular crime at issue was foreseeable. Id. at 758.
On the other hand, the complete absence of previous crimes, or the occurrence of a few crimes over
an extended time period, negates the foreseeability element. Id.
Similarity
Although the previous crimes must be sufficiently similar to the crime in question as to place
the landowner on notice of the specific danger, the prior crimes need not be identical. Id. For
example, a string of assaults and robberies in an apartment complex make the risk of other violent
crimes, like murder and rape, foreseeable, but a spate of domestic violence in the complex does not
portend third party sexual assaults or robberies. Id.
Assessing this factor is difficult because “[c]riminal activity is not easily
compartmentalized.” Id., citing Jardel Co. v. Hughes, 523 A.2d 518, 525 (Del. 1987). While
property crimes may expose a dangerous condition that could facilitate personal crimes, as when
apartments are targeted repeatedly by thieves, vandalism to automobiles in an apartment complex’s
parking lot can be a serious concern, but it does not suggest the likelihood of sexual assault. Id.
Publicity
The publicity surrounding the previous crimes helps determine whether a landowner knew
or should have known of a foreseeable danger. Id. A landlord often has actual knowledge of
previous crimes occurring on the premises through tenants’ reports, and actual notice of past
incidents strengthens the claim that future crime was foreseeable. Id. However, unreported criminal
activity on the premises is no evidence of foreseeability. Id. at 758-59. Previous similar incidents
cannot make future crime foreseeable if nobody knows or should have known that those incidents
occurred. Id. at 759. Property owners bear no duty to regularly inspect criminal records to determine
the risk of crime in the area; on the other hand, when the occurrence of criminal activity is widely
publicized, a landlord can be expected to have knowledge of such crimes. Id.
Application
Gibbs argued that ShuttleKing as owner of the bus had the ability and responsibility to
control the third parties who were responsible for his injury. He relies on the following instances
of crime: one of ShuttleKing’s drivers learned in 1995 that a bus carrying passengers to Las Vegas
was hijacked and he advised management about the incident; the safety director was familiar with
one incident in which a bus driver shot an armed hijacker in New Jersey in 1991; management
discussed the risk associated with accepting cash for ticket sales; and management recognized the
concern arising from Department of Transportation requirements for roadside checks which often
occurred at night in desolate areas.
ShuttleKing offered evidence that it operated buses in twenty-nine states and the District
of Columbia. It had operated the Dallas-Bossier City run more than 1,400 times in the previous
twenty-two months without a comparable incident. It presented news articles from The New York
Times reporting three similar incidents. Of these, two were in the New York City area and one was
in California. Whether the New Jersey hijacking constituted one of the New York incidents is not
clear from the record. Nor is it clear whether the Las Vegas hijacking coincided with the California
incident. It is clear that the owners of ShuttleKing were not subscribers of the newspaper. Gibbs
offered no evidence that any crimes had occurred on ShuttleKing’s bus lines or on other bus lines
traveling on casino runs between Dallas and Louisiana. Nor did he provide evidence to show
recency or frequency of crimes occurring on similar bus lines. The occurrence of few crimes over
an extended period of time or the absence of previous crimes negates foreseeability. Timberwalk,
972 S.W.2d at 759. Finally, Gibbs failed to provide evidence to show that the actual incidents were
similar to the crime perpetrated against him or that they were sufficiently publicized. Id. at 759.
DUTY TO PROVIDE SAFE WORKPLACE
Also contained within Issue Two is Gibbs’ argument that ShuttleKing had a duty to provide
a safe workplace. An employer has a duty to use ordinary care in providing its employees with a safe
place to work; however, an employer does not become an insurer of its employees’ safety at work.
Kroger Co. v. Keng, 976 S.W.2d 882, 885 (Tex.App.--Tyler 1998, review granted), aff’d, 23 S.W.3d
347 (Tex. 2000), citing Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995); Leitch v. Hornsby, 935
S.W.2d 114, 117 (Tex. 1996). An employer must provide rules and regulations for the safety of its
employees, furnish safe machinery and instrumentalities, provide a safe place to work, and select
careful and competent fellow servants. Kroger Co., 976 S.W.2d at 885, citing Burk Royalty Co. v.
Walls, 616 S.W.2d 911, 923-24 (Tex. 1981). It must warn employees about the hazards of their
employment and supervise their activities. Farley v. M.M. Cattle Co., 529 S.W.2d 751, 754 (Tex.
1975), overruled on other grounds, Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978).
The test whether the employer has met its obligation is the exercise of ordinary care based on general
negligence principles. Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex.App.--Texarkana 1996, writ denied), citing Tidwell, 867 S.W.2d at 21. Because ordinary principles of
negligence apply, the foreseeability necessary to impute responsibility for third party criminal
conduct must be evaluated in light of Timberwalk.
ShuttleKing owed Gibbs a duty only if the third party criminal act were foreseeable. Because
the evidence failed to establish foreseeability under the Timberwalk factors, we overrule Issue Two.
NATURE OF THE BUSINESS
In Issue Three, Gibbs complains that the Timberwalk factors should not have been rigidly
applied in determining the foreseeability of third party criminal acts. Because the bus was not a
fixed location, the analysis should focus on the nature of the business, rather than the location of the
business. In other words, Gibbs contends that the issue is whether ShuttleKing knew or should have
known that the nature of their business was prone to attract criminal activity.
In support of this argument, Gibbs refers us to Section 344 of the Restatement (Second) of
Torts, Justice Spector’s concurrence in Timberwalk, and two pre-Timberwalk opinions. See
Kendrick v. Allright Parking, 846 S.W.2d 453, 454-55 (Tex.App.--San Antonio 1992, writ denied);
Garner v. McGinty, 771 S.W.2d 242, 244 (Tex.App.--Austin 1989, no writ). His reliance on the
Restatement has been waived inasmuch as he failed to address the issue in the trial court. See
Tex.R.Civ.P. 166a(c). Moreover, we are disinclined to expand the duty articulated in Timberwalk.
The opinion defined the parameters of foreseeability for third party criminal acts, and the analysis
did not incorporate a “nature of the business” factor. Issue Three is overruled.
PREMISES LIABILITY VERSUS NEGLIGENT ACTIVITY
In Issue Four, Gibbs first argues that since a bus is not a fixed piece of property, it does not
qualify under the definition of “premises.” Secondarily, he asserts that the case involves a negligent
activity rather than a premises defect.
Bus as Premises
The common definition of “premises” is “a building or part of a building with its grounds or
other appurtenances.” J.B. Advertising, Inc. v. Sign Bd. of Appeals of the City of Carrollton, 883
S.W.2d 443, 447 (Tex.App.--Eastland 1994, writ denied), citing Billstrom v. Memorial Medical
Center, 598 S.W.2d 642 (Tex.Civ.App.--Corpus Christi 1980, no writ). In Billstrom, the court
defined “premises” as “an estate, including land and buildings thereon; . . . The area of land
surrounding a house, and actually or by legal construction forming one enclosure with it. A distinct
and definite locality, and may mean a room, shop, or other definite area, or a distinct portion of real
estate.” 598 S.W.2d at 646, citing Black’s Law Dictionary 1063 (5th ed. 1979). Gibbs argues
that because Timberwalk is replete with references to “landowners” and “real property,” a bus does
not fit within the parameters of the decision. From this, he concludes that the Timberwalk
foreseeability factors do not apply.
While a bus may not fit neatly within the definition of a “premises,” a bus utilized by a
transportation company is sufficiently similar to a “premises” to fall under the purview of the
Timberwalk factors. Although it does not constitute real property, it does constitute an asset used
by ShuttleKing in their business. The bus was Gibbs’ workplace--a definite area and locality.
Whether a different standard would apply to a bus in use as a common carrier is an issue not
presently before us.
Negligent Activity
Recovery on a negligent activity theory requires that the person be injured by or as a
contemporaneous result of the activity itself rather than by a condition created by the activity.
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); see also Timberwalk, 972 S.W.2d at 753.
Negligence in the context of a negligent activity means doing or failing to do what a person of
ordinary prudence in the same or similar circumstances would do. Timberwalk, 972 S.W.2d at 753.
Negligence in the context of a premises defect means “failure to use ordinary care to reduce or
eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier
[of land] knows about or in the exercise of ordinary care should know about.” Keetch, 845 S.W.2d
at 267; see also Timberwalk, 972 S.W.2d at 753.
In Keetch, the plaintiff argued that Kroger exposed its customers to the unreasonable risk of
a fall by negligently conducting its plant spraying activity in an area of its store that was open to its
customers. 845 S.W.2d at 264. The court noted that a Kroger employee sprayed the plants sometime
prior to her 7 p.m. quitting time and that the plaintiff slipped on the floor and fell at approximately
7:30 pm. Id. The court found that there was no ongoing activity when the plaintiff was injured and
that while the plaintiff may have been injured by a condition created by the spraying, she was not
injured by the activity of spraying. Consequently, the injury was caused by a premises condition
rather than a negligent activity.
Here, Gibbs was injured as a result of the hijackers’ conduct. It was a hijacker who shot him.
The circumstances are more akin to a premises liability claim than a negligent activity claim and
Gibbs has failed to show otherwise. Accordingly, Point of Error Four is overruled.
CONCLUSION
Having determined that the third party criminal acts were not foreseeable under Timberwalk
and having further examined the evidence with regard to the other duties alleged, we conclude Gibbs
failed to provide more than a scintilla of probative evidence to raise a genuine issue of material fact.
Because summary judgment was proper, we overrule Issue One. The judgment of the trial court is
affirmed.
February 3, 2005
ANN CRAWFORD McCLURE, Justice
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Larsen, J., not participating)
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REVISED
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-50890
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO COLLAZO,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
July 9, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Orlando Collazo appeals his conviction on one count of
operating a motor vehicle while intoxicated in violation of Texas
Penal Code § 49.04 as incorporated into federal law by the
Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. We affirm.
I
Collazo, a civilian, was stopped for an identification check
at Gate One on Kelly Air Force Base (“Kelly AFB”). Having
observed Collazo’s erratic driving, the gate sentry sought to
obtain Collazo’s driver’s license and proof of insurance. When
Collazo rolled down the window of his pickup truck, the sentry
immediately detected the strong smell of alcohol. After some
difficulty, Collazo produced his driver’s license but he was
unable to show evidence of insurance. Collazo was very
inarticulate, and mumbled responses to the sentry’s questions.
Suspecting that Collazo was intoxicated, the sentry demanded
that Collazo surrender his truck keys. The sentry, together with
a couple of other airmen, then ordered Collazo out of the vehicle
and subjected him to a battery of field sobriety tests. After
Collazo failed the tests, he was taken into custody and charged
under the ACA with being “intoxicated while driving or operating
a motor vehicle in a public place” in violation of § 49.04 of the
Texas Penal Code.
The ACA subjects persons on federal lands to prosecution in
federal court for violations of criminal statutes of the state in
which the federal lands are located. The ACA has two main
purposes. First, it fills gaps in the federal criminal code that
governs federal enclaves. United States v. Sharpnack, 355 U.S.
286, 289, 78 S. Ct. 291, 293, 2 L. Ed. 2d 282 (1958). Second, it
conforms the laws regulating a federal enclave to those of the
state in which the enclave is located. Id. at 290-91, 78 S. Ct.
at 294-95. In relevant part, the ACA provides that a person is
-2-
subject to federal prosecution under state laws if he or she
“within or upon any [federal land] is guilty of any act or
omission which, although not made punishable by any act of
Congress, would be punishable if committed or omitted within the
jurisdiction of the State . . . .” 18 U.S.C. § 13(a). The ACA
specifically states that it incorporates state penal law
pertaining to “operating a motor vehicle under the influence of a
drug or alcohol . . . .” Id. at § 13(b)(1).
After a bench trial, the district court found that Collazo
was driving while intoxicated on a road in Kelly AFB, a federal
enclave, and thus he was guilty as charged. The district court
then sentenced Collazo to three months’ imprisonment, and ordered
him to pay a one hundred dollar fine and a ten dollar special
assessment.
II
Collazo argues that the district court erred in finding him
guilty because the government did not establish at trial that he
was in a “public place” while driving drunk, as required by
§ 49.04.
In considering an appeal from a criminal conviction in a
bench trial, we will affirm a verdict of guilty if there is any
substantial evidence to support it and if the evidence is
sufficient to justify the trial judge, as trier of fact, in
concluding beyond a reasonable doubt that the defendant was
3
guilty. United States v. Davis, 993 F.2d 62, 66 (5th Cir. 1993).
It is not our task to weigh the evidence or determine the
credibility of witnesses. United States v. Jennings, 726 F.2d
189, 190 (5th Cir. 1984). We must view all evidence in the light
most favorable to the government and defer to all reasonable
inferences drawn by the trial court. United States v.
Richardson, 848 F.2d 509, 511 (5th Cir. 1988). Our review is the
same whether the evidence is direct or circumstantial. United
States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995), cert. denied,
__ U.S. __, 116 S. Ct. 1582, 134 L. Ed. 2d 679 (1996).
Prosecution under the ACA does not enforce state law but
rather federal law assimilating state law. United States v.
Brown, 608 F.2d 551, 553 (5th Cir. 1979). Thus, a state court’s
interpretation of an assimilated state law is merely persuasive
authority. United States v. Kiliz, 694 F.2d 628, 629 (9th Cir.
1982).
The sentry who stopped Collazo testified that he saw Collazo
driving on the three-lane road that led to Gate One and that
Collazo was arrested on General Hudnell Drive where it passes
through Gate One. Photographic evidence in the record supports
this testimony and clearly indicates that Collazo was driving on
a street. A street is defined as “an urban way or thoroughfare”
and “includes all urban ways which can be and are generally used
for travel . . . .” BLACK’S LAW DICTIONARY 1274 (6th ed. 1990).
4
Under Texas law, a street is per se a “public place” for purposes
of § 49.04, and proof of driving on a street is sufficient to
meet the “public place” element of § 49.04. See TEX. PENAL CODE
ANN. § 1.07(a)(40) (defining “public place” as “any place to
which the public or a substantial group of the public has access
and includes, but is not limited to, streets [and] highways”);
King v. State, 732 S.W.2d 796, 803 (Tex. App. 1987, writ ref’d)
(holding that the Texas legislature has declared that streets and
highways, among other locations, are “public places” per se).
While a defendant might argue that a street in a restricted area
of a military base is not a public place, Collazo cannot
seriously make that contention here. He was convicted of driving
while intoxicated on a portion of a street on Kelly AFB which led
up to a checkpoint permitting entry to the main part of the base.
The photographic evidence indicates that any member of the public
can drive up to Gate One without passing through a guarded gate.
One photo, for instance, reveals a public bus in a line of
traffic waiting to enter the base. Another photo shows that Gate
One is adorned with a large “Welcome Kelly AFB” sign. Indeed,
Collazo’s very presence at Gate One suggests that the section of
General Hudnell Drive he was on was a “public place.” Collazo is
a civilian who would not be allowed to enter a restricted area of
a military base without special permission.
While the government did not specifically point out to the
5
district court that Collazo was driving in a public place, there
is ample evidence in the record indicating that Collazo was
driving on a portion of a street open to the public and, thus, in
a “public place” for purposes of § 49.04. See Tracey v. State,
350 S.W.2d 563, 563 (Tex. Crim. App. 1961) (holding that road
inside air force base was public place since at the time of the
defendant’s drunk driving, the road was open and traveled by the
public); Woodruff v. State, 899 S.W.2d 443, 445 (Tex. App. 1995,
writ ref’d) (ruling that “if the public has any access to the
place in question, it is a public place”), cert. denied, __ U.S.
__, 116 S. Ct. 945, 133 L. Ed. 2d 870 (1996); United States v.
Graef, 31 F.3d 362, 364 (6th Cir. 1994) (ruling that defendant
was driving in an area “open to the public” where he drove in an
unrestricted part of federal enclave before crashing through
security fence and ending up in restricted portion); see also
Nichols v. State, 49 S.W.2d 783, 784 (Tex. Crim. App. 1932)
(stating that “it would be intolerable to think that when
investigating the criminal liability of the drunken driver of an
automobile on a roadway, more or greater proof would be required
to establish the character of the road, than that it was or is
open for the use, or used by the public for traffic”); cf. United
States v. Hughes, 542 F.2d 246, 248 n.1 (5th Cir. 1976) (stating
that offense occurred on federal enclave and thus the court had
jurisdiction because “[t]he record is replete with evidence of
6
exactly where on Fort Rucker the offense occurred and the
district court could have taken judicial notice of the fact that
certain named streets and intersections are located on the
federal enclave”). Indeed, Collazo can muster no proof that he
was not in a public place. Thus, we find that the weight of the
evidence, viewed in a light most favorable to the government, is
sufficient to support the verdict.
Accordingly, we AFFIRM the judgment of the district court.
7
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-2704
___________
Glenn R. Waite, M.D., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Judge Richard D. Sievers; Judge D. *
Nick Caporale; Lanet S. Asmussen, * [UNPUBLISHED]
*
Appellees. *
___________
Submitted: December 5, 1997
Filed: December 23, 1997
___________
Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Glenn R. Waite, brought an action seeking damages under 42 U.S.C. §§ 1983
and 1985(3) against two Nebraska judges and a Nebraska court clerk. Waite claimed
the defendants individually, and in conspiracy, denied him access to the courts and
equal protection by refusing to file his pleading seeking to reopen an appeal in which
the mandate had issued nearly three years earlier, and by concealing the judicial
determination that such post-mandate pleadings would not be filed. Waite also sought
declaratory relief. The district court1 granted summary judgment to defendants based
on absolute judicial and quasi-judicial immunity, and denied declaratory relief. Waite
appeals.
We conclude summary judgment was proper. The evidence showed the
defendant judges acted within their judicial capacity and jurisdiction regarding the post-
mandate document and notification to Waite of the procedure being followed. See
Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per curiam) (discussing parameters of
judicial immunity). The evidence also established the defendant clerk acted at the
judges& direction. See Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir. 1988) (clerks
absolutely immune from actions for damages arising from acts that “they are
specifically required to do under court order or at judge&s direction”). Furthermore, any
conspiracy claim against defendants cannot overcome the bar of absolute immunity.
See Moses v. Parwatikar, 813 F.2d 891, 892-93 (8th Cir.), cert. denied, 484 U.S. 832
(1987). We agree Waite was not entitled to declaratory relief with respect to the
procedure the judges followed in his case.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The Honorable William G. Cambridge, Chief Judge, United States District
Court for the District of Nebraska.
-2-
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
TASEKO MINES Ltd., )
)
Plaintiff, )
)
v. ) Civil Action No. 16-390 (GK)
)
RAGING RIVER CAPITAL, et al., )
)
Defendants. )
~~~---~~~~~~~~~~~->
MEMORDANDUM OPINION
Plaintiff Taseko Mines Limited ( "Taseko" or "the Company")
brings this action against Raging River Capital LP, Raging River
Capital GP LLC, Granite Creek Partners, LLC, Westwood Capital LLC,
Paul M. Blythe Mining Associates Inc., Jonathan G. Lee Partners
LLC, Paul Blythe ("Blythe"), Nathan Milikowsky ("Milikowsky"),
Mark Radzik ( "Radzik") , Henry Park ("Park") and Jonathan Lee
("Lee") (collectively "Defendants"), alleging violations of
Section 13 (d) of the Securities Exchange Act of 1934 ("Exchange
Act").
This matter is before the Court on Defendants' Motion to
Dismiss ("Motion") [Dkt. No. 28]. Upon consideration of the Motion,
Opposition [Dkt. No. 34], Reply [Dkt. No. 36], and the entire
record herein, and for the reasons set forth below, the Motion
shall be granted in part and denied in part.
1
I . Background
A. Factual Overviewl
Taseko is a Canadian-based mining company whose shares are
traded on both the NYSE MKT and the Toronto Stock Exchange. Amended
Complaint 'II 2 ("Am. Compl. ") [ Dkt. No. 13] . Defendant Raging River
Capital LP, a Delaware limited partnership, was formed in December
2015 in order to acquire Taseko common shares. Id. 'II 16. Defendant
Raging River Capital GP LLC, is the General Partner for Raging
River Capital LP. Id. 'II 1 7. Defendants Granite Creek Partners,
LLC, Westwood Capital LLC, Paul M. Blythe Mining Associates Inc.,
and Nathan Milikowsky are Managing Members of Raging River Capital
GP LLC. Id. 'II'II 18-20, 23. Defendant Jonathan G. Lee Partners LLC
is a Member of Raging River Capital GP LLC. Id. 'II 21. Defendants
Paul Blythe, Mark Radzik, and Henry Park have been nominated by
Defendants for seats on Taseko's Board. Id. 'II'II 22, 24-25. Radzik
is also the Managing ·Partner of Granite Creek Partners, LLC, and
Park is the Chief Investment Officer and Principal of Westwood
Capital LLC. Id. 'II'II 24-25. Defendant Jonathan Lee is the President
1 For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, the facts set forth herein are taken from
Plaintiff's Complaint [Dkt. No. 1-2].
2
of Jonathan G. Lee Partners LLC and a Limited Partner of Raging
River Capital LP. Id. ~ 26.
In January 2016, Defendants acquired more than 5% of Taseko
common shares ("Taseko shares") and disclosed their acquisitions
of shares by filing a Schedule 13D on January 13, 2016 ("First
13D"), as required by the Exchange Act. Id. ~ 5. In December 2015
and January and February 2016, Defendants acquired Taseko senior
notes due in 2019 ("Notes"). Am. Compl. ~ 38. During that same
time period, Raging River Capital 2 LLC also acquired Taseko senior
notes due in 2019 ("Additional Notes"). Opp'n at 26.
Shortly after acquiring their shares, Defendants exercised
their rights under the Business Corporations Act (British
Columbia) ("BCBCA") 2 to demand that Taseko convene a shareholder
meeting to vote on the removal of three current Taseko directors
and the addition of four new directors nominated by Defendants.
Id. The shareholder meeting is currently scheduled for May 10,
2016.
On February 26, 2016, Taseko filed a Complaint [Dkt. No. 1]
in this matter, alleging that the First 13D failed to include
information required by§ 13(d) of the Exchange Act and is false
and misleading. In response, Defendants filed an amended Schedule
2 Corporations in Canada can choose to incorporate federally
under the Canada Business Corporations Act ("CBCA"), RSC 1985,
c C-44 (Can.), or provincially under a province's similar law,
such as the BCBCA, SBC 2002, c 57 (Can) .
3
13D on March 9, 2016 ("First Amended 13D"), which included the
original Complaint as an exhibit. See First Amended 13D, Exhibit
2 to Mot. [Dkt. No. 28-2]; Amended Complaint ("Am. Compl.") <JI 6
[Dkt. No. 13]. On March 21, 2016, Plaintiff filed an Amended
Complaint, claiming that the First Amended 13D only cured some of
the issues it had raised and that Defendants' disclosures remain
materially deficient. Am. Compl. <JI 6. On March 28, 2016, Raging
River filed a second amended Schedule 13D ("Second Amended 13D")·.
Opp'n at 4.
In the midst of these actions, Taseko filed a Motion to Lift
Stay and Expedite Discovery on March 14, 2016 [Dkt. No. 12], in
anticipation of Defendants' Motion to Dismiss. In private
securities actions, the Private Securities Litigation Reform Act
of 1995 ("PSLRA") imposes an automatic stay of all discovery and
other proceedings pending a motion to dismiss, subject to certain
exceptions. 15 U.S.C. § 78u-4 (b) (3) (B). Taseko expressed its need
for limited discovery on certain issues to support its planned
preliminary injunction motion, and indicated that it would suffer
prejudice if the stay were not lifted and discovery expedited.
Motion to Lift Stay at 2-3. This Court granted the Motion to Lift
Stay for purposes of limited discovery on April 4, 2016. See
Memorandum Order [Dkt. No. 33].
After Defendants filed the Second Amended 13D, Plaintiffs
acknowledged that the filing mooted some of the issues it had
4
raised. Specifically, Taseko is no longer seeking corrective
disclosures with respect to Defendants' alleged affirmative
misrepresentations nor is it seeking disclosure of "undisclosed
groups" in light of Defendants' representation that no such
additional groups exist. Opp'n at 13. Taseko is still seeking the
following information that it believes Defendants are required to
disclose:
1. The amount of funds provided by each limited partner
of Raging River Capital LP for the purchase of Taseko
shares and Notes;
2. The purpose for which Defendants acquired the Taseko
Notes;
3. All contracts, arrangements, understandings and/or
relationships between Defendants and other persons with
respect to any Taseko securities.
Id. On April 15, 2016, the same day Defendants filed their Reply
in support of the present Motion to Dismiss, Defendants filed a
Third Amended Schedule 13D ("Third Amended 13D"). See Third Amended
13D, Exhibit A to Reply [Dkt. No. 36-2]. Defendants argue that the
Third Amended 13D addresses all of Taseko's remaining issues. Reply
at 1-2.
B. Securities Exchange Act of 1934
Section 13(d) of the Exchange Act mandates that "any person"
who becomes "directly or indirectly the beneficial owner of more
than 5 per centum" of a class of securities of an issuing
corporation must file a statement setting forth certain
5
information with the SEC and send the statement to the issuer
within 10 days after such acquisition. 15 U.S.C. § 78m(d). "Person"
is not limited just to individuals; the. Exchange Act states that
"when two or more persons act as a . group for the purpose of
acquiring, holding, or disposing of securities of an issuer, such
syndicate or group shall be deemed a 'personj for the purposes of
this subsection." 15 U.S.C. § 78m(d) (3). The SEC has prescribed
'
Schedule 130 as the official form for compliance with§ 13(d) of
the Exchange Act. 17 C.F.R. § 240.13d-101.
Under the Exchange Act, the Schedule 130 shall contain the
following information:
(A) the background, and identity, residence, and
citizenship of, and the nature of such beneficial
ownership by, such person and all other persons by whom
or on whose behalf the purchases have been or are to be
effected;
(B) the source and amount of the funds or other
consideration used or to be used in making the purchases,
and if any part of the purchase price is represented or
is to be represented by funds or other consideration
borrowed or otherwise obtained for the purpose of
acquiring, holding, or trading such security, a
description of the transaction and the names of the
parties thereto, except that where a source of funds is
a loan made in the ordinary course of business by a bank,
as defined in section 78c (a) ( 6) of this title, if the
person filing such statement so requests, the name of
the bank shall not be made available to the public;
(C) if the purpose of the purchases or prospective
purchases is to acquire control of the business of the
issuer of the securities, any plans or proposals which
such persons may have to liquidate such issuer, to sell
its assets to or merge it with any other persons, or to
6
make any other major change in its business or corporate
structure;
(D) the number of shares of such security which are
beneficially owned, and the number of shares concerning
which there is a right to acquire, directly or
indirectly, by (i) such person, and (ii) by each
associate of such person, giving the background,
identity, residence, and citizenship of each such
associate; and
(E) information as to any contracts, arrangements, or
understandings with any person with respect to any
securities of the issuer, including but not limited to
transfer of any of the securities, joint ventures, loan
or option arrangements, puts or calls, guaranties of
loans, guaranties against loss or guaranties of profits,
division of losses or profits, or the giving or
withholding of proxies, naming the persons with whom
such contracts, arrangements, or understandings have
been entered into, and giving the details thereof.
15 U.S.C. 78m(d) (1).
II. Legal Standard
A. Standard of Review Under Fed. R. Civ. P. 12(b) (6)
To survive a motion to dismiss under Rule 12(b) (6) for failure
to state a claim upon which relief can be granted, a plaintiff
need only plead "enough facts to state a claim to relief that is
plausible on its face" and to "nudge[ ] [his or her] claims across
the line from conceivable to plausible." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint." Id. at 563.
Under the Twombly standard, a "court deciding a motion to
dismiss must not make any judgment about the probability of the
7
plaintiffs' success . [,] must assume all the allegations in
the complaint are true (even if doubtful in fact) [, and]
must give the plaintiff the benefit of all reasonable inferences
derived from the facts alleged." Aktieselskabet AF 21. November
2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal
quotation marks and citations omitted). The court shall not,
however, accept as true "legal conclusions or inferences that are
unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign
Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014) (citation
omitted). Furthermore, a complaint which "tenders 'naked
assertion[s]' devoid of 'further factual enhancement'" will not
suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 557) (alteration in Iqbal).
B. PLSRA
"As a check against abusive litigation in private securities
fraud actions, the Private Securities Litigation Reform Act of
1995 (PSLRA) includes exacting pleading requirements," beyond the
requirements of Rule 12 (b) (6). Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 308 (2007). The PSLRA requires that a
plaintiff asserting a violation of the federal securities laws
based on a false or misleading statement must "specify each
statement alleged to have been misleading, the reason or reasons
why the statement is misleading, and if an allegation regarding
the statement or omission is made on information and belief,
8
state with particularity all facts on which that belief is formed."
15 U.S.C. § 78u-4 (b) (1).
Put differently, the Court "must ascertain whether the
complaint states sufficient facts to permit a reasonable person to
find that the plaintiff satisfied this element of his claim-that
the defendant made a false or misleading statement." Teachers'
Ret. Sys. of Los Angeles v. Hunter, 477 F.3d 162, 173 (4th Cir.
2007). In evaluating the facts, the Court should consider: "the
number and level of detail of the facts; the plausibility and
coherence of the facts; whether sources of the facts are disclosed
and the apparent reliability of those sources; and any other
criteria that inform how well the facts support the plaintiff's
allegation that defendant's statements or omissions were
misleading." Id. at 174.
III. Analysis
A. The Amended Complaint Is Subject to the PSLRA's Pleading
Requirements
As an initial matter, Taseko contends that its Amended
Complaint is not subject to the PSLRA pleading requirements,
arguing that the pleading requirements apply only to "securities
fraud actions." Opp' n at 2. The basis for Taseko' s argument is
that the section heading for 15 U.S.C. § 78u-4(b) (the heightened
pleading requirements) reads, "Requirements for securities fraud
actions," and Taseko contends that this is _not a fraud action. Id.
9
The plain language of the statute suggests otherwise. Our
Court of Appeals has consistently held that "[t]he plain meaning
of a statute cannot be limited by its title." Nat'l Ctr. for Mfg.
Scis. v. Dep't of Def., 199 F.3d 507, 511 (D.C. Cir. 2000) (citing
Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206 (1998)).
Taseko's claim is based on 15 U.S.C. 78m(d) (Section 13(d) of
the Exchange Act), which is found in the same chapter as .Section
78u-4(b). Section 78u-4(b) specifically states that its pleading
requirements apply to "any private action arising under this
chapter in which the plaintiff alleges that the defendant (A) made
an untrue statement of a material fact; or (B) omitted to state a
material fact necessary in order to make the statements made, in
the light of the circumstances in which they were made, not
misleading." 15 U.S.C. § 78u-4 (b) (1) (emphasis added). With such
clear statutory language, it is difficult to see how the PLSRA's
heightened pleading requirements could not apply.
In addition to the pleading requirements, Section 78u-4(b)
also contains the PSLRA's automatic stay of discovery provisions,
which Taseko did not dispute were applicable in this instance. See
Motion to Lift Stay at 8. In other words, even though both the
pleading requirements and the stay provisions are in the section
titled "Requirements for securities fraud actions," Taseko argues
that only the stay provisions are applicable to the case at hand.
10
15 U.S. C. § 7 Bu-4 (b) . Such inconsistency within the statute is
highly unlikely.
For these reasons, the Court finds that Taseko' s Amended
Complaint is subject to the heightened pleading requirements of
the PSLRA. 3
B. Plaintiff Has Sufficiently Stated a Claim
Defendants argue that Taseko has not pled facts sufficient to
satisfy the heightened pleading requirements of the PSLRA. See
Mot. at 11. They argue that mere speculation that additional
information might exist which should have been disclosed is not
sufficient to meet the PSLRA pleading standards. Id. at 12. With
regard to Taseko's allegations of false or misleading statements~
Defendants contend that Taseko must demonstrate with specificity
why and how they are false or misleading. Id.
1. Specific Sources of Funds
In its Amended Complaint, Taseko alleges that Defendants
failed to disclose "the specific source of funds provided by each
3 Defendants allege that the Amended Complaint must also "state
with particularity facts giving rise to a strong inference that
the defendant acted with the required state of mind." Mot. at 12
(quoting 15 U.S.C. § 78u-4 (b) (2) (A)). This is incorrect. The
scienter requirement applies only to actions "in which the
plaintiff may recover money damages," 15 U.S. C. § 7 Bu-4 (b) ( 2) (A) ;
see also SEC v. e-Smart Technologies, Inc., 82 F. Supp. 3d 97, 104
( D. D. C. 2015) ( "scienter is unnecessary to establish a violation
of Section 13(d) (l)"). The Amended Complaint does not seek money
damages. See Am. Compl. at 20-21. Accordingly, there is no scienter
requirement.
11
limited partner of Raging River Capital LP" to purchase Taseko
shares and notes. Am. Compl. ~ 35. The First Amended 13D states,
in response to question number 4, "Source of Funds," that the
acquisitions were funded out of Raging River Capital LP's working
capital (abbreviated as "WC" per the Schedule 13D instructions) .
First Amended 13D at 2.
Al though Defendants contend that no further disclosure is
required, Mot. at 14, they nonetheless disclosed "the capital
contributions of each [of] the limited partners to Raging River
[Capital LP]" "for the purposes of purchasing the Common Shares
and the Notes" in the Third Amended 13D. Third Amended 13D at 2.
Attached to the Third Amended 13D is a chart listing the capital
contributions of each of the partners of Raging River LP. Third
Amended 13D at 5 (Exhibit 99.11). Defendants argue that Taseko's
request for this information is now moot. Reply at 8-9.
Given Defendants' disclosure, the Court need not decide
whether such disclosure was required by Section 13D. Taseko asked
for "[t]he amount of funds provided by each limited partner of
Raging River Capital LP for the purchase of Taseko shares and
Notes," Opp'n at 13, which Defendants have now provided.
Accordingly, Taseko's claim is moot and will be dismissed.
12
2. Purpose of the Acquisition
Taseko's next claim is that Defendants have not sufficiently
stated the purpose for which they acquired the Taseko Notes, as
required by Item 4 of Schedule 13D.
In its Opp'n, Taseko quotes a portion of Defendants' First
Amended 13D, discussing the purchases of the Notes:
In December 2015 and January and February 2016, the
Reporting Persons acquired the Issuer's 7.75% senior
notes due 2019 with an aggregate cost of $6,040,323
(excluding accrued interest) (the "Notes") . In
addition to the Notes acquired by the Reporting
Persons, Raging River Capital 2 LLC ("RC 2 LLC"), a
Delaware limited liability company established solely
as an investment vehicle for Notes of the Issuer,
acquired in December 2015 and February 2016, the
Issuer's 7.75% senior notes due 2019 with an
aggregate cost of $2,873,737 (excluding accrued
interest) (th~ "Additional Notes") .
Opp'n at 26 (quoting First Amended 13D at 13). Taseko points to
this quote as evidence of Defendants' failure to state a purpose
for the purchase of the Notes. Defendants point out that the quote
omits a later portion of the same paragraph in which Defendants
state that Raging River Capital 2 LLC acquired the Additional Notes
"for investment purposes because it believed that they represented
an attractive investment opportunity." First Amended 13D at 13.
What Defendants overlook though, is that this only provides an
explanation for the purpose of the Additional Notes acquired by
Raging River Capital 2 LLC (not a party to this case), not the
Notes acquired by Defendants.
13
In the Third Amended 13D, Defendants state "that they acquired
the Notes for investment purposes because they believed the Notes
represented an attractive investment opportunity" and that they
"also intend to pursue a concerned shareholder campaign in respect
of the Issuer" Third Amended 13D at 2. This description of
Defendants' purpose in acquiring the Taseko Notes is nearly
identical to its stated purpose for acquiring the Taseko shares,
and Taseko does not dispute the adequacy of that disclosure. See
Opp'n at 26-27. Therefore, the Court finds that the Third Amended
13D has mooted Taseko's claim for information regarding the purpose
for which Defendants acquired the Notes. As such, the Court need
not address the parties' di$pute as to whether Schedule 13D
requires the disclosure of this information and this claim is
dismissed.
3. Alleged Failure to Disclose Agreements
Next, Taseko alleges that Defendants have not disclosed all
of their agreements and arrangements with respect to Taseko
securities. Am Compl. ~~ 47-52; Opp'n at 27. In particular, Taseko
alleges that "there are almost certainly undisclosed agreements or
14
.
understandings" involving Randy Davenport 4 and/ or Jonathan Lee. 5
Opp' n at 27-28. Taseko also alleges the likely existence of a
contract with Wanxiang America, the sole investor in Raging River
Capital 2 LLC, concerning the possible sale of a copper mining
asset owned by Taseko. Id. at 10-11, 28. Taseko infers this from
Wanxiang's involvement in Raging River Capital 2 LLC, as well as
Wanxiang's past interest in purchasing the copper mine.
Item 6 of Schedule 13D requires the filer to "[d]escribe any
contracts, arrangements, understandings or relationships (legal or
otherwise) among the [filers] and between such persons and any
person with respect to any securities of the issuer . ,, 1 7
C.F.R. § 240.13d-101.
Defendants argue that Plaintiff has failed to allege facts
showing that any of the Defendants have an undisclosed agreement
with "any other stockholder beside the Reporting Persons to 'act
together for the purpose of acquiring, holding, voting or disposing
of equity securities' of Taseko, which is required for a 'group'
to exist (or that there is any requirement to disclose 'contracts,
4 Mr. Davenport is one of Raging River's nominees to Taseko's Board
of Directors and his company, RL Davenport Resources, Inc., is a
limited partner in Raging River Capital LP. First Amended 13D at
13; Opp'n at 27.
5 Defendant Lee allegedly "orchestrated the Defendants' purchases
of Taseko common shares from a Taseko insider." Opp'n at 28. Lee
is also a limited partner in Raging River Capital LP and his
company, Jonathan G. Lee Partners LLC, is a member of Raging River
Capital GP LLC. First Amended 13D at 14; Opp'n at 28.
15
arrangements, understandings and/or relationships between
Defendants and such other Taseko shareholders' when a 'group' does
not exist[)]." Mot. at 17 (quoting 17 C.F.R. § 240.13d-5(b) (1) 6 ).
Item 6 is broad and, contrary to Defendants'
characterization, its requirements stand independent of whether or
not a "group" exists. Item 6 clearly encompasses agreements between
filers "and any person with respect to any securities of the
issuer." Id. (emphasis added) . Not all parties to the agreements
need to be members of a "group" and nothing in Item 6 suggests
that its requirements are contingent on the existence of a "group."
Defendants argue that they have satisfied the reporting
requirements of the Exchange Act and mooted Plaintiff's claim by
attaching Taseko's complaints to their Schedule 13Ds. Defendants
claim they are "not required to adrni t allegations in a Schedule
13D that [they] dispute [] in good faith." Mot. at 15 (quoting
Cartica Mgmt., LLC v. Corpbanca, S.A., 50 F. Supp. 3d 477, 494
(S.D.N.Y. 2014)); Reply at 12. When "the record demonstrates that
there is a dispute as to the facts, the law requires only that the
disputed facts and possible outcomes be disclosed." Cartica Mgmt.,
6 The statute reads: "When two or more persons agree to act together
for the purpose of acquiring, holding, voting or disposing of
equity securities of an issuer, the group formed thereby shall be
deemed to have acquired beneficial ownership, for purposes of
sections 13 ( d) of all equity securities of that issuer
beneficially owned by any such persons." 17 C.F.R. § 240.13d-
5(b)(l).
16
50 F. Supp. 3d at 495-96 (quoting Avnet, Inc. v. Scope Indus., 499
F. Supp. 1121, 1125-26 (S.D.N.Y.1980)).
Defendants "unequivocally state that they have disclosed all
contracts, arrangements, understandings and relationships that are
required to be disclosed by Rule 13(d) and the regulations
promulgated thereunder." Reply at 11. Defendants continue that,
because there is a dispute as to the fact of the existence of any
such agreements, they have satisfied their reporting requirements
by disclosing Plaintiff's allegations. Reply at 12-13.
Unfortunately, Defendants' "unequivocal" statement is unclear
as to whether the dispute relates to facts or the law
specifically the requirements of Rule 13 ( d) . Given Defendants'
incorrectly narrow interpretation of Item 6, Defendants' statement
assures the Court only that they believe they are not required to
disclose any additional agreements under their interpretation of
the law, not that no such agreements exist. Accordingly,
Defendants' attachment of the Amended Complaint to their Schedule
13D disclosures does not discharge their Section 13D obligations
on this issue.
The Court finds that Plaintiff has sufficiently pled facts
regarding possible undisclosed agreements involving Randy
Davenport, Jonathan Lee, and Wanxiang America to survive a motion
to dismiss. Plaintiff's allegations are detailed, plausible, and
coherent, and when considered in light of Defendants' continued
17
reticence to disclose information, including contracts involving
the filing parties, 7 the Court finds that Plaintiff has
sufficiently stated facts that would "permit a reasonable person
to find that the plaintiff satisfied this element of his claim-
that the defendant made a false or misleading statement." Hunter,
477 F.3d at 173. Defendants' request for dismissal of this claim
will be denied.
4. Alleged Failure to Include Jonathan Lee and
Jonathan G. Lee Partners LLC as Reporting Persons
Taseko's final remaining claim is that, based on "Mr. Lee's
role in orchestrating the Defendant's purchase of Taseko common
shares," he and his company should have been included as Schedule
13D reporting persons. Opp'n at 30; Arn. Compl. ~~ 52, 62-42.
Under the Exchange Act, as noted previously, all beneficial
owners of more than 5% of a security must file a Schedule 130. 17
C.F.R. § 240.13d-1. For purposes of§ 13D, a beneficial owner is:
any person who, directly or indirectly, through any
contract, arrangement, understanding, relationship, or
otherwise has or shares:
(1) Voting power which includes the power to
vote, or to direct the voting of, such security;
and/or,
7 For example, the First 13D did not include the partnership
agreement for Raging River Capital LP, al though the agreement
explicitly states that its principal objective is to effect changes
in Taseko's board of directors by acquiring common shares and bonds
of Taseko and carrying out a concerned shareholder campaign. See
First 13D; First Amended 13D Exhibit 99.3 at 3.1
18
(2) Investment power which includes the power to
dispose, or to direct the disposition of, such
security.
17 C.F.R. § 240.13d-3. Although Defendants have stated that
Jonathan Lee ("Lee") and Jonathan G. Lee Partners LLC ("Lee
Partners") do "not have voting power or investment power,"
Mot. at 18, Plaintiff argues that because Lee is a limited
partner of Raging River Capital, LP and Lee Partners is a
member of Raging R.iver Capital GP LLC, "[a] t the very least,
it is not clear, based on Mr. Lee's investments and
involvements in those special-purpose entities, that he does
not share power over voting and/or disposition of the Taseko
common shares." Opp'n at 31-32.
Such an allegation is not sufficient to meet the pleading
requirements of the PSLRA. Plaintiff does not plead specific
facts to support its allegation that Lee and Lee Partners are
beneficial owners, but instead alleges that it is merely a
possibility that Lee and Lee Partners are beneficial owners.
Next, Plaintiff argues that, even if Mr. Lee cannot
influence the voting or disposition of Defendants' Taseko
shares, he is still required to join as a reporting person on
the Schedule 13D "based on his role in purchasing the Taseko
common shares." Opp' n at 32. As discussed previously, a
"group" for purposes of Section 13D is formed when "two or
more persons agree to act together for the purpose of
19
acquiring, holding, voting or disposing of equity securities
of an issuer." 1 7 C. F. R. § 240 .13d-5. Members of the group
are considered reporting persons. 15 U.S.C. § 78m(d) (3).
Taseko alleges that Lee initiated and participated in
the negotiations and acquisitions of the Taseko shares, and
is therefore a member of the group. Opp'n at 32. Defendants
point to case law holding that a person must have a beneficial
ownership interest in order to be considered a member of the
group. See Hemipherx Biopharma, Inc. v. Johannesburg Consol.
Invs., 553 F.3d 1351, 1363-64 (11th Cir. 2008) (holding that
a person must actually own a beneficial interest in shares in
order to incur reporting liabilities under section 13(d));
Rosenberg v. XM Ventures, 274 F.3d 137, 147 (3d Cir. 2001)
("based upon the statutory and regulatory text, relevant
legislative history, and caselaw from our sister circuits, we
conclude that . . . each member of a section 13(d) group must
hold beneficial ownership of the shares of the issuing entity
prior to becoming a section 13(d) group member").
At most, there is a disputed factual question as to
whether Lee was part of the "group." Defendants once again
argue that, because there is a genuine factual dispute and
they have "disclosed all material facts regarding Taseko's
position on this issue," the claim is moot. Reply at 16;
Avnet, 499 F. Supp. at 1125 (the "purpose of the disclosure
20
,,
provisions of the securities laws is to see to it that the
[shareholder] discloses to the investor the facts as truly
believed by the discloser. When, as here, the record
demonstrates that there is a dispute as to the facts, the law
requires only that the disputed facts and the possible
outcomes be disclosed") .
Plaintiffs have not sufficiently alleged facts to show
that Lee or Lee Partners were required to file Schedule 13Ds.
Even if they had, to the extent there would have been a
genuine dispute as to the facts of Lee and Lee Partners'
status as beneficial owners or members of a group, Defendants
have made adequate disclosures in their Schedule 13D filings,
which include Taseko's allegations. See First Amended 13D.
Accordingly, Defendants' motion will be granted and this
claim will be dismissed.
IV. Conclusion
For all of the foregoing reasons, Defendants' Motion to
Dismiss is granted in part and denied in part. An Order shall
accompany this Memorandum Opinion.
April 26, 2016 Gli:i.dys Ke ler
United States District Judge
Copies to: attorneys on record via ECF
21
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Opinion issued January 16, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00172-CV
———————————
QUINCY DESHAN BUTLER, Appellant
V.
BANK OF AMERICA, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2018-40373
MEMORANDUM OPINION
Quincy Deshan Butler, an inmate, appeals the trial court’s judgment
dismissing Butler’s underlying civil action for want of prosecution. We conclude
that Butler has failed to comply with the requirements of Chapter 14 of the Texas
Civil Practice and Remedies Code and therefore dismiss his appeal without reaching
the merits of his challenge to the trial court’s dismissal. See, e.g., Wilkerson v.
Ramsey 1 Unit, No. 01-14-00790-CV, 2015 WL 1825802, at *1–2 (Tex. App.—
Houston [1st Dist.] Apr. 21, 2015, no pet.); Deroven v. Blanchard, No. 10–14–
00223–CV, 2014 WL 5316730, at *1 (Tex. App.—Waco, Oct. 16, 2014, no pet.);
Cantu v. Curran, No. 14–13–00704–CV, 2014 WL 866027, at *2 (Tex. App.—
Houston [14th Dist.] Mar. 4, 2014, pet. denied).
Because this case involves a suit brought by an inmate in a district court in
which the inmate filed an affidavit or unsworn declaration of inability to pay costs,
the action is governed by Chapter 14 of the Civil Practice and Remedies Code. See
TEX. CIV. PRAC. & REM. CODE § 14.002(a). “A trial court may dismiss an inmate’s
lawsuit for failing to comply with the procedural requirements of Chapter 14.” Scott
v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(citing Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.—Houston [1st Dist.]
2000, no pet.)).
Effective as of January 1, 2012, Chapter 14 of the Civil Practice and Remedies
Code was amended so that its requirements regarding inmate litigation apply to
actions filed in an appellate court. See TEX. CIV. PRAC. & REM. CODE § 14.002(a)
(as amended, Chapter 14 applies to “an action, including an appeal or original
proceeding, brought by an inmate in a district, county, justice of the peace, or small
2
claims court or an appellate court, including the supreme court or the court of
criminal appeals, in which an affidavit or unsworn declaration of inability to pay
costs is filed by the inmate.”) (emphasis added); see also Douglas v. Moffett, 418
S.W.3d 336, 339 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Hickman v. Tex.
Dep’t of Criminal Justice, No. 13–12–00437–CV, 2013 WL 3770916, at *2 (Tex.
App.—Corpus Christi–Edinburg July 18, 2013, no pet.). “When an inmate litigant
files an affidavit or unsworn declaration of inability to pay costs, Chapter 14 requires
the inmate to file an additional affidavit or declaration setting forth specific details
on all previous actions filed pro se, other than a suit brought under the Texas Family
Code.” Moffett, 418 S.W.3d at 339 (citing TEX. CIV. PRAC. & REM. CODE
§ 14.004(a)); see also Douglas v. Porter, No. 14–10–00055–CV, 2011 WL 1601292,
at *2–3 (Tex. App.—Houston [14th Dist.] Apr. 26, 2011, pet. denied). This
additional affidavit or unsworn declaration must be accompanied by a certified copy
of the inmate’s “trust account statement.” TEX. CIV. PRAC. & REM. CODE
§§ 14.004(c), 14.006(f).
“The filings required under [C]hapter 14 are ‘an essential part of the process
by which courts review inmate litigation.’” Douglas v. Turner, 441 S.W.3d 337,
339 (Tex. App.—Waco 2013, no pet.) (quoting Hickson v. Moya, 926 S.W.2d 397,
399 (Tex. App.—Waco 1996, no writ)); see also Hickman, 2013 WL 3770916, at
*2. Failure to file the required affidavit or declaration of previous filings or the
3
inmate account statement can result in dismissal without notice or hearing. See
Turner, 441 S.W.3d at 339; see also Hickman, 2013 WL 3770916, at *2. When the
inmate fails to comply with the affidavit requirements, the court may assume that
the current action is substantially similar to one previously filed by the inmate and
is frivolous. See Turner, 441 S.W.3d at 339; see also Hickman, 2013 WL 3770916,
at *2.
On appeal, Butler filed an affidavit of inability to pay costs. However, Butler
did not file a certified copy of his inmate trust account statement with his affidavit
of inability to pay costs, nor did he file an additional affidavit or declaration relating
to previous filings. After being notified that this appeal was subject to dismissal
unless he fulfilled all of the missing Chapter 14 requirements, Butler filed a copy of
his trust account statement but failed to file an affidavit or declaration regarding
previous filings. Accordingly, because the requirements of Chapter 14 apply to this
appeal and have not been met, we dismiss the appeal without notice as frivolous.
See Wilkerson, 2015 WL 1825802, at *1–3; Gozdowski v. T.D.C.J.-I.D., No. 12–14–
00350–CV, 2014 WL 6983246, at *1 (Tex. App.—Tyler Dec. 10, 2014, no pet.).
Any pending motions are dismissed as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
4
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968 F.2d 158
61 USLW 2021
UNITED STATES of America, Appellant,v.Frank JACKSON, Defendant-Appellee.
No. 1082, Docket 91-1664.
United States Court of Appeals,Second Circuit.
Argued March 16, 1992.Decided June 15, 1992.
Thomas McC. Souther, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Annmarie Levins, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellant.
David B. Levitt, The Legal Aid Society, Federal Defender Services Appeals Unit, New York City, for defendant-appellee.
Before: MESKILL and PRATT, Circuit Judges, and NICKERSON,* District Judge.
MESKILL, Circuit Judge:
1
The government appeals from a decision entered in the United States District Court for the Southern District of New York, Lasker, J., declaring the enhanced penalty provisions of 21 U.S.C. § 841(b) and United States Sentencing Guidelines (Guidelines) § 2D1.1 void for vagueness because the provisions do not define the term "cocaine base." United States v. Jackson, 768 F.Supp. 97 (S.D.N.Y.1991). Those provisions impose substantially greater sentences for offenses involving cocaine base than for offenses involving the same amount of cocaine. 21 U.S.C. § 841(b); Guidelines § 2D1.1.
2
Defendant-appellee Frank Jackson was convicted, upon a plea of guilty, of "possession with intent to distribute cocaine ('crack')" in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. Because the district court determined that the enhanced penalty provisions were unconstitutionally vague, it sentenced Jackson to the lesser punishment that would have been proper if the substance involved in the offense had been cocaine.
BACKGROUND
3
In May 1989 police officers stopped a car in which Jackson and co-defendant Frank Culmer were passengers. The police found a brown paper bag containing 300 grams of a substance the government identified as cocaine base or "crack" and 125 grams of a substance the government identified as cocaine. Jackson was charged with one count of unlawfully, intentionally and knowingly possessing with intent to distribute approximately 300 grams of mixtures and substances that contain a detectable amount of cocaine base in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2, and one count of unlawfully, intentionally and knowingly possessing with intent to distribute approximately 125 grams of mixtures and substances that contain a detectable amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. Jackson entered a plea of guilty on the first count of possession with intent to distribute cocaine base. The second count was dismissed.
4
At his plea allocution Jackson explained that Culmer had told him that Culmer could get some "crack" and promised that if Jackson accompanied him, Culmer would give Jackson a share of the proceeds from a drug sale. Judge Lasker specifically asked Jackson if Jackson knew that the substance in Culmer's possession was "crack." Jackson responded "yes."
5
Despite this plea, Jackson later professed not to know what type of drugs Culmer intended to purchase. In a letter to Judge Lasker in connection with his sentencing Jackson wrote that Culmer "never even told me what kind of drugs or how much he was going to get but I also figured it would be some types [sic] of cocaine."
6
After Jackson pleaded guilty, a report of the Drug Enforcement Administration (DEA) Laboratory, dated June 2, 1989, identified the alleged "crack" cocaine as cocaine base with a purity of 27 percent. On November 8, 1990, in response to the substance's low purity level, Jackson moved for either an order directing the government to produce samples of the substance alleged to be cocaine base or an order directing retesting by the government chemist and a precise description of the procedures used by the chemist. In an affidavit in support of the motion, defense expert Dr. Morris S. Zedeck explained why a retesting was necessary and described the test to be used. Judge Lasker responded to the motion by permitting Dr. Zedeck and another doctor to retest the alleged cocaine base.
7
After performing two tests on the sample Dr. Zedeck concluded that the substance was cocaine base. Because the substance was highly impure, however, he questioned whether the substance could have been used as "crack." Specifically Dr. Zedeck's conclusion was as follows:
8
Based on the GC/MS scans, the ion ratios, the solvents used to extract the pellets and the volumes of solvent employed, the data indicate that the material was cocaine base. There are several indications that this sample of "crack" is highly impure. First, the DEA calculated that the sample contained 27% cocaine. In our limited study to determine form of cocaine and not quantitation, using only a two point standard curve, our data are similar with those of the DEA; we found the sample to contain 22.7% cocaine. The form of the material being soft, sticky, oily and brownish indicates the presence of impurities. Pure cocaine would not have left an oily residue after ether extraction. Crack is supposed to be a whitish, dried, hard pellet. It is difficult to predict whether this material could have been used as crack.
9
(emphasis added).
10
At sentencing Jackson contended that the provisions that punish cocaine base offenses more severely than offenses involving cocaine are unconstitutional because they are impermissibly vague with regard to what constitutes cocaine base.
11
The district court agreed with Jackson and held that the failure of the statute and Guidelines to define "cocaine base" rendered the enhanced penalty provisions unconstitutionally vague both on their face and as applied to Jackson's case. Troubling to the court was the failure of the courts of appeals to reach a consensus as to the meaning of "cocaine base." The court reasoned that the provisions were void for vagueness because "the substance in question may or may not be cocaine base depending upon which definition the chemist, the prosecutor or the court chooses to adopt." Jackson, 768 F.Supp. at 101.
12
Accordingly at sentencing Judge Lasker calculated Jackson's offense level based on possession of cocaine rather than possession of cocaine base. This resulted in a Guidelines range of 63 to 78 months. The judge sentenced Jackson to 63 months imprisonment followed by a three year term of conditional supervised release. The government brought this appeal in response to the court's ruling on the constitutionality of section 841(b) and Guidelines § 2D1.1 and its sentencing of Jackson.
DISCUSSION
13
In 1986 Congress passed the Anti-Drug Abuse Act that, inter alia, amended 21 U.S.C. § 841(b)(1) to provide for enhanced penalties for possession with intent to distribute specified amounts of controlled substances. See P.L. 99-570, § 1002(2). As a result, section 841(b)(1) and the corresponding Guideline, § 2D1.1, impose a substantially greater penalty for possession with intent to distribute cocaine base than for possession with intent to distribute cocaine. The enhanced penalty provisions' failure to define "cocaine base" has generated numerous appeals. See, e.g., United States v. Shaw, 936 F.2d 412, 413-16 (9th Cir.1991); United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 887, 116 L.Ed.2d 791 (1992); United States v. Turner, 928 F.2d 956, 959-60 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991); United States v. Avant, 907 F.2d 623, 624-27 (6th Cir.1990); United States v. Pinto, 905 F.2d 47, 49-50 (4th Cir.1990); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir.1989); United States v. Brown, 859 F.2d 974, 975-77 (D.C.Cir.1988) (per curiam).
14
Section 841(b) imposes mandatory minimum prison terms for narcotics offenses that involve specified amounts of controlled substances. 21 U.S.C. § 841(b). For example, an individual convicted of possession with intent to distribute five kilograms of a mixture or substance containing a detectable amount of "cocaine, its salts, optical and geometric isomers, and salts of isomers" faces a minimum prison term of ten years, 21 U.S.C. § 841(b)(1)(A)(ii); for possession of 500 grams, the minimum prison term is five years, id. § 841(b)(1)(B)(ii). A much smaller amount of cocaine base is required to trigger the same penalties. Possession with intent to distribute merely fifty grams of "cocaine base" triggers the ten year mandatory minimum, id. § 841(b)(1)(A)(iii), while only five grams results in the mandatory minimum of five years, id. § 841(b)(1)(B)(iii).
15
Guidelines § 2D1.1 sets sentencing ranges for controlled substance offenses based on the sentences mandated by section 841(b), see Guidelines § 2D1.1, Application Note 10, and uses the same terminology as the statute.
16
The impact of differentiating between cocaine and cocaine base in Jackson's case is substantial. Jackson was convicted of possession with intent to distribute 300 grams of cocaine. If the substance is classified as "cocaine" the statute imposes no mandatory minimum and the Guidelines sentencing range under the applicable criminal history category of IV--before any reductions--is 63 to 78 months. If the substance is classified as "cocaine base" the statute imposes a mandatory minimum of ten years and the Guidelines range is 210 to 262 months.1
17
A penal statute is not void for vagueness if it "define[s] the criminal 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) (citations omitted); accord United States v. McElroy, 910 F.2d 1016, 1021 (2d Cir.1990). "[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972) (footnotes omitted); see also Kolender, 461 U.S. at 358, 103 S.Ct. at 1858.
18
Vagueness challenges to statutes that do not involve First Amendment interests are examined in light of the facts of the case at hand. Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988); United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). Although the district court recognized this principle it ruled that the statutory and Guidelines provisions are unconstitutionally vague both on their face and as applied. Because this challenge does not implicate First Amendment freedoms the district court's conclusion that the provisions are facially invalid was erroneous and must be reversed.
19
We turn to the question whether the enhanced penalty provisions are void for vagueness as applied to the facts of this case. We are called on to decide whether a substance that has been identified as "cocaine base" by chemists but that may not be pure enough to be used as "crack" falls within the meaning of "cocaine base" under 21 U.S.C. § 841 and Guidelines § 2D1.1. We believe that it does.
20
"[W]here Congress has used technical words or terms of art, 'it [is] proper to explain them by reference to the art or science to which they [are] appropriate.' " Corning Glass Works v. Brennan, 417 U.S. 188, 201, 94 S.Ct. 2223, 2231, 41 L.Ed.2d 1 (1974) (citations omitted); see also McDermott Int'l v. Wilander, --- U.S. ----, 111 S.Ct. 807, 811, 112 L.Ed.2d 866 (1991) (absent contrary congressional indication when statute contains a term of art, court assumes Congress intended the term to have its established meaning).
21
"Cocaine base" clearly is a scientific term. The court had before it the transcript of the testimony of Dr. George Robert Schwartz, an expert chemist who testified at a sentencing proceeding in another case. See generally United States v. Turner, 928 F.2d 956 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991). Dr. Schwartz stated that the meaning of the base form of cocaine is undisputed in the scientific community. He defined the term as "a substance which when combined with an acid produces a salt." According to Dr. Schwartz, the chemical formula for cocaine base is C sub17 H sub21 NO sub4 ; the formula for cocaine hydrochloride--a chemical term for cocaine--is C sub17 H sub21 NO sub4 HCl. He explained that the two forms have different solubility levels, different melting points and different molecular weights. Dr. Schwartz concluded that "just about any chemical laboratory would be able to distinguish the difference between cocaine base and cocaine salt or other forms."Therefore, according to expert testimony, "cocaine base" has a precise definition in the scientific community. The differences between cocaine base and cocaine are well enough defined to prevent arbitrary enforcement of the enhanced penalty provisions.
22
We decline to equate cocaine base with "crack" cocaine. It is apparent that Congress in imposing the enhanced penalties was concerned with the scourge of "crack." While we believe that Congress contemplated that "cocaine base" would include cocaine in the form commonly referred to as "crack" or "rock" cocaine, Congress neither limited the term to that form in the plain language of the statute nor demonstrated an intent to do so in the statute's legislative history. Congress used the chemical term "cocaine base" without explanation or limitation.
23
The First Circuit has recently accepted an expert chemist's determination that a substance was cocaine base on facts similar to those before us. In United States v. Lopez-Gil, 965 F.2d 1124, 1135 (1st Cir.1992) (per curiam), an expert chemist determined, after performing a chemical analysis, that a controlled substance was cocaine base. The expert chemist also testified, however, that the substance was not "crack." The district court sentenced defendant using the enhanced penalty provisions applicable to violations involving cocaine base. On appeal the First Circuit observed that
24
[d]istrict judges are forced to rely on the expert testimony of chemists who specialize in drug analysis in order to determine the identity of a substance.
25
In this instance, Chemist Vallejo clearly testified that although the substance was not crack, it was indeed cocaine base. This convincing testimony formed the basis for the district court's sentence.
26
Id. at 1135. The court of appeals then remanded the case to the district court for a specific factual finding concerning the substance at issue.
27
The Ninth Circuit, by contrast, has rejected a chemical definition of "cocaine base." Shaw, 936 F.2d at 416. The Ninth Circuit in Shaw rested its decision on a single reference to "crack" in a commentary to Guidelines § 2D1.1, comments in the Congressional Record and definitions from the New Dictionary of American Slang to reach the conclusion that Congress intended "cocaine base" to mean "crack." 936 F.2d at 415-16. We are not persuaded by this analysis. In Guidelines § 2D1.1 the only reference to "crack" is found in a drug equivalency table for the purpose of converting different types of controlled substances into a marihuana equivalent. That table provides: "1 gm of Cocaine Base ("Crack") = 20 kg of marihuana." Guidelines § 2D1.1, Application Note 10. We do not believe that a parenthetical phrase in a drug equivalency table in an application note to a Guideline is enough to narrow the meaning of the chemical term selected by Congress. Nothing in the legislative history directly supports the Ninth Circuit's conclusion that Congress did not intend a chemical definition of "cocaine base."
28
The Shaw Court also gleaned a definition of "cocaine base" from definitions of "cocaine freebase" that arguably refer to "crack." Congress, however, did not use the term "cocaine freebase" in the statute but instead selected the term "cocaine base." As the Ninth Circuit observed:
29
The Senate and the House each had a version of a bill to amend 21 U.S.C. § 841(b). The House version provided tougher penalties for "cocaine freebase," while the Senate version provided penalties for "cocaine base." Congress ultimately enacted the Senate version by incorporating it into H.R. 5484, which became the Anti-Drug Abuse Act of 1986.
30
Shaw, 936 F.2d at 415 (citations omitted). The definition of "cocaine freebase"--a term found in a version of the proposed bill that was considered by Congress and rejected in the bill's final form--sheds little light on the meaning of a different term selected by Congress. Moreover, the Shaw Court's definition of "cocaine freebase" relies on a dictionary of questionable force and on a report of the House Committee on the Judiciary that relates not to the amendments at issue but instead to a White House conference on drug abuse advocated by the committee. Id. at 415-16.
31
Ironically the Ninth Circuit stated that there are no congressional statements "indicating that 'cocaine base' refers to cocaine that is a 'base' for chemistry purposes" and concluded that Congress did not intend the term "cocaine base" to be defined "by its testing basic rather than acidic." Id. at 416. We believe that the language of the statute itself speaks to the issue. Congress selected a chemical term, a term whose meaning is undisputed in the scientific community. Although "crack," the most common form of cocaine base, arguably has a meaning discernible by the community, see Thomas, 932 F.2d at 1090 ("[E]ven many children on the street know the difference between powdered cocaine and crack."), Congress did not use the term "crack." Rather, it chose a term of art that should be defined by reference to the scientific community from which it derives. See Corning Glass Works, 417 U.S. at 201, 94 S.Ct. at 2231.
32
Just because other courts of appeals differ in their definitions of a term does not mean that the term is void for vagueness. In this case the district court had before it Dr. Schwartz's testimony that there was agreement in the scientific community as to the definition of "cocaine base." He provided a chemical formula and discussed methods of distinguishing cocaine base from cocaine hydrochloride. Dr. Zedeck also indicated that a properly performed test could differentiate cocaine base from other forms of cocaine; he performed two such tests on the substance at issue.
33
Applying the chemical definition of "cocaine base" to the facts of this case it is clear that the substance was cocaine base. Both the DEA chemist and Dr. Zedeck, Jackson's expert chemist, identified the substance as cocaine base. On the facts of this case--the proper inquiry for a void-for-vagueness challenge not involving the First Amendment--there was no dispute over whether the substance was cocaine base.
34
There was instead a question whether the substance was pure enough to be used as "crack." As we already have discussed, the definition of "cocaine base" is not limited to "crack." Admittedly, the drug's low level of purity is troublesome. Nonetheless Congress did not mention the purity of cocaine base as a factor in the enhanced penalty provisions.
35
Moreover, Jackson cannot complain that he was not on notice that he would be subject to enhanced penalties. See, e.g., Kolender, 461 U.S. at 357, 103 S.Ct. at 1858. Jackson pleaded guilty to possession with intent to distribute cocaine base. At Jackson's plea allocution Judge Lasker confirmed that Jackson was aware that Jackson faced a ten year mandatory minimum prison term. In addition, we have held that the enhanced penalty provisions do not violate due process even if a defendant does not know the specific nature and amount of the controlled substance. See United States v. Collado-Gomez, 834 F.2d 280 (2d Cir.1987) (per curiam), cert. denied sub nom. Quintero-Gonzalez v. United States, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988).
36
Regarding the "more important aspect of the vagueness doctrine[,] ... 'the requirement that a legislature establish minimal guidelines to govern law enforcement,' " Kolender, 461 U.S. at 358, 103 S.Ct. at 1858 (citation omitted), as we have explained we believe that "cocaine base" has a chemical definition that should prevent arbitrary and discriminatory enforcement by courts or prosecutors.
CONCLUSION
37
Expert testimony in this case established that there is a clear definition of "cocaine base" undisputed in the scientific community. It is that meaning that Congress intended section 841(b) to have. That other courts of appeals have interpreted the statute differently does not render it void for vagueness. Applying the scientific meaning of "cocaine base" to the facts of this case, it is clear that Jackson is subject to the enhanced penalty provisions of section 841(b) and Guidelines § 2D1.1 and therefore those provisions as applied are not void for vagueness.
38
Accordingly, we vacate the decision of the district court and remand for resentencing pursuant to the enhanced penalty provisions.
*
Honorable Eugene H. Nickerson, United States District Judge for the Eastern District of New York, sitting by designation
1
We are confused by the district court's calculation of Jackson's sentence for possession with intent to distribute cocaine. The presentence report recommended a reduction of two levels for acceptance of responsibility. The government did not oppose this reduction. The court in calculating the sentencing range for cocaine base had indicated a willingness to reduce the sentence by two levels for a base offense level of 32. When the court determined that Jackson would be sentenced for possession of cocaine it made no reduction for acceptance of responsibility. To our knowledge no one has objected to the court's failure to consider the reduction nor has the issue been raised on appeal
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378 F.3d 1229
Luz M. GONZALEZ-JIMINEZ DE RUIZ, on her behalf and on behalf of her minor children, Luis Fernando Ruiz Gonzalez, Jose Daved Ruiz Gonzalez, Melanie Ruiz Gonzalez, and Araika Ruiz Gonzalez, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 03-10274.
United States Court of Appeals, Eleventh Circuit.
July 28, 2004.
Manuel San Juan, San Juan, PR, for Plaintiff-Appellant.
Peter J. Sholl, Tampa, FL, for Defendant-Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before EDMONDSON, Chief Judge, and TJOFLAT and COX, Circuit Judges.
PER CURIAM:
1
Appellant Luz Gonzalez claims that, under Puerto Rican law, she was the concubine of Jose Miguel Ruiz, who died of cancer in federal prison. She sought to bring various claims stemming from his death against the United States on behalf of herself and her children. We affirm the district court's dismissal of her suit because she lacks standing to sue, and the dismissal of her children's suit for failure to state a claim.
2
First, Gonzalez lacks standing to sue for any wrongs inflicted on Ruiz, or for any emotional distress she may have suffered as a result thereof. She contends that she may bring these claims because she was either his common-law wife or his "concubine more uxorio," a status apparently recognized under Puerto Rican law.1 She has provided us with no authority, however, to suggest that Puerto Rico recognizes common law marriage. Moreover, while she may have held concubine more uxorio status, she has provided us with no authority demonstrating that concubines have the right under Puerto Rican law to sue for wrongful death. Consequently, Gonzalez may not bring any of these causes of action on her own behalf; the only viable claims to consider on their merits are those of her children.
3
The district court ruled that Gonzalez's children failed to state a claim for "loss of associational benefits." Though their brief asserts that they are appealing this decision, it failed to provide any discussion or argumentation concerning it at all. Consequently, we deem this point waived.
4
The district court also held that the Bureau of Prison's conduct for which Gonzalez's children brought suit was, as a matter of law, insufficiently outrageous to support a claim for intentional infliction of emotional distress. The magistrate judge — whose report and recommendation the district court adopted in its entirety — stated:
5
Plaintiffs' factual allegations establish, at most, a series of BOP [United States Bureau of Prisons] deceptions regarding Mr. Ruiz's terminal medical condition, the BOP's failure to provide Mr. Ruiz's family with reasonable access to Mr. Ruiz during his illness, the BOP's failure to inform Plaintiffs of Mr. Ruiz's death, the BOP's conduct in exposing Plaintiffs to Mr. Ruiz's pain and suffering due to substandard medical care, and the BOP's delay in transporting Mr. Ruiz's remains. None of this conduct can be characterized as "atrocious" or "utterly intolerable in a civilized community."
6
Gonzalez-Jimenez de Ruiz v. United States, 231 F.Supp.2d 1187, 1199-1200 (M.D.Fla.2002) (footnote omitted). The magistrate judge stated, "[The fact that] the BOP restricted access to Mr. Ruiz by visitors is neither shocking nor unexpected, as federal inmates are typically limited in receiving visitors." Id. at 1200. Moreover, "[w]hile substandard medical care is regrettable and not to be tolerated — even in a federal correctional facility — the rendering of substandard medical care does not constitute the intentional infliction of emotional distress." Id. She concluded, "mere deception, while unfortunate, does not amount to intentional infliction of emotional distress." Id. For the reasons articulated in the magistrate judge's order, we affirm.2
7
The district court finally held that Gonzalez's children had failed to allege sufficient "physical injury as a result of the emotional trauma" necessary under Florida law to support a claim for negligent infliction of emotional distress. Holt v. Rowell, 798 So.2d 767, 770 n. 1 (Fla.2d Dist.Ct.App.2001), overruled in part on other grounds, 850 So.2d 474 (Fla.2003) (holding that a client may sue an attorney for psychological trauma resulting from the client's continued imprisonment due to the attorney's failure to deliver to the court a document definitively establishing his innocence). Having reviewed the children's brief, we are forced to agree. The facts alleged do not come anywhere close to constituting significant physical injury. While the children claim they suffered mental anguish from the BOP's actions, they failed to establish any major adverse physical impact. Consequently, their claim for negligent infliction of emotional distress fails.
8
For these reasons, the district court's opinion, in its entirety, is
9
AFFIRMED.
Notes:
1
Because the United States is the defendant, this suit is being brought under the Federal Tort Claims Act, 28 U.S.C. § 1346, which requires that the "whole law of the State where the act or omission occurred[,]" including its choice of law rules, be appliedRichards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 592, 7 L.Ed.2d 492 (1962). The district court correctly found that because the wrongful acts alleged occurred in Florida, Florida law — including Florida choice of law rules — governs this action.
Under Florida's choice of law provisions, Florida law governs all substantive issues, including the question of whether an individual has standing and capacity to sue. Under Florida substantive law, a spouse has capacity to sue for damages to a decedent. Florida law further provides that, even though it does not provide for the creation of common law marriages, it will recognize them if they are "validly created in a jurisdiction recognizing such marriages." Am. Airlines, Inc. v. Mejia, 766 So.2d 305, 307 n. 5 (Fla. 4th Dist.Ct.App.2000). Thus, Florida law directs us to consider Puerto Rican law to see whether Gonzalez qualifies as Ruiz's common law spouse.
2
Furthermore, if the plaintiffs' allegations of deceit are essential to their intentional infliction of emotional distress claim, we lack jurisdiction under the FTCA to entertain that claimSee 28 U.S.C. § 2680(h); Metz v. United States, 788 F.2d 1528, 1534-35 (11th Cir.1986). If, however, the plaintiffs' allegations of deceit are not essential to this claim, then as discussed above, their remaining allegations are insufficient to establish a prima facie case for intentional infliction of emotional distress.
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32 F.3d 369
UNITED STATES of America, Appellee,v.James Fremont FARMER, Sr., Appellant.
No. 93-2652.
United States Court of Appeals,Eighth Circuit.
Submitted May 24, 1994.Decided Aug. 12, 1994.Rehearing and Suggestion for Rehearing En Banc Denied Sept. 21, 1994.
Lee C. "Kit" McCahren, Pierre, SD, for appellant.
David L. Zuercher, Asst. U.S. Atty., Pierre, SD, for appellee.
Before McMILLIAN, MAGILL and BEAM, Circuit Judges.
BEAM, Circuit Judge.
1
James Fremont Farmer, Sr., appeals his conviction and 180-month sentence for assault with a dangerous weapon, aggravated sexual abuse and kidnapping in violation of 18 U.S.C. Secs. 113(c), 1153, 2241(a) and 1201. He primarily challenges the district court's1 partial closure of the jury trial during a portion of the victim's testimony. We affirm.
I. BACKGROUND
2
According to the evidence at trial, the seventeen-year-old victim had been drinking at various parties all night long and she could remember very little about the evening in question. Sheila Good Shield, a twenty-six-year-old woman who was at the last party, intervened when the victim was being "pushed around" by persons at the gathering and helped the victim walk to town.
3
Good Shield testified that Farmer pulled up in his car and asked if she needed help in taking the victim home. Good Shield and the victim entered the car. When Farmer did not go straight to the victim's home, Good Shield became frightened and exited the car, leaving the victim with Farmer.
4
After Good Shield's testimony at the trial, Farmer tendered a plea of guilty, stating that he had been too drunk to remember the incident and after viewing evidentiary reports and hearing Good Shield he had become convinced that he must have committed the crimes. But, because Farmer claimed that he could not remember committing the crimes, the court went forward with the trial and had the victim testify.
5
The victim proceeded to tell about her recollection of the assault and her conversations with Farmer. When court recessed for the day, the victim had not completed her testimony. The court asked Farmer to consider his tendered plea overnight, gave an instruction to spectators in the courtroom to avoid any discussion of the case with members of the jury and adjourned court.
6
The next day Farmer advised the court that he would like to have the victim finish her testimony. Because she did not arrive in a timely fashion, another witness was called. When the victim arrived, the following exchange took place:
7
MR. SCHIEFFER: Your Honor, the United States would move at this time that during the testimony of the victim that the courtroom be cleared except for her immediate family and the treating psychologist.
8
THE COURT: Okay. The defendant may be heard on the motion.
9
MR. McCAHREN: We object to that, Your Honor. There is no authority for that. This Court can't order that. And it would violate the defendant's right to a fair trial and confrontation clause to the United States Constitution.
10
THE COURT: Okay. The objection--the motion will be granted. And all spectators other than the members of [the victim's] family will be excused from the courtroom during the balance of her testimony.
11
MR. McCAHREN: Your Honor, I'm going to further my objection to that. You're allowing the most critical witness's support group to remain in here and you're ordering the defendant's family to exit. And I don't know what authority the government has for that motion, what authority the Court has to grant that motion other than just the Court's inherent powers from the bench.
12
THE COURT: The motion has been granted. The Marshall will go ahead and ask persons other than the category--other than the category that I allowed to remain to please depart from the courtroom.
13
MR. McCAHREN: As long as my record is clear, I don't have any problem.
14
THE COURT: Very well.
15
Trial Transcript, Vol. II at 183-84.
16
The jury was then brought in and the victim completed her testimony. Farmer moved for acquittal, the court denied the motion and the jury found Farmer guilty on all three counts.
II. DISCUSSION
A. Partial Closure
17
A public trial, protected by the Sixth Amendment rights of the accused and the implicit First Amendment rights of the press and public, allows the public to see for itself that the accused is dealt with fairly and not unjustly condemned and ensures that judges, prosecutors and witnesses carry out their respective duties with a keen sense of the importance of their functions. Woods v. Kuhlmann, 977 F.2d 74, 76 (2nd Cir.1992) (citing Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984)). In Waller, the Supreme Court reaffirmed that a party seeking to close a hearing "must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." 467 U.S. at 48, 104 S.Ct. at 2216.
18
In Woods, the trial court ordered all members of the defendant's family from the courtroom after the prosecutor informed the judge that a witness was terrified of retaliation from the defendant's family. 977 F.2d at 75. The Second Circuit joined the Ninth, Tenth, and Eleventh Circuits in concluding that "when a trial judge orders a partial, as opposed to a total, closure of a court proceeding at the request of one party, a 'substantial reason' rather than Waller's 'overriding interest' will justify the closure," because a partial closure does not "implicate the same secrecy and fairness concerns that a total closure does." Id. at 76 (see cases cited therein). Noting that the trial judge had asked the witness whether it was true she was reluctant to testify because she feared for her safety and that the judge had an in-chambers conference with the attorneys, the court concluded the record was sufficient to support the partial, temporary closure of the trial. Id. at 77-78.
19
Similarly, in United States v. Galloway, the Tenth Circuit acknowledged that a "partial closure need only be supported by a 'substantial' interest, rather than a 'compelling' one." 937 F.2d 542, 546 (10th Cir.1991). The court nonetheless held that the trial court must make sufficient findings to allow the reviewing court to determine whether the partial closure was proper. Id. The court determined that the appropriate factors to weigh include the age of an alleged victim, the nature of an alleged offense and the potential for harm to the victim. Id. Noting that the trial court had failed to make such findings on the record, the court declined to reverse the defendant's conviction, but instead remanded the case for further findings. Id. at 546-47.
20
Here, however, we see no need for a remand even though the district court made no explicit findings. In this circuit, specific findings by the district court are not necessary if we can glean sufficient support for a partial temporary closure from the record. See United States v. Lucas, 932 F.2d 1210, 1216-17 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991). In Lucas, we noted that our review of the issue of right to a public trial is for abuse of discretion. Id. at 1217. Although Lucas dealt with a screen that shielded the witness from spectators, Farmer presents the same legal issue. In Lucas, we said, "[c]onsidering the record before the District Court, we find no abuse of discretion in [the] conclusion that a screen should be used...." Id. at 1217.
21
We have reviewed the record in this case and, likewise, find no abuse of discretion by the district court. There is evidence in the record showing that Farmer had threatened the victim and that she feared retaliation by Farmer and his family. Trial Transcript, Vol. I at 59-60, 119, 147. Indeed, evidence of the victim's age, the brutal nature of the offense and the victim's well-reasoned fear of Farmer and his family was more than enough to justify the decision.
B. Acceptance of Responsibility
22
The other issue raised by Farmer involves a requested reduction in sentence for acceptance of responsibility under USSG Sec. 3E1.1. We review the district court's determination to deny such reduction under a clearly erroneous standard. The burden of proof on the issue of acceptance of responsibility was upon Farmer. United States v. Lublin, 981 F.2d 367, 370 (8th Cir.1992). Given the fact that Farmer admitted, for sentencing purposes, a physical assault on the victim but steadfastly denied the sexual attack, we see no clear error. See United States v. McQuay, 7 F.3d 800, 801 (8th Cir.1993) (court gives great deference to district court's refusal to grant reduction).
III. CONCLUSION
23
The district court did not abuse its discretion in the partial, temporary closure of the public trial and did not clearly err in denying a reduction in sentence under USSG Sec. 3E1.1. Accordingly, we affirm.
24
McMILLIAN, Circuit Judge, dissenting.
25
I respectfully dissent. The majority opinion ignores the legal principles that have developed to ensure that a defendant enjoys his or her Sixth Amendment right to a public trial. The Supreme Court has emphasized the need for specific findings to help determine whether or not a closure order is justified:
26
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
27
Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2214, 81 L.Ed.2d 31 (1984) (Waller ). See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (trial judge closed voir dire for a rape case, intending to protect privacy interests of jurors who might have highly personal answers; Supreme Court indicated that such privacy interests might be sufficient to warrant closure of voir dire, but found that the judge had not made any specific findings to show that those interests would in fact be threatened by an open hearing).
28
Although Waller involved the total closure of a trial, the requirement that the trial court make sufficient findings to allow the reviewing court to determine whether or not a closure was justified is equally applicable in the case of a partial closure. See United States v. Galloway, 937 F.2d 542, 546 (10th Cir.1991) (Galloway ) (district court must articulate specific findings to support its decision to partially close a trial during testimony).
29
The majority opinion in the present case upholds the partial closure order based on the victim's fear of the defendant and his family, the victim's young age, and the brutal nature of the alleged offense. See Op. at 371. "Although the district court undoubtedly considered these factors in deciding to partially close the courtroom, the court failed to make findings on the record in support of its order as required by the Supreme Court." Galloway, 937 F.2d at 546. We cannot determine from this record why the district court decided to partially close this trial. The motion for partial closure did not specify any reasons for partial closure. In the absence of specific findings, the majority opinion in the present case upholds the district court's closure order based only upon a theoretical and abstract potential for harm to the victim.
30
In upholding the district court's partial closure order in the absence of any factual findings, the majority opinion cites to United States v. Lucas, which involved the protection of an undercover officer's identity by allowing her to testify behind a screen such that the judge, parties, and jury could see her, but she could not be seen by spectators. Our treatment of the district court's order in Lucas in no way explains why, in the present case, the majority opinion requires no specific findings to justify the ousting of defendant's family and friends, the press, and public spectators, from an otherwise public trial. Contrary to the majority opinion's intimation that the district court in Lucas made no findings regarding the need to utilize a screen, the district court, after hearing testimony and extensive argument by counsel on the matter, specifically found:
31
that [the undercover officer] was, at the time of trial, involved in unrelated narcotics investigations and that if her identity was revealed her life would be in danger. It also found that people "engaged in unlawful activity in the Kansas City area" might attempt to use the trial to identify [the undercover officer] (citations to transcript omitted), who was one of a very small number of [such] undercover officers in the Kansas City Police force. Consequently, it concluded that the government had established two "overriding interest[s]" likely to be prejudiced if [the undercover officer's] identity was not concealed: the ability of the police to conduct effectively law enforcement operations, and the physical welfare of the officers involved. It then considered the use of a disguise, the use of a screen and full closure of the courtroom as means of concealing her identity. It concluded that, in order most effectively to protect [the undercover officer] as well as the right to a public trial and the right to confrontation, a screen should be used during her testimony in such a way as to permit spectators to hear but not see her, while not interfering with the ability of the defendants, the court, or the jury to see her when she testified.
32
Lucas, 932 F.2d at 1217.
33
The district court in Lucas heard testimony and arguments by counsel, made specific findings, and then balanced the rights of the defendant to a public trial against the protection of the identity of the witness in order to determine whether a partial closure of the courtroom was constitutionally justified. In compliance with Waller, the district court in Lucas made specific findings, identified the interests of the party seeking closure, and considered lesser alternatives. I fail to see how the majority opinion can analogize Lucas to justify the result it reaches in the present case.1
34
Accordingly, I would remand the case to the district court with directions to supplement the record with the facts and reasoning upon which the partial closure of the courtroom during the victim's testimony was based.
1
The Honorable John B. Jones, Chief United States District Judge for the District of South Dakota
1
By contrast to Lucas, the partial closure in the present case is particularly odd given that the victim's identity had already been disclosed, and the victim had already testified in part in open court, before the defendant's family and friends. Furthermore, the majority opinion presents a chimerical analogy: "[a]lthough Lucas dealt with a screen that shielded the witness from spectators, Farmer presents the same legal issue." Op. at 371. The use of a screen to protect a witness' identity does not involve the same secretiveness and censorship concerns and fairness interests as the outright removal of all spectators from a courtroom. In Lucas, the trial court allowed spectators "to hear but not see" the witness. Lucas, 932 F.2d at 1217
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861 So.2d 1244 (2003)
Leo Robert SCHOFIELD, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 2D03-2406.
District Court of Appeal of Florida, Second District.
December 12, 2003.
*1245 WHATLEY, Judge.
Leo Robert Schofield appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for further proceedings.
In 1988 Schofield was convicted of first-degree murder and sentenced to life in prison for the murder of his wife, Michelle. He filed a rule 3.853 motion seeking DNA testing of fingernail scrapings taken from his wife's body as well as hair found on her body and in her car. He alleged that the evidence was collected after the murder and that DNA testing has not been conducted on the evidence. Maintaining his innocence, he claimed that identity was a genuinely disputed issue at trial and that DNA testing of the evidence would exonerate him.
The trial court, finding that Schofield's motion was facially sufficient, ordered the State to show cause why an evidentiary hearing should not be granted. The State responded that DNA testing of the fingernail scrapings and hair would not exonerate Schofield and that DNA testing of the fingernail scrapings would be inconclusive due to the nature of the evidence. The trial court agreed with the State's response and incorporated it by reference in its denial of Schofield's motion.
We believe that Schofield alleged a facially sufficient motion for DNA testing under rule 3.853(b). Specifically, Schofield sufficiently alleged that he would be exonerated by DNA testing of evidence as required by rule 3.853(b)(3). In his motion, Schofield alleged that he was convicted based on circumstantial evidence alone. He further claimed that defensive wounds on Michelle's body indicated that she had been involved in a physical struggle. Schofield argued that DNA testing of the hair and fingernail scrapings would show that a different person was in Michelle's car and involved in the struggle with her. If DNA testing confirms Schofield's allegations, the results would create a reasonable probability that Schofield would be acquitted because reasonable doubt would exist that Schofield committed the murder. See Riley v. State, 851 So.2d 811, 812 (Fla. 2d DCA 2003); Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002).
The trial court relied on the State's assertion that DNA testing would not exonerate Schofield, but it failed to attach any portions of the trial record or conduct an evidentiary hearing to determine this issue. Therefore, this court can rely only on *1246 the allegations made by Schofield and the State. See Riley, 851 So.2d at 812-13. Neither this court nor the trial court can consider the discrepancies between Schofield's and the State's allegations without considering the trial transcript or conducting an evidentiary hearing. See id. at 813. Accordingly, we reverse and remand for further proceedings. On remand, if the trial court determines that the trial transcript or other record documents conclusively demonstrate that identity is not an issue or that Schofield would not be exonerated, the documents must be included in the record for appellate review. See id. at 813. If the record does not refute Schofield's claim, the trial court must conduct an evidentiary hearing. See id. at 813.
We also note that the trial court erred in relying on the State's bare assertion that DNA testing of the evidence would be inconclusive. The State is not qualified to make such a factual determination. In addition, rule 3.853 is silent as to whether a claim for DNA testing may be denied if DNA testing of the evidence would be inconclusive. Rule 3.853 does not require a movant to allege that previously untested evidence would be conclusive, and it does not provide conclusiveness as a factor to be considered in determining whether a movant is entitled to DNA testing. Therefore, we conclude that the trial court should not have denied the motion on such a basis.
Reversed and remanded.
COVINGTON and VILLANTI, JJ., Concur.
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156 So.2d 359 (1963)
SOUTHERN ELECTRIC GENERATING COMPANY
v.
C. B. HOWARD et al.
5 Div. 734.
Supreme Court of Alabama.
September 5, 1963.
*360 Sam W. Oliver, Dadeville, Martin, Vogtle, Balch & Bingham and Robt. H. Owen, Birmingham, for appellant.
Wilbanks & Wilbanks, and John F. Dillon, IV, Alexander City, for appellees.
GOODWYN, Justice.
This is a condemnation proceeding initiated by appellant (Southern Electric Generating Company) in the probate court of Tallapoosa County against appellees (C. B. and Bessie Howard) to condemn a right of way across appellees' lands for the purpose of erecting "towers, poles and wire lines, for the transmission, distribution, supply and sale of electric power to the public." From a final order of condemnation rendered in the probate court, appellant appealed to the circuit court of Tallapoosa County where a jury fixed the damages and compensation at $7,731.25. Judgment was in accord with the jury verdict. Appellant's motion for a new trial being overruled, it brought this appeal from the judgment rendered on the jury verdict and also from the judgment overruling its motion for a new trial.
Although considerable testimony was taken on the question of appellant's right to condemn, there is no cross-assignment of *361 error challenging the trial court's conclusion that it had such right.
The condemned right of way is 200 feet wide and runs 1943 feet across appellees' 76-acre farm on which their home is located. Within the right of way are approximately 6.85 acres of land. The transmission line carries 230,000 volts. It appears that appellees' home, a frame dwelling containing 972 square feet of living area and 406 square feet of porches, is located approximately 92 feet from the transmission line.
As is usual in cases of this kind, the witnesses' estimates of compensation and damages varied considerably. One of appellant's professional, or expert, appraisers estimated the value of the land, including the dwelling, at $7,000 before the taking and $5,500 after the taking, for a before and after difference of $1500. Appellant's other appraiser estimated the value before the taking to be $7,300, the value afterwards at $6,950, with a difference of $350 based on the value of the fee of the 6.85 acres taken. This witness valued the property rights in the right of way retained by appellees at 50% of the fee value, resulting in a difference of $175 in the before and after values. Appellees had several witnesses to testify, none of whom was a professional appraiser. Their estimates of compensation and damages ranged from $2,000 to $10,000.
At appellant's request, the jury was permitted to view the land.
Appellant charges error in the following respects:
I. In refusing to give its requested charges 3, 7 and 11.
II. In overruling its objections to questions addressed to appellees' witnesses Heard and Whatley.
III. In refusing to grant its motion to exclude all the testimony of appellees' witness Pearson.
IV. In denying it a new trial on the ground that the jury's verdict was a quotient verdict.
V. In denying it a new trial because of excessiveness of the verdict.
Our conclusion is that none of these constitutes error to reverse.
I.
Refused charge 3 contains two principles, both of which appear to have been substantially and fairly covered by appellant's given charges 2 and 1, respectively. There is no need to determine whether this charge was properly refused for other reasons, including its coverage by the oral charge, as argued by appellees.
Although refused charge 7 is not couched in the same language as the portion of the oral charge dealing with the same principle, we are persuaded it was substantially and fairly covered by the oral charge and also by charges 14 and 15 given at appellant's request.
Refused charge 11 is as follows:
"The court charges you that the landowners are not entitled to recover any damages on account of any fears prospective purchasers of remaining property adjacent to the right of way may have as to possible, fanciful or imaginary dangers resulting from the use of the transmission line on the property sought to be condemned."
Appellant recognizes that a portion of the oral charge is similar to refused charge 11 but contends that the oral charge does not substantially and fairly cover the rule stated in charge 11. We are unable to agree. Our view is that the following portion of the oral charge sufficiently covered the rule stated in charge 11, viz:
"* * * Fear as has been pointed out during the trial of the case, as a correct proposition of law, fear is not an element of the damages here. Not when fears are conjectural or speculative. There has been no showing of any danger to the property that is being taken here or to the remainder. So *362 fear, gentlemen, is not to be considered as one of the elements of damages in this case. Neither are imaginary or supposed damages. They must be proven to you. And there again only you can say what has been proven. * * * And the Court will hasten on to add that any time that a witness has said that he has based his opinion of a value on some element that is not a proper element of damage such as fear then you must take that into consideration, too, gentlemen, in determining what weight will be given the opinion of that witness. You are the weighers of the facts, gentlemen. You and only you can decide what has been proven and what has not been proven. * * *"
No exception was taken to any part of the oral charge.
Bearing on the refusal of these charges is the following portion of Code 1940, Tit. 7, § 273, viz:
"* * * The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge or in charges given at the request of parties. * * *"
II.
Appellant charges error in overruling its objection to the following question asked appellees' witness Heard on direct examination, viz:
"What effect would, in your opinion, a 230,000 volt electrical transmission line have on radio and TV reception in a house 92 feet from that line?"
The record discloses that the first time this question was asked, it was not answered and, in fact, was withdrawn. Shortly thereafter, when the question was asked again, appellant's motion to exclude the witness' answer was granted. We do not find where this particular question was again asked and answered.
There is no assignment of error challenging any other ruling with respect to this witness' testimony.
Error also is charged in overruling appellant's objection to the following question asked appellees' witness Whatley on direct examination, and in permitting the witness to answer the question, viz:
"Do you have an opinion, Mr. Whatley, as to the effect, if any, of a 230,000 volt line on the radio and television reception in a house located in approximately 92 feet from the line itself?"
The witness, in answer to the question, replied: "Yes, sir." As we see it, whether the witness had an opinion as to the effect of the transmission line, without more, was not reversible error. It is well-established that the competency of a witness to testify as an expert is a matter addressed to the sound discretion of the trial court, and its decision on the evidence going to the witness' competency will not be disturbed on appeal except for palpable abuse. Russell v. Relax-A-Cizor, Sales, Inc., 274 Ala. 244, 250, 147 So.2d 279; Baggett v. Allen, 273 Ala. 164, 166, 137 So.2d 37; Hewett v. McGaster, 272 Ala. 498, 502, 133 So.2d 189; Southern Metal Treating Co. v. Goodner, 271 Ala. 510, 521, 125 So.2d 268; State v. Johnson, 268 Ala. 11,13, 104 So.2d 915. We cannot say there was palpable abuse in permitting the witness to answer the challenged question. In this connection, it is to be noted that the evidence discloses that the witness was the chief engineer of one radio station, technical director of two other radio stations, had been a student at the Army Signal School for about four months and an instructor at a Branch Signal School for about sixteen months, and had had "occasion to study the effect of electrical transmission lines on radio and TV reception." Also, on further questioning of the witness as to what his opinion was, appellant's objection was sustained.
There is no assignment of error challenging any other ruling with respect to this witness' testimony.
*363 III.
Error is charged in overruling appellant's motion to exclude the testimony of appellee's witness Pearson, except that part relating to the land being worth $50 an acre. The basis of the motion was that this witness' testimony "included improper elements of damages." There is no dispute that the element of fear, which the court charged out, was an element used by this witness in arriving at his opinion of the damages to the property. However, it also seems clear that this was "one of the elements on which he based his opinion." He testified that he was familiar with the land; that fear had "something to do with" the value in arriving at the damages and that he took into consideration "all that he knew about" it. The fact that the witness, in forming his opinion, considered an irrelevant matter, among other considerations, went to the credibility of his testimony, and not to its admissibility. Southern Electric Generating Co. v. Lance, 269 Ala. 25, 30-31, 110 So.2d 627; Blount County v. Campbell, 268 Ala. 548, 554, 109 So.2d 678; Alabama Power Co. v. Berry, 222 Ala. 20, 24, 130 So. 541. As said in Blount County v. Campbell supra, viz:
"The appellant contends that the trial court committed reversible error in overruling appellant's motion to exclude the testimony of Charles E. Tavell. That witness testified with reference to value of the property that, `I arrived at it by using an estimated basis that the State has appraised people's land adjoining.' The appellant contends that all of the testimony of this witness should have been excluded because his opinion was based on irrelevant material. The record shows that this witness had previously testified to a knowledge of the property which would give him a basis for forming a correct opinion of the value of the property. The fact that, in forming his opinion, the witness considered some irrelevant matters, goes to the credibility of his testimony, and not to its admissibility. * * *"
IV.
Appellant, in support of its insistence that the verdict of the jury was "a quotient verdict," starts with the premise that the damages and compensation in the amount of $7,731.25, being an unusual amount and not based on the testimony of any witness, necessarily must have been arrived at in a manner resulting in a quotient verdict. It is then assumed that three of the jurors favored an award of $925, arrived at by taking an average of $350 and $1500 damages testified to by appellant's two appraisers (it is to be noted, however, that the difference in value before and after the taking, according to one of the witnesses, was $175 instead of $350), and that nine jurors favored $10,000, which was the highest estimate of damages given by any of the witnesses for appellees. By adding the sums of 3× $925 and 9× $10,000, a total of $92,775 is reached. Dividing this by 12 results in $7,731.25, the amount of the jury's award. The argument is that this shows the jurors must have agreed in advance to approve as their verdict the quotient of the several jurors' figures, particularly since they included even the small amount of 25 in their verdict.
The rule is that, in order to render a verdict objectionable on the ground it was a quotient verdict, the jury must have agreed in advance to abide by the result of the calculation. Fleming v. Knowles, 272 Ala. 271, 277-278, 130 So.2d 326; Sanders v. State, 243 Ala. 691, 699, 700, 11 So.2d 740; Harris v. State, 241 Ala. 240, 243, 2 So.2d 431; Birmingham Ry. Light & Power Co. v. Moore, 148 Ala. 115, 130, 42 So. 1024. The burden of proof on such issue is thus stated in Mobile & O. R. Co. v. Watson, 221 Ala. 585, 586, 130 So. 199, viz:
"The rule has long prevailed in Alabama that, when there are shown figures used by a jury in its deliberations from which a fair inference may be *364 drawn that the verdict was a quotient, the court will so hold, and that it was the result of a previous agreement unless the contrary is shown. * * *
"Also that evidence of jurors is admissible to sustain their verdict, * * but jurors cannot testify to facts which tend to impeach it. * * *"
In the case before us, there was no evidence offered in support of the motion for a new trial from which a fair inference could be drawn that there was a quotient verdict. In fact, there was no evidence offered at all. As we see it, appellant's assumption as to how the jury arrived at its award is based on surmise and speculation and cannot serve as a basis for holding there was a quotient verdict.
In every case involving a quotient verdict which has come to our attention, there has been offered in evidence, in support of the motion for a new trial, some memorandum or paper (usually found in the jury room at the conclusion of the jury's deliberations or among the papers which were in the jury's possession during its deliberations) disclosing figures used by the jury in its deliberations. We have held that when such a memorandum or paper is found, it is prima facie evidence that the verdict was a quotient verdict, that is, "the result of a previous agreement unless the contrary is shown." See: Mobile & O. R. Co. v. Watson, supra. There being no such prima facie evidence in the case before us, there was no occasion for appellees to offer evidence that the verdict was not "the result of a previous agreement."
V.
We find no basis for holding that the trial court erred in denying appellant's motion for a new trial on the ground that the jury's verdict was excessive. As already noted, the witnesses' estimates of compensation and damages varied from a low of $175 to a high of $10,000. Our view is that, under the evidence, including the jury's view of the land, the amount of the award was peculiarly the prerogative of the jury to determine. We find no basis for saying that the award was due to bias, passion, prejudice, corruption, or other improper motive on the part of the jury. The trial court's conclusion that the award was not excessive lends strength to our holding. For statement of rules governing our consideration of questions of excessiveness of verdicts, see: Vest v. Gay, Ala., 154 So.2d 297, 298.
The judgments appealed from are due to be affirmed.
Judgments affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.
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IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 19, 2016 Session
BILLY COFFEY, ET AL. v. HAMBLEN COUNTY, ET AL.
Appeal from the Circuit Court for Hamblen County
No. 15CV139 Douglas T. Jenkins, Chancellor
No. E2016-01116-COA-R3-CV-FILED-DECEMBER 28, 2016
D. MICHAEL SWINEY, C.J., concurring and dissenting.
I fully concur in the majority’s opinion with the exception of the majority’s
determination that “we simply cannot agree with the trial court’s classification of the
claim at issue as a consumer claim when Plaintiffs filed suit pursuant to a contract
between the County and EMS for the failure to provide services as promised in the
service agreement.” I instead believe that the language of the AHLA, as set out in the
majority’s opinion and applicable to this issue, is broad enough to cover an alleged
failure to provide services as promised in the service agreement. Specifically, I believe
the definition in the AHLA, as quoted by the majority, defining a Consumer Case to be “a
dispute between a Health Care Entity and a Consumer concerning: (a) the delivery of
care or treatment by the Health Care Entity. . .” is broad enough to cover a failure to
deliver the required care or treatment.
The AHLA itself provides, again as quoted by the majority, that “[t]hese
definitions shall be construed liberally with any doubts as to whether a case is a
Consumer Case to be resolved in favor of providing the protections contained in these
rules to the Consumer.” The majority’s interpretation of the AHLA language at issue is a
reasonable one. However, I believe that my interpretation of the AHLA language at issue
also is a reasonable interpretation. I believe this doubt brings this squarely within the
AHLA requirement that whenever there is any doubt as to whether a case is a Consumer
Case, the AHLA is to be liberally construed to resolve the doubt in favor of providing the
protection contained in the AHLA rules to the Consumer. Construing the language
liberally in favor of the Consumer as to “Consumer Case,” as required by the AHLA
itself, I think “the delivery of care or treatment by the Health Care Entity. . .” is broad
enough to cover an alleged failure to deliver the care or treatment required of the health
care entity. I express no opinion at all as to whether there was any such a failure to
provide any required care or treatment by the health care entity, but address only whether
the definition of “Consumer Case” under the AHLA itself is broad enough to cover an
alleged failure to deliver the required care or treatment.
I agree with all of the majority’s opinion except for this one aspect and, I
respectfully dissent only from that one aspect of the majority’s opinion. Therefore, I
would affirm the decision of the trial court in its entirety.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
-2-
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NUMBER 13-03-514-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
MARITZA QUINTANILLA, Appellant,
v.
ABEL QUINTANILLA, Appellee.
___________________________________________________________________
On appeal from the 93rd District Court
of Hidalgo County, Texas.
___________________________________________________________________
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Garza
Opinion Per Curiam
Appellant, MARITZA QUINTANILLA, perfected an appeal from a judgment entered
by the 93rd District Court of Hidalgo County, Texas, in cause number C-3614-99-B. The
notice of appeal was filed on September 5, 2003. On September 12, 2003, appellant was
advised that the notice of appeal did not comply with Tex. R. App. P. 25.1(e). To date,
appellant has failed to file an amended notice of appeal. Pursuant to Tex. Gov't Code
§51.207(b)(1) and § 51.941(a)(1), a filing fee in the amount of $125.00 is due upon the filing
of an appeal. To date, appellant has failed to pay the filing fee.
On September 12, 2003 and on November 20, 2003, pursuant to Tex. R. App. P.
42.3(c), notice was given to appellant that this appeal was subject to dismissal for failure to
comply with the rules. To date, appellant has failed to respond to this Court's notices. On
February 25, 2004, appellee filed a motion to dismiss the appeal for lack of prosecution.
The Court, having considered the documents on file, appellant's failure to comply
with the rules, and appellee's motion to dismiss the appeal, is of the opinion that the appeal
should be dismissed. Appellee's motion to dismiss the appeal is GRANTED, and the appeal
is hereby DISMISSED.
PER CURIAM
Opinion delivered and filed this
the 11th day of March, 2004.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITA GARCIA-RAMIREZ,
Petitioner, No. 02-73543
v.
Agency No.
A75-268-464
ALBERTO R. GONZALES, Attorney
General,* OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 9, 2004—Seattle, Washington
Filed August 26, 2005
Before: Dorothy W. Nelson, Raymond C. Fisher and
Ronald M. Gould, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Fisher;
Concurrence by Judge Gould
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
11645
GARCIA-RAMIREZ v. GONZALES 11649
COUNSEL
Manuel F. Rios, Rios Cantor, P.S., Seattle, Washington, for
the petitioner.
Anthony P. Nicastro, Office of Immigration Counsel, Wash-
ington, D.C., for the respondent.
OPINION
PER CURIAM:
Petitioner Margarita Garcia-Ramirez, a native and citizen
of Mexico, petitions for review of a decision of the Board of
Immigration Appeals (“BIA”), affirming without opinion an
Immigration Judge (“IJ”) decision denying her application for
cancellation of removal because of her failure to establish 10
years of continuous physical presence in the United States.
Garcia-Ramirez asserts that the BIA and IJ impermissibly
applied the continuous presence requirement of 8 U.S.C.
§ 1229b(d)(2) (the “90/180-day rule”)1 retroactively to find
1
The 90/180-day rule provides that “[a]n alien shall be considered to
have failed to maintain continuous physical presence in the United States
under subsections (b)(1) and (b)(2) of this section if the alien has departed
from the United States for any period in excess of 90 days or for any peri-
ods in the aggregate exceeding 180 days.” 8 U.S.C. § 1229b(d)(2). All
statutory citations hereinafter are to 8 U.S.C. unless otherwise indicated.
11650 GARCIA-RAMIREZ v. GONZALES
her automatically ineligible for cancellation of removal
because she departed the United States for five months
between April and September 1989. Our prior decisions gov-
erning similar claims under the transitional rules of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, § 309(c), compel us
to reject her claim.
I.
Garcia-Ramirez entered the United States illegally in May
1988 and has, but for one absence, lived in the country contin-
uously since then. In April 1989, Garcia-Ramirez left the
United States to visit family in Mexico. She returned to the
United States in September 1989. It is the effect of this five-
month absence on her accrual of time of continuous presence
in the United States that is the crux of this appeal.
On April 10, 1997, the Immigration and Naturalization Ser-
vice (“INS”)2 initiated removal proceedings against Garcia-
Ramirez as an alien present in the United States without being
admitted or paroled. The parties agree that Garcia-Ramirez’s
accrual of physical presence time ended on October 7, 1998,
when she was served with a notice to appear before an IJ.3 On
March 1, 1999, Garcia-Ramirez appeared in immigration
court, admitted to the allegations in the notice to appear and
requested that the IJ grant her cancellation of removal relief
2
On March 1, 2003, the INS was abolished as an agency within the
Department of Justice and its functions were transferred to the newly cre-
ated Department of Homeland Security.
3
Under IIRIRA, an alien’s accrual of physical presence time ends when
removal proceedings are commenced against the alien through service of
a notice to appear before an IJ. § 1229b(d)(1). The INS initially served
Garcia-Ramirez with a notice to appear on April 10, 1997. However, this
notice failed to specify the date or location of Garcia-Ramirez’s immigra-
tion hearing. Garcia-Ramirez was not served with a proper hearing notice
until October 7, 1998. Under § 1229(a), service of this second notice to
appear ended Garcia-Ramirez’s accrual of physical presence.
GARCIA-RAMIREZ v. GONZALES 11651
under § 1229b(b)(1) or, in the alternative, voluntary depar-
ture.
The IJ found Garcia-Ramirez removable as charged and
denied her request for cancellation of removal. In order to be
eligible for cancellation of removal, Garcia-Ramirez had to
demonstrate continuous physical presence in the United States
of not less than 10 years. § 1229b(b)(1)(A). Applying the
90/180-day rule of § 1229b(d)(2), the IJ found that Garcia-
Ramirez’s five-month absence in 1989 had interrupted her
otherwise continuous presence between May 1988 and the
service of her notice to appear in October 1998. Because
Garcia-Ramirez’s trip lasted more than 90 days, and less than
10 years had elapsed between her reentry in September 1989
and service of the notice to appear, the IJ determined that
Garcia-Ramirez was ineligible for cancellation of removal.
The IJ granted Garcia-Ramirez’s alternative request for vol-
untary departure.
Garcia-Ramirez appealed to the BIA, which affirmed the
IJ’s decision without an opinion. Garcia-Ramirez thereafter
filed her petition for review with our court. We have jurisdic-
tion under § 1252(a) and deny the petition for review.
II.
Garcia-Ramirez asserts that the 90/180-day rule in
§ 1229b(d)(2) cannot be applied to her because that provision
did not become law until 1997, and she left and reentered the
United States in 1989. She maintains that because she would
have remained eligible for cancellation of removal under the
law in effect at the time of her departure and reentry,
§ 1229b(d)(2) retroactively eliminates her preexisting right to
relief from removal and thereby offends due process. We first
address the government’s argument that we do not have juris-
diction to review the petition and then turn to the merits of
Garcia-Ramirez’s claim.
11652 GARCIA-RAMIREZ v. GONZALES
A. Jurisdiction
[1] The government challenges our jurisdiction to review
Garcia-Ramirez’s petition, asserting that she failed to exhaust
administrative remedies because she did not present her retro-
activity claim to the BIA. Under § 1252(d)(1) we “may
review a final order of removal only if the alien has exhausted
all administrative remedies available to the alien as of right.”
Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985); see
also id. (“As a general rule, issues not raised before an admin-
istrative tribunal cannot be raised on appeal from that tribu-
nal.”). Because the BIA does not have jurisdiction to resolve
constitutional challenges, however, due process claims —
other than those alleging only “procedural errors” within the
BIA’s power to redress — are exempt from this administra-
tive exhaustion requirement. Vargas v. INS, 831 F.2d 906,
908 (9th Cir. 1987).
[2] Garcia-Ramirez’s claim is properly viewed as an asser-
tion that application of the 90/180-day rule of § 1229b(d)(2)
to her violates due process because of impermissible retroac-
tivity. See INS v. St. Cyr, 533 U.S. 289, 316 (2001) (recogniz-
ing that Congress has the power to enact retroactive
legislation, but confirming that there are constitutional limits
on retroactivity). Retroactivity challenges to immigration laws
implicate legitimate due process considerations that need not
be exhausted in administrative proceedings because the BIA
cannot give relief on such claims. See Bagues-Valles, 779
F.2d at 484. Accordingly, we have jurisdiction to review
Garcia-Ramirez’s retroactivity claim even though it was not
raised before the BIA.
B. Retroactivity
[3] We turn to the merits of Garcia-Ramirez’s claim that
the IJ should not have applied the 90/180-day rule of
§ 1229b(d)(2) to find that her five-month absence in 1989 ter-
minated continuous physical presence. Section 1229b(d)(2)
GARCIA-RAMIREZ v. GONZALES 11653
provides a bright-line rule that an alien “shall be considered
to have failed to maintain continuous physical presence in the
United States” if the alien “has departed from the United
States for any period in excess of 90 days or for any periods
in the aggregate exceeding 180 days.” Garcia-Ramirez does
not contest that if § 1229b(d)(2) applies retroactively, her
five-month absence in 1989 would violate the 90/180-day
rule.
[4] From 1986 until IIRIRA’s effective date in April 1997,
however, the relevant statute provided that a departure from
the United States did not break continuous presence if it was
“brief, casual, and innocent and did not meaningfully interrupt
the [alien’s] continuous physical presence” in the United
States. § 1254(b)(2) (1995). “The evident statutory purpose
[of this standard was] to recognize that a person who lives for
[the requisite number of years] in the United States does not
destroy [her] eligibility by actions that do not affect [her]
commitment to living in this country.” Castrejon-Garcia v.
INS, 60 F.3d 1359, 1362 (9th Cir. 1995). Under this pre-
IIRIRA rule, “[f]or purposes of evaluating whether an
absence is brief, single absences in excess of 90 days . . . will
be evaluated on a case-by-case basis.” 8 C.F.R.
§ 240.64(b)(1); 8 C.F.R. § 1240.64(b)(1). Garcia-Ramirez
contends that the more flexible § 1254 standard must be used
to evaluate her continuous presence because applying
§ 1229b(d)(2) would be impermissibly retroactive.
1.
[5] In its landmark decision in Landgraf v. USI Film Prod-
ucts, 511 U.S. 244 (1994), the Supreme Court set forth the
principles we must consider in determining whether a statute
should be applied retroactively. Noting that “the presumption
against retroactive legislation is deeply rooted in our jurispru-
dence, and embodies a legal doctrine centuries older than our
Republic,” the Court stated in plain terms that,
11654 GARCIA-RAMIREZ v. GONZALES
[e]lementary considerations of fairness dictate that
individuals should have an opportunity to know what
the law is and to conform their conduct accordingly;
settled expectations should not be lightly disrupted.
For that reason, the “principle that the legal effect of
conduct should ordinarily be assessed under the law
that existed when the conduct took place has time-
less and universal appeal.”
Id. at 265 (quoting Kaiser Aluminum & Chemical Corp. v.
Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring));
see INS v. St. Cyr, 533 U.S. at 316.
[6] In light of these principles, the Court articulated a two-
step approach for evaluating when the normal presumption
against retroactivity should not apply. Our “first task” under
Landgraf is to “determine whether Congress has expressly
prescribed the statute’s proper reach.” Landgraf, 511 U.S. at
280. If Congress has clearly expressed that a law should be
applied to conduct occurring before its enactment, our inquiry
ends and we must defer to Congress’ command. Otherwise,
we proceed to Landgraf’s second step and ask “whether the
new statute would have retroactive effect, i.e., whether it
would impair rights a party possessed when he acted, increase
a party’s liability for past conduct, or impose new duties with
respect to transactions already completed.” Id. If the new law
would have such a retroactive effect, the “traditional pre-
sumption teaches that [the new statute] does not govern . . . .”
Id.
2.
The first step of Landgraf requires us to “ascertain whether
Congress has directed with the requisite clarity that the law be
applied retrospectively.” St. Cyr, 533 U.S. at 316. The
Supreme Court has cautioned that “[t]he standard for finding
such unambiguous direction is a demanding one.” Id. “[C]ases
where [the Supreme] Court has found truly ‘retroactive’ effect
GARCIA-RAMIREZ v. GONZALES 11655
adequately authorized by a statute have involved statutory
language that was so clear that it could sustain only one inter-
pretation.” Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997).
Garcia-Ramirez argues that under this exacting standard, con-
gressional intent to apply the 90/180-day rule retroactively
cannot be found because § 1229b(d)(2) contains no statement
as to its intended temporal reach.
[7] Prior circuit law compels us to reject her argument. We
have held, in a series of related cases, that IIRIRA’s “transi-
tional rules,” which govern application of IIRIRA’s perma-
nent provisions to cases that were pending on IIRIRA’s
effective date, contain unambiguous congressional intent that
the Act’s stop-time4 and 90/180-day rules apply retroactively.
Although the transitional rules do not directly govern Garcia-
Ramirez’s case, it would be incongruous to hold that Con-
gress intended to apply the 90/180-day rule to petitioners gov-
erned by those rules, but not to Garcia-Ramirez.
[8] When Congress enacted IIRIRA, it included in the stat-
ute a set of “transitional rules” specifying that particular pro-
visions of the permanent statute should apply to petitioners
against whom the INS had already initiated proceedings
before the statute’s effective date. See IIRIRA § 309(c). These
transitional rules expressly provide that two of IIRIRA’s pro-
visions relating to continuous presence — the stop-time rule
and the 90/180-day rule — “shall apply to orders to show
cause . . . issued before, on, or after the date of the enactment
of this Act.” IIRIRA § 309(c)(5)(A) (emphasis added).
4
The “stop-time” rule provides that “any period of continuous residence
or continuous physical presence in the United States shall be deemed to
end (A) except in the case of an alien who applies for cancellation of
removal under subsection (b)(2) of this section, when the alien is served
a notice to appear under § 1229(a) of this title, or (B) when the alien has
committed [certain criminal offenses], whichever is earliest.”
§ 1229b(d)(1).
11656 GARCIA-RAMIREZ v. GONZALES
We first addressed this “before, on, or after” language in
Ram v. INS, 243 F.3d 510 (9th Cir. 2001). Ram argued that
the stop-time rule — which specifies that an alien’s period of
continuous physical presence ends when deportation proceed-
ings begin — could not be applied to his petition because the
INS had initiated proceedings against him before IIRIRA took
effect and application of the rule to him would have an imper-
missible retroactive effect. We disagreed. We found unambig-
uous the statute’s instruction that the stop-time rule be applied
to petitioners who fall under the transitional rules whose
orders to show cause were “issued before, on, or after the date
of enactment [of IIRIRA],” and also relied on IIRIRA’s legis-
lative history, which suggested that Congress intended the
transitional rules to apply the stop-time rule retroactively. See
Ram, 243 F.3d at 515-18 (quoting IIRIRA § 309(c)(5)(A)).
We later followed Ram in Mendiola-Sanchez v. Ashcroft,
381 F.3d 937 (9th Cir. 2004), to hold that § 309(c)(5)(A)
requires retroactive application of the 90/180-day rule as well.
The Mendiolas, whose case was governed by the transitional
rules, argued that a five-month trip they took in 1993 should
not bar their eligibility for suspension of deportation because
the pre-IIRIRA “brief, casual, and innocent” standard rather
than IIRIRA’s 90/180-day rule should apply to their petition.
We rejected their claim, reasoning that “it is very unlikely that
Congress intended to apply only the stop-time rule retroac-
tively, and not the 90/180-day rule. IIRIRA § 309(c)(5)(a)
states that both provisions apply to aliens whose deportation
proceedings were pending on the date of IIRIRA’s enactment
and there is no indication that the two provisions should be
applied differently.” Id. at 941.
[9] These cases compel us to reach the same conclusion
here. Garcia-Ramirez correctly argues that § 1229b(d)(2) does
not reflect an express congressional intent that it should be
applied retroactively, and we agree with her that use of the
past present tense — “an alien shall be considered to have
failed to maintain continuous presence” if the alien “has
GARCIA-RAMIREZ v. GONZALES 11657
departed” from the United States for more than 90 days — is
an insufficient ground from which to infer such intent under
the Landgraf standard. Mendiola-Sanchez, however, holds
that the broader IIRIRA statute, specifically § 309(c)(5)(a) of
the transitional rules, does contain unambiguous congressio-
nal intent that the 90/180-day rule be applied retroactively.
Although the INS did not initiate proceedings against Garcia-
Ramirez until after IIRIRA’s effective date, and thus the tran-
sitional rules do not govern her petition, § 309(c)(5)(a) is part
of the IIRIRA statute and stands as persuasive evidence, as
construed by Mendiola-Sanchez, that Congress intended to
apply the 90/180-day rule to non-citizens who, like the Men-
diolas and Garcia-Ramirez, left the country for periods of
more than 90 days before IIRIRA’s passage.
Declining to apply the 90/180-day rule here would there-
fore produce an incongruous result. Garcia-Ramirez’s circum-
stances closely resemble those of the Mendiolas, whose
claims were arguably even more compelling than those of
Garcia-Ramirez. She entered the country illegally in May
1988 and has lived in the country continuously since that date
with the exception of her five-month trip in 1989 to visit fam-
ily in Mexico. The Mendiolas, however, had continuously
resided in the United States for even longer, since 1983. After
accumulating 10 years of continuous presence in the United
States, Mendiola took a six-month trip to Mexico in 1993 to
care for his parents and was joined by his son for five months
of that trip. Although Mendiola’s wife and daughter, who had
not traveled to Mexico, received relief from deportation, we
upheld the BIA’s application of the 90/180-day rule to Mr.
Mendiola and his son.
The legal distinction between these two cases derives solely
from the fortuity that the INS initiated proceedings against the
Mendiolas one day before IIRIRA’s effective date but did not
place Garcia-Ramirez in removal proceedings until after the
statute became effective. The transitional rules thus controlled
the Mendiolas’ case, whereas the permanent provisions apply
11658 GARCIA-RAMIREZ v. GONZALES
to Garcia-Ramirez. Neither Garcia-Ramirez nor the Men-
diolas could have known when they took their trips to Mexico
that the “brief, casual, and innocent” standard would be abro-
gated and replaced with IIRIRA’s 90-day bright line rule, and
the Mendiolas, who received their orders to show cause
before IIRIRA’s effective date, seemingly have the more
compelling argument that IIRIRA’s new provisions should
not apply to them.
[10] Because we have already held that IIRIRA’s transi-
tional rules contain express congressional intent to apply the
90/180-day rule to petitioners who left the country for more
than 90 days before IIRIRA’s passage, we conclude that we
are required to apply the rule to all such petitioners, whether
their cases are governed by the transitional rules or IIRIRA’s
permanent provisions.
Petition DENIED.
FISHER, Circuit Judge, with whom D. W. NELSON, Senior
Circuit Judge, joins, concurring:
Although we hold that Mendiola-Sanchez v. Ashcroft, 381
F.3d 937 (9th Cir. 2004), compels us to affirm application of
the 90/180-day rule to Garcia-Ramirez, we do so reluctantly
because we remain unconvinced that Ram v. INS, 243 F.3d
510 (9th Cir. 2001), required the result reached in Mendiola-
Sanchez, and because we believe that Garcia-Ramirez would
have prevailed under the second step of the retroactivity test
articulated in Landgraf v. USI Film Products, 511 U.S. 244
(1994).
The Mendiola-Sanchez panel articulated its own regret in
holding that the 90/180-day rule must apply retroactively to
the Mendiolas:
GARCIA-RAMIREZ v. GONZALES 11659
Although we deny the petition for review because
that is the proper conclusion under the relevant stat-
utes, we pause in recognition of the injustice of this
result. . . . The only reason the Mendiolas are ineligi-
ble for suspension of deportation is that they stayed
too long in Mexico to help Mr. Mendiola-Sanchez’s
elderly parents recover from unexpected injuries.
Mendiola-Sanchez, 381 F.3d at 941. Nonetheless, the panel
concluded that the “core of the reasoning in Ram applie[d] to
the 90/180 day rule” and that it was “very unlikely that Con-
gress intended to apply only the stop-time rule retroactively,
and not the 90/180 day rule.” Id. at 940-41. Accordingly, the
panel held that Ram controlled and denied the Mendiolas’
petition for relief.
We do not think that Ram required the result in Mendiola-
Sanchez. Section 309(c)(5)(A) of IIRIRA (included in the
statute’s “transitional rules”) instructs that the stop-time and
90/180-day rules should be applied to petitioners whose cases
were pending on IIRIRA’s effective date whether their orders
to show cause were issued “on, before, or after” IIRIRA’s
enactment. With regard to the stop-time rule, this provision
constitutes unambiguous congressional intent that the statute
be applied retroactively: regardless of when an alien’s order
to show cause was issued, her accrued continuous presence
time must, under § 309(c)(5)(A), stop on that date. Applica-
tion of § 309(c)(5)(A) to the 90/180-day rule, however, is
slightly more complicated because it changes the rules as to
actions the petitioner has already taken.
Under Ram, § 309(c)(5)(A) requires that the 90/180-day
rule apply to petitioners whose cases were pending when
IIRIRA became effective, but Ram has no effect on a subse-
quent question — whether even if the 90/180-day rule applies
to a petitioner’s case, it applies to trips that she took before
Congress passed IIRIRA. The Mendiola-Sanchez panel did
not consider this second question, not present in Ram, before
11660 GARCIA-RAMIREZ v. GONZALES
reaching its conclusion that Ram controlled. On a blank slate,
we would construe § 309(c)(5)(A) as expressing congressio-
nal intent to apply the 90/180-day rule to all petitioners whose
cases were pending when IIRIRA became effective on April
1, 1997, but only to their absences from the country that post-
date IIRIRA’s enactment on September 30, 1996. Admittedly,
the rule would then affect only a very small class of petition-
ers. But applying the Landgraf standard, we would not read
the statute to attach penalties to trips taken before Congress
passed IIRIRA, absent express, unambiguous congressional
intent to do so.
Further, if Mendiola-Sanchez erred in finding congressional
intent in § 309(c)(5)(A) — which we respectfully think it did
but which we accept as binding on us — we believe that
Garcia-Ramirez would be entitled to a remand for reconsider-
ation of her petition under the old standard. Where Congress
has not clearly specified otherwise, the traditional presump-
tion against retroactivity applies if the statute would have
retroactive effect.
A statute has retroactive effect when it takes away or
impairs vested rights acquired under existing laws,
or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions
or considerations already past.
INS v. St. Cyr, 533 U.S. 289, 321 (2001) (quoting Landgraf,
511 U.S. at 269) (internal quotation marks omitted) (emphasis
added). Retroactivity analysis involves a “commonsense,
functional judgment about whether the new provision
attaches new legal consequences to events completed before
its enactment,” and is “informed and guided by familiar con-
siderations of fair notice, reasonable reliance, and settled
expectations.” Id. (quoting Martin v. Hadix, 527 U.S. 343,
357-58 (1999)) (internal quotation marks omitted) (emphasis
added).
GARCIA-RAMIREZ v. GONZALES 11661
On its face, the application of § 1229b(d)(2) to Garcia-
Ramirez long after the fact of her 1989 five-month trip to
Mexico clearly “attach[es] a new disability, in respect to [a
transaction] already past.” Id. At the time she took her trip,
Garcia-Ramirez risked that her absence would later be judged
not to have been “brief, casual, and innocent,” thereby effec-
tively restarting the clock when she returned in 1990. She did
not have an assurance, therefore, that her departure and return
would have no adverse effect; but she likewise did not have
reason to believe that her five-month absence would automat-
ically negate her accrued time and restart the clock — which
is the effect of applying the new bright-line rule of the 1997
statute. “There is a clear difference, for the purposes of retro-
activity analysis, between facing possible deportation and fac-
ing certain deportation.” Id. at 325. Because applying
§ 1229b(d)(2) to Garcia-Ramirez “attaches new legal conse-
quences to events completed before its enactment,” doing so
has an impermissibly retroactive effect. Id. at 321 (quoting
Martin, 527 U.S. at 357-58 (quoting Landgraf, 511 U.S. at
270)).
Elementary notions of fairness and fair notice, reasonable
reliance, settled expectations and commonsense also counsel
in favor of applying the traditional presumption of nonretroac-
tivity. When Garcia-Ramirez took her trip, she had no reason
to believe that her absence would automatically disqualify her
from eligibility for relief; she could reasonably rely on the law
at the time as governing the effects of her departure. The
change in law should not, absent clearly expressed Congres-
sional intent, bar her eligibility retroactively. When a statute
converts a five-month trip from a risk of losing eligibility for
relief from removal to an automatic certainty, what greater
need is there for notice and a chance to conform one’s behav-
ior to the new, bright-line rule? This is a paradigm instance
of the law imposing a new legal disability based on an event
completed before the law changed. Nonetheless, because
Judge Gould does not agree with us, we will address the spe-
cific arguments for and against retroactivity.
11662 GARCIA-RAMIREZ v. GONZALES
Section 1229b(d)(2) should be impermissibly retroactive as
applied to Garcia-Ramirez because the 90/180-day rule auto-
matically makes her ineligible for cancellation of removal,
whereas she would not be automatically ineligible for such
relief under the pre-IIRIRA “brief, casual, and innocent” stan-
dard. She did not seek an assurance that her absence was in
fact “brief, casual, and innocent”; instead, she sought eligibil-
ity to argue this point to the BIA on remand. Analogously, in
St. Cyr, the Supreme Court held that IIRIRA’s elimination of
discretionary relief for aliens convicted of aggravated felonies
could not be applied retroactively to an alien who had pled
guilty before IIRIRA’s effective date. See id. at 326.
Although Garcia-Ramirez cannot point to the kind of quid
pro quo that the Supreme Court presumed to have occurred in
St. Cyr — a guilty plea — the Court has by no means set forth
quid pro quo as the only route for demonstrating that a statute
is impermissibly retroactive. Rather, “[n]o single consider-
ation is essential. Retroactivity analysis under Landgraf
requires independent analysis of whatever factors may apply,
any of which can ground a finding of impermissible retroac-
tive application.” Chang v. United States, 327 F.3d 911, 920
n.8 (9th Cir. 2003); see also Hughes Aircraft Co. v. United
States, 520 U.S. 939, 947 (1997) (emphasizing that “the Court
has used various formulations to describe the functional con-
ceptio[n] of legislative retroactivity”) (internal quotation
marks omitted); Restrepo v. McElroy, 369 F.3d 627, 637 (2d
Cir. 2004) (“[T]he Court never suggested that all parties who
claim that a statute has a retroactive effect must show the dis-
ruption of a quid pro quo exchange. And it would be out of
keeping with the reasoning of St. Cyr [ ] to read such a quid
pro quo requirement into that opinion. For in St. Cyr [ ], the
Court observed that ‘categorical arguments are not particu-
larly helpful in undertaking Landgraf’s commonsense, func-
tional retroactivity analysis.’ ”) (quoting St. Cyr, 533 U.S. at
324).
GARCIA-RAMIREZ v. GONZALES 11663
Nor does our circuit law impose an additional requirement
that in order to establish reliance on the old law, a petitioner
must in all circumstances demonstrate actual, subjective reli-
ance or a quid pro quo exchange to establish impermissible
retroactivity. “Reasonable reliance may itself be based upon
a quid pro quo, as in St. Cyr . . . or merely on assurances as
to the current status of the law.” Chang, 327 F.3d at 920 n.8
(citation omitted) (holding that new INS rules could not be
applied to investors whose petitions were approved before the
rules were promulgated, because they would impose a new
exhaustion requirement and take away the right of appeal
without fair notice); see also Kankamalage v. INS, 335 F.3d
858, 863 (9th Cir. 2003) (applying St. Cyr and concluding that
a regulation impermissibly attached a new disability to an
alien’s guilty plea, without examining whether the alien spe-
cifically bargained for eligibility at the time of the plea);
United States v. Velasco-Medina, 305 F.3d 839, 849-50 (9th
Cir. 2002) (holding that Velasco-Medina could not have rea-
sonably relied on the possibility of relief under the legal land-
scape at the time he entered his guilty plea).1
Thus we disagree with Judge Gould that applying St. Cyr
to Garcia-Ramirez’s situation would constitute an extension
1
Judge Gould challenges our reliance on Kankamalage and Velasco-
Medina, stating that “these cases do not assist in de-emphasizing the
importance the Supreme Court in St. Cyr placed on reasonable reliance,
settled expectations and vested interests.” Judge Gould concurrence at
11675. We agree that these cases require reasonable reliance, but objec-
tively reasonable reliance. As both cases involve guilty pleas, they follow
St. Cyr in holding that a guilty plea is evidence of reasonable reliance and
do not speak to the question of what other circumstances might evidence
reliance. In discussing the defendants’ reliance and expectations, both
cases turn on the state of the law at the time that the plea was entered, not
on the defendant’s subjective expectations at that time. Thus, we held that,
unlike St. Cyr and Kankamalage, Velasco-Medina did not have settled
expectations of § 212(c) relief because AEDPA put him on notice that
such relief might not be available and his expectations “must have been
shaped by the then-current legal landscape.” Velasco-Medina, 305 F.3d at
849.
11664 GARCIA-RAMIREZ v. GONZALES
either of St. Cyr or of retroactivity analysis more generally.
Indeed, both the Third and the Fourth Circuits have recently
rejected the contention that retroactivity analysis requires
actual reliance or the type of quid pro quo exchange present
in St. Cyr. See Ponnapula v. Ashcroft, 373 F.3d 480, 491-93
& n.9 (3d Cir. 2004) (holding that Supreme Court law
requires “reasonable” not “actual” reliance, observing that
“St. Cyr was an easy case on the retroactivity issue,” and not-
ing that the presence of a quid pro quo is evidence of a reli-
ance interest); Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.
2004) (holding that consideration of reliance is irrelevant to
statutory retroactivity analysis; alternatively, that only objec-
tively reasonable reliance, not subjective reliance, is
required).
There are several hallmarks of retroactivity present here
that demonstrate that application of the 90/180-day rule to
Garcia-Ramirez upsets settled expectations without notice.
First, “[t]here is a clear difference, for the purposes of retroac-
tivity analysis, between facing possible deportation and facing
certain deportation.” St. Cyr, 533 U.S. at 325. By pleading
guilty to the charged offense, St. Cyr risked eventual deporta-
tion and denial of § 212(c) relief. The Supreme Court
explained that turning the possibility of deportation into a cer-
tainty would have “a severe retroactive” effect. Id. Similarly,
by leaving the country for five months, Garcia-Ramirez risked
eventual deportation based on a later determination that her
absence was not “brief, casual, and innocent.” Applying
IIRIRA now to her past conduct, however, makes her poten-
tial ineligibility for suspension of deportation absolute. Of
course, Garcia-Ramirez had little accrued time when she took
her trip to Mexico in 1989. But however brief, that accrued
time has turned out to be vital to her ability to satisfy the con-
tinuous physical presence requirements.
Second, there is a significant difference between a statute
that extends the time required to qualify for possible relief
from removal — extending the duration from seven to 10
GARCIA-RAMIREZ v. GONZALES 11665
years — and one that reaches back to prior conduct and auto-
matically subtracts it from one’s accrued continuous presence.
Thus, applying the presumption against retroactivity here
would in no way conflict with our holding in Jimenez-Angeles
v. Ashcroft, 291 F.3d 594 (9th Cir. 2002), that IIRIRA’s new
10-year rule can be applied to petitioners who were present in
the United States before its enactment. Jimenez-Angeles did
not forfeit any part of her accumulated time — or suffer any
consequences she could have avoided by changing her prior
actions once her continuous presence clock began running had
she known the requisite time would be extended to 10 years.
A person in Garcia-Ramirez’s situation, on the other hand,
could, with notice, simply have remained within the bounds
of the 90/180-day parameters of the new law.
Third, considerations of reasonable reliance and fair notice
counsel against the application of § 1229b(d)(2) to Garcia-
Ramirez. Garcia-Ramirez’s “settled expectations must have
been shaped by the then-current legal landscape.” Velasco-
Medina, 305 F.3d at 849; see also Kankamalage, 335 F.3d at
863. When the “relevant past event” occurred, namely Garcia-
Ramirez’s decision to leave the United States in 1989 for
more than 90 days, she could reasonably have relied on exist-
ing law to conclude that her departure would not necessarily
restart the clock on a bid to establish continuous physical
presence in the United States. Landgraf, 511 U.S. at 270. By
contrast, Jimenez-Angeles had no basis in law for believing
that her relevant past event — turning herself in before
IIRIRA’s effective date — would cause the INS to place her
into deportation proceedings before IIRIRA’s effective date
or under pre-IIRIRA law. See Jimenez-Angeles, 291 F.3d at
602; see also Lopez-Urenda v. Ashcroft, 345 F.3d 788, 793
(9th Cir. 2003); Vasquez-Zavala v. Ashcroft, 324 F.3d 1105,
1107 08 (9th Cir. 2003).2 Far from relying on the mere hope
2
We have subsequently relied on this aspect of Jimenez-Angeles in con-
cluding that two aliens who filed asylum applications on March 10, 1997
11666 GARCIA-RAMIREZ v. GONZALES
of beneficence by the INS, in 1989 aliens such as Garcia-
Ramirez had statutory assurance about how their temporary
departures would be evaluated. See 8 U.S.C. § 1254(b)(2)
(1995); Chang, 327 F.3d at 920 n.8.
As in St. Cyr, Chang and Kankamalage, a finding of imper-
missible retroactivity here would not depend on Garcia-
Ramirez showing that she actually, subjectively relied on 8
U.S.C. § 1254(b)(2) when she departed the United States. See
St. Cyr, 533 U.S. at 322-25 (presuming a quid pro quo with-
out proof of actual reliance); see also Olatunji, 387 F.3d at
393 (“St. Cyr did not purport to add a subjective reliance
requirement; rather it applied Landgraf to a set of facts that
indicated ‘an obvious and severe retroactive effect.’ ” (citing
St. Cyr, 533 U.S. at 325) (emphasis added)); Ponnapula, 373
F.3d at 491 (“The Supreme Court has never required actual
reliance or evidence thereof in the Landgraf line of cases, and
has in fact assiduously eschewed an actual reliance require-
ment.”). Rather, given the statutory structure in 1989 — in
which temporary absences were assessed under a judgmental,
discretionary standard — we would not presume that Garcia-
Ramirez’s decision to remain in Mexico for more than 90
days would have been the same had § 1229b(d)(2)’s
90/180-day absolute limitation been on the books instead.
— shortly before IIRIRA went into effect on April 1, 1997 — had no set-
tled expectations that they would be subject to deportation proceedings
under pre-IIRIRA law rather than removal proceedings under IIRIRA. See
Vasquez-Zalava, 324 F.3d at 1108. IIRIRA was not impermissibly retroac-
tive as applied to these asylum applicants because, as was the case when
Jimenez-Angeles turned herself in, “any expectation that an INS action
would thereafter commence could not support a sufficient expectation as
to when it would commence.” Id. (emphasis in original); see also Lopez-
Urenda, 345 F.3d at 794 (extending Vasquez-Zalava’s holding to aliens
who filed asylum applications before IIRIRA’s passage on September 30,
1996, because even assuming their asylum applications would be denied,
the applicants “did not have settled expectations as to when proceedings
against them would commence”) (emphasis in original).
GARCIA-RAMIREZ v. GONZALES 11667
We would not dispense with the requirement of reasonable
reliance. We simply find it to be objectively reasonable that
an alien like Garcia-Ramirez, contemplating a trip outside the
United States in 1989, could reasonably rely on the then-
applicable legal standard not later being converted to one that
automatically restarted the clock on her continuous presence
because she exceeded the 90-day limit — a limit she could
have stayed within had that been the rule at the time. There-
fore, applying § 1229b(d)(2) to her 1989 departure imper-
missibly attaches new legal consequences that did not exist
before IIRIRA. See Landgraf, 511 U.S. at 270.
We agree with Judge Gould that Congress retains its super-
ordinate role in formulating and reformulating our immigra-
tion laws. See Judge Gould concurrence at 11679. But it is
settled law that in doing so, Congress must express its intent
clearly. See, e.g., St. Cyr, 533 U.S. at 316.3 Congress has not
done so with respect to applying the new 90/180-day rule to
trips taken before IIRIRA’s passage, and Garcia-Ramirez has
demonstrated objectively reasonable reliance on the prior law.
But for Mendiola-Sanchez, we would apply the “deeply root-
ed” presumption against retroactivity in favor of Garcia-
Ramirez (and the Mendiolas). See Landgraf, 511 U.S. at 265.
3
Judge Gould points to the REAL ID Act as an example of Congress
implementing immigration law reform. See Judge Gould concurrence at
11680 n.7. The REAL ID Act illustrates our very point, because it con-
tains express provisions instructing that certain changes in the law should
be applied retrospectively and others only prospectively. See REAL ID
Act, Pub. L. 109-13, 119 Stat. 231. Where such express instruction exists,
we can be confident that Congress has weighed the costs and benefits of
retroactive application of the new laws and has considered the potential
hardships imposed on individuals who took actions under the old law.
Absent such evidence that Congress has weighed and considered the
effects of its new legislation on prior actions, we would not upset the set-
tled expectations of petitioners like Garcia-Ramirez who took trips under
the old legal landscape.
11668 GARCIA-RAMIREZ v. GONZALES
GOULD, Circuit Judge, concurring:
Judge Fisher, in his separate concurrence, states that he “re-
luctantly” agrees that our precedent governing similar claims
under the transitional rules of IIRIRA requires that Garcia-
Ramirez’s petition be denied. See Mendiola-Sanchez v. Ash-
croft, 381 F.3d 937 (9th Cir. 2004) and Ram v. INS, 243 F.3d
510 (9th Cir. 2001). My able colleague writes separately to
explain his further view that, were he reviewing Garcia-
Ramirez’s petition “on a blank slate,” he would proceed to the
second step of the Landgraf retroactivity analysis1 and con-
clude that the petition should be granted. I write separately, in
turn, with my responsive views, as I conclude differently that,
if we were called upon to apply Landgraf’s second step, the
application of the 90/180-day rule to Garcia-Ramirez would
not result in an impermissibly retroactive effect under the
Supreme Court’s precedent.
I
A new statute does not produce an impermissibly retroac-
tive effect “merely because it is applied in a case arising from
conduct antedating the statute’s enactment, or upsets expecta-
tions based in prior law.” Landgraf, 511 U.S. at 269 (internal
citation omitted). Rather, the question of whether constitu-
tionally impermissible consequences result from a statute’s
1
In St. Cyr, the Supreme Court affirmed and reiterated the two-part
framework for addressing potentially retroactive statutes that was estab-
lished in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).
Applying the Landgraf test, a court must first ask “whether Congress has
directed with the requisite clarity that the law be applied retrospectively.”
St. Cyr, 533 U.S. at 316; see also Landgraf, 511 U.S. at 280 (holding that
Congress must “expressly prescribe[ ] the statute’s proper reach”). If the
statutory language does not meet this standard, our analysis must proceed
to Landgraf’s second prong, asking whether the application of the statute
“produces an impermissible retroactive effect.” St. Cyr, 533 U.S. at 320.
In our per curiam opinion, we conclude our Landgraf analysis at step one,
holding that our prior circuit law compels the conclusion that Congress
intended IIRIRA’s 90/180-day rule to apply retroactively.
GARCIA-RAMIREZ v. GONZALES 11669
retrospective application is a “commonsense, functional judg-
ment . . . guided by ‘familiar considerations of fair notice, rea-
sonable reliance, and settled expectations.’ ” Martin v. Hadix,
527 U.S. 343, 357-58 (1999) (quoting Landgraf, 511 U.S. at
270). “A statute has retroactive effect when it takes away or
impairs vested rights acquired under existing laws, or creates
a new obligation, imposes a new duty, or attaches a new dis-
ability, in respect to transactions or considerations already
past.” St. Cyr, 533 U.S. at 321 (internal quotation marks omit-
ted). However, the “application of new statutes passed after
the events in suit is unquestionably proper in many situa-
tions.” Landgraf, 511 U.S. at 273. St. Cyr is the Supreme
Court’s most recent pronouncement on Landgraf’s retroactiv-
ity analysis in the immigration context, and we must look to
it to guide our own review. See Agostini v. Felton, 521 U.S.
203, 237 (1997) (instructing lower courts to apply the Court’s
most direct precedent—clearly St. Cyr in this case—when
looking for guidance and controlling authority). I begin by
reviewing St. Cyr in some detail.
A
Enrico St. Cyr was a lawful permanent resident alien who
pled guilty to an aggravated felony charge. St. Cyr, 533 U.S.
at 293. At the time of his guilty plea, St. Cyr’s conviction ren-
dered him deportable; however, he was then still eligible for
a discretionary waiver of deportation that was available for
permanent resident aliens pursuant to INA § 212(c). Id.
IIRIRA repealed the Attorney General’s discretion to waive
deportation under § 212(c), replacing it in relevant part with
8 U.S.C. § 1229b(a)(3), which excluded anyone convicted of
an aggravated felony from the relief of cancellation of
removal. Id. at 297. Because his removal proceedings were
not commenced until after IIRIRA’s effective date, St. Cyr
could no longer avail himself on the possibility of discretion-
ary relief. The Court granted certiorari on St. Cyr’s habeas
appeal, to decide, inter alia, “whether depriving removable
aliens of consideration for § 212(c) relief produces an imper-
11670 GARCIA-RAMIREZ v. GONZALES
missible retroactive effect for aliens who, like [St. Cyr], were
convicted pursuant to a plea agreement at a time when their
plea would not have rendered them ineligible for § 212(c)
relief.” Id. at 320.
Proceeding under the second prong of the Landgraf analy-
sis, the Court held that applying the repeal of § 212(c) to
aliens “who entered into plea agreements with the expectation
that they would be eligible for [ ] relief clearly ‘attaches a new
disability, in respect to transactions or considerations already
past.’ ” Id. at 321. (quoting Landgraf, 511 U.S. at 269)
(emphasis added). Central to the Court’s conclusion was the
alien’s “reasonable reliance” on the possibility of discretion-
ary relief in deciding to waive his right to a trial and enter into
the plea agreement:
Plea agreements involve a quid pro quo between a
criminal defendant and the government. In exchange
for some perceived benefit, defendants waive several
of their constitutional rights (including the right to a
trial) and grant the government numerous tangible
benefits, such as promptly imposed punishment
without the expenditure of prosecutorial resources.
There can be little doubt that, as a general matter,
alien defendants considering whether to enter into a
plea agreement are acutely aware of the immigration
consequences of their convictions. Given the fre-
quency with which § 212(c) relief was granted in the
years leading up to AEDPA and IIRIRA, preserving
the possibility of such relief would have been one of
the principal benefits sought by defendants deciding
whether to accept a plea offer or instead to proceed
to trial.
St. Cyr, 533 U.S. at 321-23 (internal quotation marks, foot-
notes, and citations omitted). The Court concluded that
because the respondent “almost certainly relied upon” the
likelihood of receiving § 212(c) relief “in deciding whether to
GARCIA-RAMIREZ v. GONZALES 11671
forgo [his] right to a trial, the elimination of [that possibility]
by IIRIRA ha[d] an obvious and severe retroactive effect.” Id.
at 325.
B
Judge Fisher in his separate concurrence acknowledges that
Garcia-Ramirez lacks the quid pro quo that was central to the
Court’s analysis in St. Cyr. Judge Fisher concurrence at
11662. He does not view this omission as fatal to his analysis,
however, contending that reasonable reliance is not the sine
qua non for a holding of impermissible retroactive effect, and
no doubt taking solace that Landgraf did not “define the outer
limit of impermissible retroactivity.” Hughes Aircraft Co. v.
United States, 520 U.S. 939, 947 (1997)).
I agree that the Supreme Court has not heretofore made any
one factor of our retroactivity analysis dispositive. However,
I would not stray from the Court’s instructive example in the
immigration context. See Agostini, 521 U.S. at 237. St. Cyr
exchanged his “vested” legal right to trial relying on the
assumption that it would not make him automatically deport-
able. This reliance was reasonable given the significant per-
centage of resident aliens granted § 212(c) relief at the time.
See St. Cyr, 533 U.S. at 322-23. By entering into a plea agree-
ment, St. Cyr in turn “grant[ed] the government numerous
‘tangible benefits, such as promptly imposed punishment
without the expenditure of prosecutorial resources.’ ” Id. at
322 (quoting Newton v. Rumery, 480 U.S. 386, 393 n.3
(1987)).
Garcia-Ramirez, on the other hand, petitioned our court
hoping for the possibility to avail herself of a five-month trip
she took after having been in the country illegally for less
than a year, and introduced no evidence whatsoever that she
made her trip with any expectation about immigration law
consequence. Unlike St. Cyr, Garcia-Ramirez did not bargain
away any existing legal right in reliance on the pre-IIRIRA
11672 GARCIA-RAMIREZ v. GONZALES
discretionary relief standard. In fact, in view of the absence of
contrary evidence in the record, it seems very unlikely that,
when she went to Mexico for five months, she was even con-
scious of the relief of suspension of deportation or its continu-
ous physical presence requirement, to say nothing of its
exception for “brief, casual, and innocent” trips. Even more
unlikely is the possibility that she in any way tailored her trip
to conform with that standard. The differences between St.
Cyr’s predicament and Garcia-Ramirez’s status are telling and
worth repeating: Unlike St. Cyr, Garcia-Ramirez had no
“vested right” that she gave up or bargained away; she had no
“reasonable reliance” on the law as it was before IIRIRA
implemented Congress’s reforms; and she had no “settled
expectations” of the effect of her action in departing the
United States. See St. Cyr, 533 U.S. at 321.2
Downplaying the importance of reasonable reliance and
vested rights to the St. Cyr analysis, my colleague Judge
Fisher notes that the Court in its St. Cyr opinion “presume[d]”
St. Cyr’s quid pro quo. Judge Fisher concurrence at 11662,
11666. He thus concludes that there is no need to address the
fact that there is no evidence how Garcia-Ramirez could have
reasonably relied on or even knew about pre-IIRIRA law.
Instead, in his view, we can simply assume and impute rea-
2
Moreover, the nature of the pre-IIRIRA “brief, casual, and innocent”
standard belies the conclusion that Garcia-Ramirez or aliens in a similar
circumstance could have reasonably relied on it, in connection with a five-
month sojourn outside of the United States. The “brief, casual, and inno-
cent” standard is vague and ambiguous, and Garcia-Ramirez’s five-month
excursion might not qualify as “brief, casual, and innocent” enough. If the
pre-IIRIRA standard had permitted eligibility for suspension of deporta-
tion with departures of a longer duration than the 90/180 rule, and if a per-
son could have relied objectively on a precise guideline for permissible
absence, perhaps a better case could be made that aliens could objectively
and reasonably rely on it in exiting and then reentering the country in
accord with that time frame. In light of the ambiguity of the prior standard,
and the apparent contrast of five months with its “brief” element, as it was
written, any purported reliance—for a trip of five months—cannot prop-
erly be described as objectively “reasonable.”
GARCIA-RAMIREZ v. GONZALES 11673
sonable reliance to Garcia-Ramirez from nothing more than
the “statutory structure in 1989.” See Judge Fisher concur-
rence at 11666. I disagree.
In the case of St. Cyr, the reasonable reliance factor could
be presumed by the Court because the evidence there made
reliance both apparent and objectively reasonable. See St. Cyr,
533 U.S. at 322 (“There can be little doubt that, as a general
matter, alien defendants considering whether to enter into a
plea agreement are acutely aware of the immigration conse-
quences of their convictions.”); id. (“Preserving the client’s
right to remain in the United States may be more important
to the client than any potential jail sentence.”); id. at 322 n.48
(citing state laws requiring trial judges to advise defendants of
the immigration consequences of their plea agreements); id. at
323 n.50 (citing the Amicus Brief of the National Association
of Criminal Defense Lawyers for the conclusion that “compe-
tent defense counsel, following the advice of numerous prac-
tice guides, would have advised St. Cyr concerning the
provision’s importance”); id. at 325 (“Prior to AEDPA and
IIRIRA, aliens like St. Cyr had a significant likelihood of
receiving § 212(c) relief.”).
In sharp contrast, the record in this case is void of any evi-
dence that Garcia-Ramirez even knew of the “brief, casual,
and innocent” standard, to say nothing of why it is a reason-
able assumption that she could have timed her trip purposely
to avail herself of it. But there is no question that reasonable
reliance, as illustrated in St. Cyr’s plea bargain, was central
to the Court’s retroactivity analysis. E.g., at 323 (“Given the
frequency with which § 212(c) relief was granted in the years
leading up to AEDPA and IIRIRA, preserving the possibility
of relief would have been one of the principal benefits St. Cyr
sought.”) (footnote omitted). Faced with this predicament and
with no evidence of reasonable reliance in sight, my able col-
league makes two arguments. First, he points out that subjec-
tive actual reliance is not needed, and that Garcia-Ramirez’s
case shows an objectively reasonable reliance. But the idea
11674 GARCIA-RAMIREZ v. GONZALES
that reliance need not be an actual subjective reliance is noth-
ing new, and does not address what evidence is necessary to
show reasonableness. The Court in St. Cyr considered a quid
pro quo to be an example of reasonable, not actual or subjec-
tive, reliance, presuming St. Cyr’s reliance because of the
general course of immigrant reliance on the possibility of INA
§ 212(c) discretionary relief when guilty pleas were entered.
By contrast, here, there is no suggestion that illegal immi-
grants generally display any reliance on the “brief, casual, and
innocent” standard in leaving the country for many months
before reentry in illegal status.3
Second, Judge Fisher in his separate concurrence concludes
that reasonable reliance can be assumed for Garcia-Ramirez
(and thus in every similar case) from the general “old legal
landscape” or “statutory structure in 1989.” Judge Fisher con-
currence 11667 & n.3. But this assumption effectively casts
out reasonable reliance from our retroactivity assessment, dis-
regarding the Court’s sensible instruction otherwise: “As we
have repeatedly counseled, the judgment whether a particular
statute acts retroactively should be informed and guided by
familiar considerations of fair notice, reasonable reliance,
and settled expectations.” St. Cyr, 533 U.S. at 321 (internal
quotation marks omitted) (emphasis added). My colleague’s
test would misapply the second step of the Court’s seminal
Landgraf analysis, making this second step a formality of
analysis that inescapably will lead to a jurisprudential dead-
end whenever Congress alters the “statutory structure.” Under
that form of analysis, were it adopted, the presumption against
retroactive legislation likely would be applied whenever Con-
gress has not explicitly declared retroactivity, satisfying the
3
My colleague also relies on the Court’s phrase in St. Cyr that “[t]here
is a clear difference, for the purposes of retroactivity analysis, between
facing possible deportation and facing certain deportation.” Judge Fisher
concurrence at 11661, 11664 (quoting St. Cyr, 533 U.S. at 325). In my
view, this phrase cannot be divorced from its context in St. Cyr, where it
was tied to St. Cyr’s reasonable reliance on the availability of discretion-
ary relief from deportation when he pled guilty.
GARCIA-RAMIREZ v. GONZALES 11675
first prong of the Landgraf test. The line of analysis proposed
by my colleague would go far to reduce Landgraf to a one-
step analysis.
C
Recognizing that St. Cyr cannot support his position that
this case is a “paradigm instance” of impermissible retroactiv-
ity, my colleague looks for help from our prior precedent.
Judge Fisher concurrence at 5, 7-8 (citing Kankamalage v.
INS, 335 F.3d 858, 863 (9th Cir. 2003), and United States v.
Velasco-Medina, 305 F.3d 839, 849-50 (9th Cir. 2002)). But
these cases do not assist in de-emphasizing the importance the
Supreme Court in St. Cyr placed on reasonable reliance, set-
tled expectations, and vested interests, as illustrated through
the quid quo pro of a plea bargain. In fact, both Kankamalage
and Velasco-Medina hinge on the question of whether reli-
ance on a pre-IIRIRA guilty plea was reasonable and created
settled expectations.
Jayantha Kankamalage was an alien who, like St. Cyr, pled
guilty to a conviction that would not have automatically dis-
qualified him for relief from deporation under pre-IIRIRA
law. Kankamalage, 335 F.3d at 860. We reiterated the impor-
tance of reasonable reliance: “[t]here can be little doubt that
. . . alien defendants considering whether to enter into a plea
agreement are acutely aware of the immigration consequences
of their convictions.” Id. at 863 (quoting St. Cyr, 533 U.S. at
322) (alteration in the original). Because the current regula-
tions would automatically disqualify Kankamalage from
relief, we viewed the case as “like St. Cyr,” concluding that
the petitioner, again, based on the quid pro quo of his guilty
plea, had legitimate settled expectations, and had reasonably
relied on pre-IIRIRA law. Id. We therefore held that the regu-
lation as applied to the petitioner was impermissibly retroac-
tive. Id. at 864.
Pedro Velasco-Medina also pled guilty under pre-IIRIRA
law and the statutory amendments retroactively made him
11676 GARCIA-RAMIREZ v. GONZALES
ineligible for cancellation of removal. Velasco-Medina, 305
F.3d at 843-44. However, in that case, we distinguished St.
Cyr and concluded that, because the passage of AEDPA had
already foreclosed any possibility of § 212(c) relief at the time
Velasco-Medina entered his guilty plea, the petitioner, unlike
St. Cyr, never possessed
vested rights acquired under existing laws. . . . Thus,
Velasco-Medina could not have developed the sort
of settled expectations concerning § 212(c) relief
that informed St. Cyr’s plea bargain and that ani-
mated the St. Cyr decision.
....
. . . To the extent he anticipated the continued
availability of 212(c) relief after his guilty plea, his
expectations were neither reasonable nor settled
under St. Cyr.
Id. at 849, 850 (internal quotation marks and citations omit-
ted). Far from minimizing the importance of St. Cyr’s quid
pro quo, both Kankamalage and Velasco-Medina turn on
whether an alien’s reliance and expectations stemming from
a guilty plea were settled and reasonable. These cases mention
the “legal landscape” in discussing the effect of plea bargains,
but Kankamalage and Velasco-Medina cannot correctly be
urged to support making a change of the “legal landscape”—
or the “statutory structure” as Judge Fisher also puts it—a test
unto itself.4
4
A step two Landgraf analysis in Garcia-Ramirez’s case would be akin
to our analysis in Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir.
2002). Jimenez-Angeles dealt with almost the exact same situation we face
here: the retroactive application of the continuous presence requirement
for cancellation of removal, 8 U.S.C. § 1229b(d). Like Garcia-Ramirez,
Alma Delia Jimenez-Angeles had no vested rights under pre-IIRIRA law,
expressed through a plea bargain or otherwise, but merely hoped to be
GARCIA-RAMIREZ v. GONZALES 11677
Nor can my colleague properly find support for his analysis
in extra-circuit case law. He cites two cases, from the Third
and Fourth Circuits respectively, which did not emphasize the
importance of reasonable reliance. Judge Fisher concurrence
at 11663-64 (citing cases). While no court has addressed the
exact question before us, my canvass of our sister circuits’
precedents addressing the retrospective application of other
IIRIRA provisions reveals that the great weight of authority
places a due emphasis on reliance. Far from minimizing reli-
ance, courts analyzing the retroactivity of IIRIRA provisions
under Landgraf’s second prong routinely and properly stress
the significance of reliance under St. Cyr. See, e.g., Rankine
v. Reno, 319 F.3d 93, 102 (2d Cir. 2003) (“[T]he issue of reli-
ance has played a central role in the Supreme Court’s and the
circuit courts’ reasoning with respect to the retroactivity of
IIRIRA and AEDPA.”); Chambers v. Reno, 307 F.3d 284,
289-90 (4th Cir. 2002) (recognizing that reliance was the “key
event” in St. Cyr’s retroactivity analysis).5
processed under pre-IIRIRA suspension of deportation instead of cancella-
tion of removal because she had fulfilled the temporal presence require-
ment for the former but not the latter. Jimenez-Angeles, 291 F.3d at 597.
Analyzing the retroactivity claim under step two of Landgraf, we held that
her “expectation” or “hope” that she could avail herself of suspension of
deportation “was not equivalent to the settled expectation St. Cyr gained
by entering into his plea bargain.” Id. at 602 (“A plea bargain is a formal
exchange in which each side consensually gives, and gets, something of
value. In Jimenez-Angeles’ case, there was no such exchange.”). In con-
trast to a formal plea bargain or any other evidence of reasonable reliance
and settled expectations, Garcia-Ramirez, like Jimenez-Angeles, “gave up
only her ability to continue living illegally and undetected in the United
States.” Id.
5
Most circuits have declined to find reasonable reliance and impermissi-
ble retroactive effect beyond the plea agreement context of St. Cyr. The
provision most frequently litigated has been IIRIRA’s repeal of INA
§ 212(c), the same provision at issue in St. Cyr. Most courts have held
IIRIRA not impermissibly retroactive as applied to petitioners who did not
enter a plea agreement like St. Cyr because, without the quid pro quo of
the plea agreement, no evidence exists from which to show a petitioner’s
11678 GARCIA-RAMIREZ v. GONZALES
Judge Fisher’s separate concurrence does not disclose a
case, in our circuit or any other, in which a federal court has
determined that there was reasonable reliance in the manner
in which he would determine reliance, devoid of evidence or
persuasive rationale why reliance, whether subjectively or
objectively grounded, should be reasonably presumed for a
class of persons situated similarly to the petitioner, save his
general argument about change in the “statutory structure.”6
reasonable reliance on the pre-IIRIRA provision. See, e.g., Swaby v. Ash-
croft, 357 F.3d 156, 161-62 (2d Cir. 2004) (holding that IIRIRA’s repeal
of INA § 212(c) was not impermissibly retroactive because, unlike St.
Cyr, the petitioner chose to proceed to trial instead of agreeing to a plea
and therefore “did not detrimentally rely on the availability of § 212(c)
relief”); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (per
curiam) (holding that IIRIRA’s repeal of INA § 212(c) relief not imper-
missibly retroactive as applied to petitioners who “did not abandon rights
or admit guilt in reliance on continued eligibility for § 212(c) relief”);
Rankine, 319 F.3d at 100 (same); Dias v. INS, 311 F.3d 456, 458 (1st Cir.
2002) (holding that IIRIRA’s repeal of § 212(c) was not impermissibly
retroactive to petitioners who did not rely on pre-IIRIRA law because the
“retroactivity analysis must include an examination of reliance”) (citing
Mattis v. Reno, 212 F.3d 31 (1st Cir. 2000)); Brooks v. Ashcroft, 283 F.3d
1268, 1274 (11th Cir. 2002) (holding that the repeal of § 212(c) was not
impermissibly retroactive because, unlike St. Cyr, petitioner “did not so
choose to rely upon the agreed upon terms of a plea” and because his case
did not present “the same concerns of quid pro quo, benefit for an
exchange, between a defendant and the government”).
Courts have declined to extend St. Cyr to other provisions of IIRIRA
as well. See, e.g., Uspango v. Ashcroft, 289 F.3d 226, 230 (3d Cir. 2002)
(holding that the application of cancellation of removal’s ten-year pres-
ence requirement to the petitioner was not impermissibly retroactive
because “[u]nlike the situation in St. Cyr, [the petitioner] can demonstrate
no detrimental reliance on pre-[IIRIRA] law” and “[the petitioner] gave up
no rights . . . nor did [the government] receive any benefits from [the peti-
tioner’s action]”); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 108-09
(4th Cir. 2001) (holding that IIRIRA § 241(a), requiring removal of aliens
previously ordered removed, did not operate in an impermissibly retroac-
tive manner because, unlike St. Cyr, the petitioner could not show “a rea-
sonable likelihood of success under pre-IIRIRA law nor a detrimental
reliance on pre-IIRIRA law”).
6
As explained above, the only cases that my colleague cites relying on
language equivalent to its “statutory structure” language is the “legal land-
GARCIA-RAMIREZ v. GONZALES 11679
Nor does my able colleague point to any other case holding
§ 1229b(d)(2) or a comparable temporal provision of IIRIRA
impermissibly retroactive.
II
In almost any instance of immigration law reform, it will
be the case that a multitude of illegal aliens were residing
within the United States and its “legal landscape” or “statu-
tory structure” when Congress acted to change the immigra-
tion law. It perhaps should not need repeating that the
Constitution gives the superordinate role to Congress, and not
to the federal courts, in regulating the flow and content of
immigration to the United States. The world changes rapidly,
and illegal immigration may pose threats or disadvantage to
the United States’ security, economy, and well-being. Con-
gress needs flexibility in fine-tuning our immigration laws. St.
Cyr carves out an exceptional area where reasonable reliance
constrains the ability of Congress to alter immigration law.
But nothing in St. Cyr or its immigration law progeny in the
federal courts makes welcome a far-reaching pronouncement
that impermissible retroactivity will likely follow from
change to the “statutory structure.” Such a rationale would
restrict the ability of Congress to implement law reform, in
the absence of explicit declarations of retroactivity, and would
scape” language of Velasco-Medina, 305 F.3d at 849, and Kankamalage,
335 F.3d at 863. But neither of those cases in fact relies upon such a ratio-
nale, as both hinge upon the evidence of reasonable reliance (or lack
thereof) arising from a plea agreement’s quid pro quo, just as in St. Cyr.
Kankamalage, 335 F.3d at 863-64; Velasco-Medina, 305 F.3d at 850.
More recently, in Kelava v. Gonzales, we held that IIRIRA’s repeal of
INA § 212(c) is not impermissibly retroactive as applied to an alien who
engaged in a terrorist activity that occurred prior to IIRIRA’s enactment.
410 F.3d 625, 630 (9th Cir. 2005). As relevant here, in Kelava we reiter-
ated the importance of a plea showing reasonable reliance in applying the
retroactivity analysis of St. Cyr: “We have cabined St. Cyr to the plea con-
text, because of the alien’s reliance on existing law in that situation.” Id.
at 629.
11680 GARCIA-RAMIREZ v. GONZALES
have unforseen negative consequences for the immigration
laws.7
Mendiola-Sanchez supports our denial of the petition with-
out reaching Landgraf’s second step. However, were we to
reach the second step, I would still deny the petition because
the application of the 90/180-day rule would not have an “im-
permissible retroactive effect.”
7
For example, during the pendency of our deliberations on this matter
Congress enacted the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat.
231. The REAL ID Act alters several provisions of the Immigration and
Nationality Act, amending the INA provisions governing our judicial
review as well as amending certain standards governing asylum and other
forms of relief from removal, including burdens of proof, testimonial cor-
roboration, credibility determinations, and the definition of terrorist orga-
nizations and terrorist related activities. See, e.g., 8 U.S.C. § 1252(a) as
amended by § 106(a) of the REAL ID Act, 119 Stat. 305, 310; 8 U.S.C.
§ 1158(b) as amended by § 101(a)(3), (c), and (d)(2) of the REAL ID Act,
119 Stat. 302, 303; 8 U.S.C. § 1182(a)(3)(B) as amended by § 103 of the
REAL ID Act, 119 Stat. 306-309.
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44 U.S. 266 (1845)
3 How. 266
ROBERT WHITE, PLAINTIFF IN ERROR,
v.
WILLIAM S. NICHOLLS, WILLIAM ROBINSON, OTHO M. LINTHICUM, EDWARD M. LINTHICUM, RAPHAEL SEMMES, PAUL STEVENS, AND CHARLES C. FULTON, DEFENDANTS IN ERROR.
ROBERT WHITE, PLAINTIFF IN ERROR,
v.
HENRY ADDISON, DEFENDANT IN ERROR.
Supreme Court of United States.
*278 May and R. Brent, for the plaintiff in error.
Bradley and Coxe, for the defendants in error.
May, for plaintiff in error.
*284 Mr. Justice DANIEL delivered the opinion of the court.
In the investigation of these cases it is deemed unnecessary to examine seriatim the five bills of exceptions sealed by the Circuit Court, and made parts of the record in each of them. The papers declared upon as libellous, and the instructions asked of the Circuit Court, are literally the same in both actions; the reasons, too, which influenced the decision of the court pervade the whole of these instructions, and are presented upon their face.
Before proceeding more particularly to consider the rulings of the court upon these instructions, it may be proper to animadvert upon a point of pleading which was incidentally raised in the argument for the defendants in error; which point was this: that, assuming the publication declared on as a libel to be one which would be prima facie privileged, the circumstances which would render it illegal, in other words, the malice which prompted it, must be expressly averred. Upon this point the court will observe, in the first place, that in cases like the one supposed in argument, they hold, that in describing the act complained of the word "maliciously" is not indispensable to characterize it; they think that the law is satisfied with words of equivalent power and import: thus, for instance, the word "falsely" has been held to be sufficiently expressive of a malicious intent, as will be seen in the authorities cited 2 Saund. 242 a, (note 2.) But the declaration in each of these cases charges the defendants, in terms, with maliciously and wickedly intending to injure the plaintiff in his character, and thereby to effect his removal from office, and the appointment of one of the defendants in his stead; and with that view, with having falsely, wickedly, and maliciously composed and published, and having caused to be composed and published, a false, malicious, and defamatory libel concerning the plaintiff, both as a citizen and an officer. The averments in these declarations appear to the court, in point of fact, to be full up to the requirement insisted on, and to leave no room for the criticism attempted with respect to them. But the defence set up for the defendants in error reaches much farther and to results infinitely higher *285 than any thing dependent upon a mere criticism upon forms of pleading. It involves this issue, so important to society, viz.: How far, under an alleged right to examine into the fitness and qualifications of men who are either in office or are applicants for office or, how far, under the obligation of a supposed duty to arraign such men either at the bar of their immediate superiors or that of public opinion, their reputation, their acts, their motives or feelings may be assailed with impunity how far that law, designed for the protection of all, has placed a certain class of citizens without the pale of its protection? The necessity for an exclusion like this, it will be admitted by all, must indeed be very strong to justify it: it will never be recognised for trivial reasons, much less upon those that may be simulated or unworthy. If we look to the position of men in common life, we see the law drawing providently around them every security for their safety and their peace. It not only forbids the imputation to an individual of acts which are criminal and would subject him to penal infliction; but, regarding man as a sympathetic and social creature, it will sometimes take cognisance of injuries affecting him exclusively in that character. It will accordingly give a claim to redress to him who shall be charged with what is calculated to exclude him from social intercourse; as, for instance, with being the subject of an infectious, loathsome, and incurable disease. The principle of the law always implying injury, wherever the object or effect is the exposure of the accused to criminal punishment or to degradation in society. These guardian provisions of the law, designed, as we have said, for the security and peace of persons in the ordinary walks of private life, appear in some respects to be extended still farther in relation to persons invested with official trusts. Thus it is said that words not otherwise actionable, may form the basis of an action when spoken of a party in respect of his office, profession, or business: Ayston v. Blagrave, Strange, 617, and 2 Ld. Raym. 1369. Again, in Lumby v. Allday, 1 Crompt. & Jarv. 301, where words are spoken of a person in an office of profit, which have a natural tendency to occasion the loss of such office, or which impute misconduct in it, they are actionable. And this principle embraces all temporal offices of profit or trust, without limitation: 1 Starkie on Slander, 124.
With regard to that species of defamation which is effected by writing or printing, or by pictures and signs, and which is technically denominated libel, although in general the rules applicable to it are the same which apply to verbal slander, yet in other respects it is treated with a sterner rigour than the latter; because it must have been effected with coolness and deliberation, and must be more permanent and extensive in its operation than words, which are frequently the offspring of sudden gusts of passion, and soon may be buried in oblivion: Rex v. Beau, 1 Ld. Raym. 414. It follows, therefore, that actions may be maintained for defamatory words published *286 in writing or in print, which would not have been actionable if spoken. Thus, to publish of a man in writing, that he had the itch and smelt of brimstone, has been held to be a libel. Per Wilmot, C.J., in Villers v. Mousley, 2 Wils. 403. In Cropp v. Hilney, 3 Salk., Holt, C.J., thus lays down the law: "That scandalous matter is not necessary to make a libel; it is enough if the defendant induce a bad opinion to be had of the plaintiff, or make him contemptible or ridiculous." And Bayley, J., declares in McGregor v. Thwaites, 3 Barn. & Cres. 33, that "an action is maintainable for slander either written or printed, provided the tendency of it be to bring a man into hatred, contempt, or ridicule." To the same effect are the decisions in 6 Bingh. 409, The Archbishop of Tuam v. Robeson; and in 4 Taunt. 355, Thorley v. The Earl of Kerry. In every instance of slander, either verbal or written, malice is an essential ingredient: it must in either be expressly or substantially averred in the pleadings; and whenever thus substantially averred, and the language, either written or spoken, is proved as laid, the law will infer malice until the proof, in the event of denial, be overthrown, or the language itself be satisfactorily explained. The defence of the defendants in error, the defendants likewise in the Circuit Court, is rested upon grounds forming, it is said, an established exception to the rule in ordinary actions for libel; grounds on which the decision of the Circuit Court is defended in having excluded from the jury, under the declarations in these cases, the writings charged in them as libellous. These writings were offered as evidence of express malice in the defendants. The exception relied on belongs to a class which, in the elementary treatises, and in the decisions upon libel and slander, have been denominated privileged communications or publications. We will consider, in the first place, the peculiar character of such communications, and the extent of their influence upon words or writings as to which, apart from that character, the law will imply malice. Secondly, we will examine the burden or obligation imposed by the law upon the party complaining to remove presumptions which might seem to be justified by the occasion of such communications, and to develope their true nature. And lastly, we will compare the requirements of the law with the character of the publication before us, and with the proceedings of the Circuit Court in reference thereto. The exceptions found in the treatises and decisions before alluded to are such as the following: 1. Whenever the author and publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral; or in the prosecution of his own rights or interests. For example, words spoken in confidence and friendship, as a caution; or a letter written confidentially to persons who employed A. as a solicitor, conveying charges injurious to his professional character in the management of certain concerns which they had intrusted to him, and in which the writer of the letter was also interested, *287 2. Any thing said or written by a master in giving the character of a servant who has been in his employment. 3. Words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used. 4. Publications duly made in the ordinary mode of parliamentary proceedings, as a petition printed and delivered to the members of a committee appointed by the House of Commons to hear and examine grievances.
But the term "exceptions," as applied to cases like those just enumerated, could never be interpreted to mean that there is a class of actors or transactions placed above the cognisance of the law, absolved from the commands of justice. It is difficult to conceive how, in society where rights and duties are relative and mutual, there can be tolerated those who are privileged to do injury legibus soluti; and still more difficult to imagine, how such a privilege could be instituted or tolerated upon the principles of social good. The privilege spoken of in the books should, in our opinion, be taken with strong and well-defined qualifications. It properly signifies this, and nothing more. That the excepted instances shall so far change the ordinary rule with respect to slanderous or libellous matter, as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice, either by the construction of the spoken or written matter, or by facts and circumstances connected with that matter, or with the situation of the parties, adequate to authorize the conclusion. Thus in the case of Cockayne v. Hodgkisson, 5 Car. & Pa. 543, we find it declared by Parke, Baron, "That every wilful and unauthorized publication injurious to the character of another is a libel; but where the writer is acting on any duty legal or moral, towards the person to whom he writes, or is bound by his situation to protect the interests of such person, that which he writes under such circumstances is a privileged communication, unless the writer be actuated by malice." So in Wright v. Woodgate, 2 Crompton, Meeson & Roscoe, 573, it is said, "a privileged communication means nothing more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact; but not of proving it by extrinsic evidence only; he has still a right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is evidence of malice on the face of it." In regard to the second example mentioned, viz., that of a master giving the character of a servant, although this is a privileged communication, it is said by Lord Mansfield in Weatherstone v. Hawkins, 1 T.R. 110, and by Parke, J., in Child v. Affleck, 9 Barn. & Cres. 406, that if express malice be shown, the master will not be excused. And the result of these authorities, with many others which bear upon this head is this, that if the conduct of the defendant entirely consists *288 of an answer to an inquiry, the absence of malice will be presumed, unless the plaintiff produces evidence of malice; but if a master unasked, and officiously, gives a bad character to a servant, or if his answer be attended with circumstances from which malice may be inferred, it will be a question for the jury to determine, whether he acted bona fide or with malice.
With respect to words used in a course of judicial proceeding, it has been ruled that they are protected by the occasion, and cannot form the foundation of an action of slander without proof of express malice; for it is said that it would be matter of public inconvenience, and would deter persons from preferring their complaints against offenders, if words spoken in the course of their giving or preferring their complaint should be deemed actionable; per Lord Eldon in Johnson v. Evans, 3 Esp. 32: and in the case of Hodgson v. Scarlett, 1 Barn. & Ald. 247, it is said by Holroyd, J., speaking of the words of counsel in the argument of a cause, "If they be fair comments upon the evidence, and relevant to the matter in issue, then unless malice be shown, the occasion justifies them. If, however, it be proved that they were not spoken bona fide, or express malice be shown, then they may be actionable." Abbot, J., in the same case remarks, "I am of opinion that no action can be maintained unless it can be shown that the counsel availed himself of his situation maliciously to utter words wholly unjustifiable." In relation to proceedings in courts of justice, it has been strongly questioned whether, under all circumstances, a publication of a full report of such proceedings will constitute a defence in an action for a libel. In the case of Curry v. Walter, 1 Bos. & Pul. 525, it was held that a true report of what passed in a court of justice was not actionable. The same was said by Lord Ellenborough in Rex v. Fisher, 2 Camp. 563; but this same judge in Rex v. Crevy, 1 M. & S. 273, and Bayley, J., in Rex v. Carlisle, dissented from this doctrine as laid down in Curry v. Walter, observing that it must be understood with very great limitations; and by Tindal, C.J., in the case of Delegal v. Highly, 3 Bing. N.C. 690, it is said "to be an established principle upon which the privilege of publishing the report of any judicial proceeding is admitted to rest, that such report must be strictly confined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter whatsoever in addition to what forms strictly and properly the legal proceedings." So a publication of the result of the evidence is not privileged; the evidence itself must be published. Neither is a publication of a counsel's speech unaccompanied by the evidence. Lewis v. Walter, 4 Barn. & Ald. 605; Flint v. Pike, Ibid. 473.
Publications duly made in the ordinary course of parliamentary proceedings have been ruled to be privileged, and therefore not actionable. As where a false and scandalous libel was contained in *289 a petition which the defendant caused to be printed and delivered to the members of the committee appointed by the House of Commons to hear and examine grievances, it was held not to be actionable. Such appears to be the doctrine ruled in Lake v. King, 1 Saund. 163; and the reason there assigned for this doctrine is, that the libel was in the order and course of proceedings in the Parliament, which is a court. The above case does certainly put the example of a privileged communication more broadly than it has been done by other authorities, and it seems difficult, from its very comprehensive language, to avoid the conclusion, that there might be instances of privilege which could not be reached even by the clearest proof of express malice. The point, however, appearing to be ruled by that case, is so much in conflict with the current of authorities going to maintain the position that express malice cannot be shielded by any judicial forms, that the weight and number of these authorities should not, it is thought, be controlled and even destroyed by the influence of a single and seemingly anomalous decision. The decision of Lake v. King should rather yield to the concurring opinions of numerous and enlightened minds, resting as they do upon obvious principles of reason and justice. The exposition of the English law of libel given by Chancellor Kent in the second volume of his Commentaries, part 4th, p. 22, we regard as strictly coincident with reason as it is with the modern adjudications of the courts. That law is stated by Chancellor Kent, citing particularly the authority of Best, J., in the case of Fairman v. Ives, 5 Barn. & Ald. 642, to the following effect: "That petitions to the king, or to parliament, or to the secretary of war, for redress of any grievance, are privileged communications, and not actionable libels, provided the privilege is not abused. But if it appear that the communication was made maliciously, and without probable cause, the pretext under which it was made aggravates the case, and an action lies." It is the undoubted right we know of every citizen to institute criminal prosecutions, or to exhibit criminal charges before the courts of the country; and such prosecutions are as much the regular and appropriate modes of proceeding as the petition is the appropriate proceeding before parliament yet it never was denied, that a prosecution with malice, and without probable cause, was just foundation of an action, though such prosecution was instituted in the appropriate court, and carried on with every formality known to the law. The parliament, it is said, is a court, and it is difficult to perceive how malicious and groundless prosecutions before it can be placed on a ground of greater impunity than they can occupy in another appropriate forum. The case of Lake v. King, therefore, interpreted by the known principles of the law of libel, would extend the privilege of the defendant no farther than to require as to him proof of actual malice. A different interpretation would establish, as to such a case, a rule that is perfectly anomalous, and *290 depending upon no reason which is applicable to other cases of privilege.
By able judges of our own country, the law of libel has been expounded in perfect concurrence with the doctrine given by Chancellor Kent. Thus, in the case of the Commonwealth v. Clap, 4 Mass. Rep. 169, it is said by Parsons, C.J., "that a man may apply by complaint to the legislature to remove an unworthy officer; and if the complaint be true, and made with honest intentions of giving information, and not maliciously, or with intent to defame, the complaint will not be a libel. And when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the office; and publications of the truth on this subject, with the honest intention of informing the people, are not a libel; for it would be unreasonable to conclude, that the publication of truths, which it is the interest of the people to know, should be an offence against their laws. For the same reason, the publication of falsehood and calumny against public officers, or candidates for public offices, is an offence dangerous to the people, and deserves punishment, because the people may be deceived, and reject their best citizens, to their great injury, and, it may be, to the loss of their liberties. The publication of a libel maliciously, and with intent to defame, whether it be true or not, is clearly an offence against law on sound principles, &c."
In the case of Bodwell v. Osgood, 3 Pick. Rep. 379, it was ruled, that a false complaint, made with express malice, or without probable cause, to a body having competent authority to redress the grievance complained of, may be the subject of an action for a libel, and the question of malice is to be determined by the jury. The court in this last case say, p. 384, "It may be admitted, that if the defendant had proceeded with honest intentions, believing the accusation to be true, although in fact it was not, he would be entitled to protection, and that the occasion of the publication would prevent the legal inference of malice." The court proceed further to remark, p. 385: "It has been argued that the jury should have been instructed, that the application to a tribunal competent to redress the supposed grievance was prima facie evidence that the defendant acted fairly, and that the burden of proof was on the plaintiff to remove the presumption. The judge was not requested thus to instruct the jury. He did, however, instruct them that the burden of proof was on the plaintiff to satisfy them that the libel was malicious, and that if the plaintiff did not prove the malice beyond any reasonable doubt, that doubt should be in favor of the defendant."
We have thus taken a view of the authorities which treat of the doctrines of slander and libel, and have considered those authorities *291 particularly with reference to the distinction they establish between ordinary instances of slander, written and unwritten, and those which have been styled privileged communications; the peculiar character of which is said to exempt them from inferences which the law has created with respect to those cases that do not partake of that character. Our examination, extended as it may seem to have been, has been called for by the importance of a subject most intimately connected with the rights and happiness of individuals, as it is with the quiet and good order of society. The investigation has conducted us to the following conclusions, which we propound as the law applicable thereto. 1. That every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, or odious, or ridiculous, is prima facie a libel, and implies malice in the author and publisher towards the person concerning whom such publication is made. Proof of malice, therefore, in the cases just described, can never be required of the party complaining beyond the proof of the publication itself: justification, excuse, or extenuation, if either can be shown, must proceed from the defendant. 2. That the description of cases recognised as privileged communications, must be understood as exceptions to this rule, and as being founded upon some apparently recognised obligation or motive, legal, moral, or social, which may fairly be presumed to have led to the publication, and therefore prima facie relieves it from that just implication from which the general rule of the law is deduced. The rule of evidence, as to such cases, is accordingly so far changed as to impose it on the plaintiff to remove those presumptions flowing from the seeming obligations and situations of the parties, and to require of him to bring home to the defendant the existence of malice as the true motive of his conduct. Beyond this extent no presumption can be permitted to operate, much less be made to sanctify the indulgence of malice, however wicked, however express, under the protection of legal forms. We conclude then that malice may be proved, though alleged to have existed in the proceedings before a court, or legislative body, or any other tribunal or authority, although such court, legislative body, or other tribunal, may have been the appropriate authority for redressing the grievance represented to it; and that proof of express malice in any written publication, petition, or proceeding, addressed to such tribunal, will render that publication, petition, or proceeding, libellous in its character, and actionable, and will subject the author and publisher thereof to all the consequences of libel. And we think that in every case of a proceeding like those just enumerated, falsehood and the absence of probable cause will amount to proof of malice.
The next and the only remaining question necessary to be considered in these cases, is that which relates to the rulings of the *292 court below excluding the publication declared upon as a libel from going to the jury in connection with other evidence to establish the existence of malice. We forbear any remark upon the intrinsic character of the injury complained of, or upon the extent to which it may have been made out. These are matters not properly before us. But if the publication declared upon was to be regarded as an instance of privileged publications, malice was an indispensable characteristic which the plaintiff would have been bound to establish in relation to it. The jury, and the jury alone, were to determine whether this malice did or did not mark the publication. It would appear difficult à priori to imagine how it would be possible to appreciate a fact whilst that fact was kept entirely concealed and out of view. This question, however, need not at the present time be reasoned by the court; it has, by numerous adjudications, been placed beyond doubt or controversy. Indeed, in the very many cases that are applicable to this question, they almost without an exception concur in the rule, that the question of malice is to be submitted to the jury upon the face of the libel or publication itself. We refer for this position to Wright v. Woodgate, 2 Crompton, Mees. & Ros. 573; to Fairman v. Ives, 5 Barn. & Ald. 642; Robinson v. May, 2 Smith, 3; Flint v. Pike, 4 Barn. & Cres. 484, per Littledale, J.; Ib. 247, Bromage v. Prosser; Blake v. Pilford, 1 Mood. & Rob. 198; Parmeter v. Coupland, 6 Mees. & Welby, 105; Thomson v. Shackell, 1 Moo. & Mal. 187. Other cases might be adduced to the same point.
Upon the whole we consider the opinion of the Circuit Court, in the several instructions given by it in these cases, to be erroneous. We therefore adjudge that its decision be reversed; that these causes be remanded to the said court, and that a venire facias de novo be awarded to try them in conformity with the principles herein laid down.
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127 F.2d 875 (1942)
COMMISSIONER OF INTERNAL REVENUE
v.
LAMONT.
No. 201.
Circuit Court of Appeals, Second Circuit.
April 24, 1942.
Carolyn Agger, Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch and Michael H. Cardozo IV, Sp. Assts. Atty. Gen., all of Washington, D. C., for petitioner.
Winthrop, Stimson, Putnam & Roberts, of New York City (Percy W. Crane, of New York City, of counsel), for respondent.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
The question presented by this appeal is whether the 1935 income of two trusts created by the respondent is taxable to her under the provisions of section 22(a) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev. Acts, page 669. The trusts were originally set up in 1928 and 1931, respectively, and each was for a term of approximately one year unless terminated earlier by the settlor's death. The term of each trust was successively extended year by year by written extensions of approximately one year each. Upon termination the trust corpus was to revert to the settlor or, if the trust were dissolved by her death, to her estate. The trust income was to be distributed in the discretion of the trustee among specified charitable institutions and individuals. The individual beneficiaries were adult persons who were not members of the settlor's household nor closely related to her three of them were her first cousins and to none of whom did she owe any legal duty of support. The trustee was a personal friend who had served her as attorney and financial adviser for many years. Both trusts were admittedly created for the purpose of minimizing the settlor's tax burden by means of excluding from her taxable income the trust income distributed to the individual beneficiaries, or increasing the exemption for gifts to charitable institutions. By the terms of the trust deeds the trustee had complete powers of management, sale and reinvestment of the trust corpus; the settlor, however, reserved the power to withdraw any of the securities held in trust upon substituting others of equivalent value. While the trustee had absolute discretion in the matter of distributing the trust income among the named beneficiaries, the distributions made by him have in fact generally been in accord with the settlor's wishes. Toward the end of each year he would ascertain from her what payments she had made on her own account to certain of the charitable institutions and individual beneficiaries, so that he might "supplement" what she had done, and from time to time she would ascertain what income he had distributed; but the trustee was entirely free to make distributions to any of the benficiaries without consulting her. In the year 1935 the trustee distributed the entire net income of the 1928 trust to Lamont Memorial Library. Part of the 1935 income of the 1931 trust was distributed to two of the cousins and part was retained for future distribution and was reported by the trustee as taxable to him. The commissioner determined that no tax was owing by the trustee and surcharged the respondent's return by including in her gross income the taxable income *876 of both trusts. This resulted in the deficiency which the Board expunged.
The Board was of the opinion that the rule of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, was inapplicable because neither the trustee nor the beneficiaries were members of the settlor's family group, and that the commissioner's contention that the trusts really constituted merely assignments of income could not prevail in the face of Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465. With neither conclusion are we able to agree. Disregarding technical considerations of the law of property and trusts, as we are constrained to do under recent Supreme Court decisions, it seems clear that the extension of the trusts from January 10, 1935, to January 10, 1936, did not affect any substantial change in the settlor's actual control over corpus or income of the securities held by the trustee. Though lacking legal power to control his discretion, there is little doubt that she could have her way in directing the disposition of income between the possible beneficiaries. Cf. Commissioner v. Barbour, 2 Cir., 122 F.2d 165, 167. She also retained substantial control over investment by her power to substitute securities of her own choosing for those comprising the corpus of the trust. As the trust was to last but a year (or less in case of her death) it was in effect but an "anticipatory arrangement" by which she gave away the income to accrue on securities which she continued to own through retention of the reversion. See Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655; Harrison v. Schaffner, 312 U.S. 579, 61 S.Ct. 759, 85 L.Ed. 1055. In the case last cited, where the life beneficiary of a testamentary trust "assigned" to her children specified amounts out of the income of the trust for the year following the assignment, it was held that the amounts assigned were taxable income to the assignor. The decision did not turn on the fact that the assignees were children of the assignor, and the opinion clearly intimates, 312 U.S. at page 583, 61 S.Ct. at page 762, 85 L.Ed. 1055, that "a gift of income in a specified amount by the creation of a trust for a year" would have been equally ineffectual in avoiding the tax. In the light of the Supreme Court decisions we think the order of the Board must be reversed. It is true that in Helvering v. Achelis, 2 Cir., 112 F.2d 929, we expressed the view that by setting up a four year trust for a charitable institution the settlor had effectually parted with the income; and we so held in Commissioner v. Chamberlain, 2 Cir., 121 F.2d 765. Whether those cases can survive the recent pronouncements of the Supreme Court we need not now determine. They are at least distinguishable from the case at bar because of the shortness of the term and differences in provisions of the trust instruments now under consideration.
Order reversed.
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821 So.2d 685 (2002)
BOSSIER ELECTRIC, Appellant
v.
George CUBLEY, Appellee.
George Cubley, Appellee
v.
Bossier Electrical Contractors, Inc., Appellant.
Nos. 35,852-WCA, 35,853-WCA.
Court of Appeal of Louisiana, Second Circuit.
June 14, 2002.
*686 Christopher R. Phillip, for Appellant.
William R. Long, Shreveport, for Appellee.
Before NORRIS, WILLIAMS and PEATROSS, JJ.
*687 WILLIAMS, Judge.
In this worker's compensation case, the employer, Bossier Electrical Contractors, Inc., appeals a judgment finding that the claimant, George Cubley, was entitled to temporary total disability benefits and supplemental earnings benefits, subject to a credit for the employer's prior payments. The worker's compensation judge denied the employer's claim for forfeiture and reimbursement of benefits paid and assessed penalties and attorney fees. For the following reasons, we reverse in part and affirm in part.
FACTS
The claimant began working as an electrician at Bossier Electrical Contractors, Inc. ("BEC") in April 1998. At that time, he completed an employee health questionnaire and did not list all of his prior surgical procedures. Claimant had been previously diagnosed with carpal tunnel syndrome and had undergone surgery on his left wrist in 1997. Despite this condition, claimant had been able to perform his duties as an electrician.
On August 12, 1999, claimant injured his left elbow pulling cable through a conduit while working for BEC at a college in Shreveport. The claimant did not seek medical treatment at the time and continued working until October 25, 1999, when he was terminated due to a reduction in BEC's workforce. On that same date, claimant saw Dr. Marion Milstead for treatment of his left elbow injury and the resulting aggravation of his carpal tunnel condition.
On December 16, 1999, BEC began paying the claimant temporary total disability (TTD) benefits at the maximum rate of $384 per week, retroactive to the date of November 11, 1999. BEC mistakenly paid claimant TTD benefits of $367 for the week of May 7-13, 2000, an under payment of $17. Thereafter, BEC resumed TTD payments of $384 weekly through October 28, 2000.
The claimant began working as an electrical inspector for the City of Shreveport on October 16, 2000, with an annual salary of $25,132. BEC began paying claimant supplemental earnings benefits (SEB) on December 1, 2000, based on his new salary. BEC did not pay SEB for the period of October 28, 2000, when the TTD payments ended, through November 30, 2000.
In December 1999, BEC filed a claim for forfeiture of claimant's benefits and reimbursement for compensation paid, contending that claimant failed to truthfully answer the health questionnaire and that he made false statements to obtain benefits in violation of LSA-R.S. 23:1208.1 and 23:1208. Claimant filed a claim alleging that BEC had failed to authorize medical treatment for his left elbow and failed to timely pay disability benefits. The claimant also sought penalties and attorney fees. The matters were consolidated for trial.
After a hearing, the worker's compensation judge (WCJ) issued oral reasons for judgment, finding that claimant had not violated the statutory forfeiture provisions and that he was entitled to medical treatment related to his left elbow injury. The WCJ rendered judgment ordering BEC to pay claimant the $17 shortage in TTD benefits and awarding claimant SEB of $642.31 for the period of October 16, 2000 through November 30, 2000, subject to a credit for TTD already paid by BEC. The WCJ assessed a penalty of $2,000 for BEC's failure to timely pay benefits and awarded claimant $4,000 in attorney fees. BEC filed a motion to modify the judgment to reflect the WCJ's finding that BEC was entitled to a credit for compensation paid prior to the disability date. *688 After a hearing, the WCJ rendered an amended judgment adding a clause that BEC was entitled to a credit for any TTD benefits paid prior to December 6, 1999, the date of claimant's disability from work. BEC appeals the judgment.
DISCUSSION
BEC contends the WCJ erred in finding that claimant was entitled to receive compensation benefits. BEC argues that claimant forfeited his right to benefits by failing to truthfully answer the health questionnaire.
A work injury subsequent to a known permanent partial disability qualifies an employer to seek reimbursement for worker's compensation benefits from a statutorily designated second injury fund under certain circumstances. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214. A claimant's untruthful statement regarding his permanent partial disability that prejudices an employer's ability to seek reimbursement from the fund gives rise to an affirmative defense, whereby the injured employee forfeits all compensation benefits. Wise, supra. A permanent partial disability (PPD) is defined as any permanent condition, whether due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment. LSA-R.S. 23:1378(F).
An employer may inquire about previous injuries, disabilities or other medical conditions and the employee shall answer truthfully. LSA-R.S. 23:1208.1. Failure to answer truthfully shall result in the employee's forfeiture of benefits, provided that said failure directly relates to the medical condition on which the claim for benefits is based or affects the employer's ability to receive reimbursement from the second injury fund. The written form inquiring about past medical conditions must contain a notice advising the employee that failure to answer truthfully may result in forfeiture. LSA-R.S. 23:1208.1.
Thus, the statute provides for forfeiture under narrow circumstances: there must be an untruthful statement, prejudice to the employer and compliance with the notice requirements of the statute. Wise, supra. The penalty of forfeiture will be imposed only when the employer is prejudiced, i.e., when the false statement directly relates to the medical condition on which the claim for benefits is based or affects the employer's ability to receive reimbursement from the second injury fund. Resweber v. Haroil Construction Co., 94-2708 (La.9/5/95), 660 So.2d 7. The employer has the burden of proving each element of the statute. Forfeiture of benefits is a harsh remedy and the statute should be strictly construed. Wise, supra.
In the present case, the claimant was required to complete BEC's form entitled "Health Questionnaire" as part of the hiring process. Near the top of the first page, the form asked "Do you have or have you ever had any of the following?" The form contained an extensive list of medical conditions to which the employee was to mark "yes" or "no." Following this list were seven additional medical inquiries. At the bottom of the second page was a notice cautioning that the failure to answer truthfully could result in forfeiture of benefits.
In his responses, claimant wrote "yes," to a question asking if he had ever received treatment for a neck condition. When asked about prior surgery, he wrote "yes neck." In reply to a question about having any physical impairments or disabilities, claimant responded "neck surgery in 1988." He answered the question, "Have you ever had a worker's compensation injury?" by writing "Yes, nothing but *689 x-rays." Claimant responded "no" to another question: "Have you ever received compensation or medical benefits under worker's compensation?"
In considering the questionnaire answers provided by claimant, we note that he reported his prior neck surgery and replied yes to the vague question of whether he had sustained a prior "worker's compensation injury." Claimant explained that he did not report his left wrist surgery because he had not missed any scheduled work, but took a personal leave day for the procedure. In addition, Dr. Milstead testified in his deposition that the treating physician at the time had classified the claimant's carpal tunnel surgery as "personal," and not as a worker's compensation claim.
When asked why he answered no to having received compensation or medical benefits, claimant testified that he did not consider the prior neck and right elbow injuries as worker's compensation claims because he did not receive any disability benefits. Instead, the doctors were paid directly by the employer. The claimant also stated that because of the language used, he thought the question referred to him having received "money in my pocket," and that at the time he had not received worker's compensation disability payments.
The record shows that the health form's questions were not narrowly tailored to meet BEC's need to become informed about a PPD of the claimant. The questionnaire did not define any of the terms used and the general nature of the questions left their interpretation to the claimant, who stated that he answered the questions quickly before starting work. The claimant testified that no one told him these questions were very important and that he needed to take time to study them before answering, but that he had answered "as truthfully as I knew how" and to the best of his ability.
Delmar Monroe, an owner of BEC, and Richard Roberts, the foreman, stated that they had reviewed the questionnaire, but did not follow up with claimant about any of his answers. Although claimant's answers to some questions were ambiguous, BEC representatives never asked him about his responses and did not seek to clarify any ambiguity. BEC bore the burden of proving that the claimant gave false answers. Absent an attempt to obtain an explanation of ambiguous answers, BEC failed to demonstrate that the claimant knowingly gave an untruthful answer for which forfeiture is justified. Consequently, based upon this record, we cannot say the WCJ erred in concluding that claimant did not violate Section 1208.1.
Even if we were to assume arguendo that claimant made a false statement, BEC was required to prove that claimant's failure to report carpal tunnel syndrome was prejudicial, in that the failure "directly related" to the condition which is the basis for the compensation claim or affected BEC's ability to recover from the second injury fund. A direct relation is shown when the subsequent injury was inevitable or very likely to occur because of the pre-existing condition.
Here, Dr. Milstead testified in his deposition that the claimant's carpal tunnel, ulnar nerve problems and the tennis elbow were individual and separate problems, each of which could be caused by his work activity. Dr. Milstead indicated that a person can have one of the problems without the others. Thus, the testimony does not demonstrate that claimant's left elbow injury was inevitable or very likely to occur as a result of his existing carpal tunnel condition. Consequently, the evidence does not show that the undisclosed carpal *690 tunnel syndrome was directly related to the left elbow injury, which is the basis of the claim for benefits.
In order to be reimbursed by the second injury fund, an employer is required to prove that a claimant has a PPD, defined in LSA-R.S. 23:1378(F) as any permanent condition of such seriousness as to constitute a hindrance or obstacle to obtaining employment. The employer must also show that it possessed actual knowledge of the PPD prior to the current injury and that the PPD merged with the subsequent injury to cause a greater disability than would otherwise have resulted. Wise, supra.
Here, BEC filed a claim for reimbursement with the Second Injury Board, which found that the evidence failed to show that claimant's condition met the definition of PPD in Section 1378(F). The Board further found that even if claimant did have a PPD, it would not have merged with the subsequent injury of August 1999 to cause a greater disability. Consequently, the Board denied BEC's claim. The WCJ noted that BEC had not appealed this decision.
Based upon the evidence presented, we cannot say the WCJ was clearly wrong in accepting the Board's determination that claimant's carpal tunnel condition did not meet the definition of PPD, and in finding that as a result, the claimant's failure to provide carpal tunnel information did not affect BEC's ability to receive reimbursement from the second injury fund. Thus, BEC failed to establish that it was prejudiced on the basis that the excluded medical information either directly related to the injury that is the subject of the claim or affected BEC's ability to recover from the second injury fund. Because BEC did not meet its burden of proving each element required by Section 1208.1, forfeiture cannot occur. The assignment of error lacks merit.
BEC next contends that the WCJ erred in finding that claimant did not make a false statement to obtain worker's compensation benefits. It is unlawful for a person to make a false statement or representation for the purpose of obtaining or defeating any worker's compensation claim. LSA-R.S. 23:1208(A). Any employee who makes such a willful false statement shall, upon determination by the WCJ, forfeit any right to worker's compensation benefits. LSA-R.S. 23:1208(E); Heckel Logging Inc. v. Pruitt, 33,314 (La. App.2d Cir.5/10/00), 759 So.2d 1044.
In the present case, Regina Patterson, the claims adjuster for BEC's insurer, testified that she obtained a lengthy recorded statement from the claimant. Patterson stated that they discussed the claimant's medical history and that he had informed her about his previous carpal tunnel surgery.
Lisa Anderson was assigned by Patterson as the case manager for the claimant's medical care. Anderson testified that the claimant told her about his previous carpal tunnel release procedure and neck surgery. Anderson stated that she also spoke with the claimant at the office of Dr. Knight, who was treating claimant's left elbow injury. Anderson testified that she did not have the impression that claimant was trying to withhold any medical information.
Whether the claimant forfeited the right to worker's compensation benefits is a question of fact that will not be disturbed on appeal absent manifest error. KLLM Inc. v. Reed, 00-295 (La.App. 3rd Cir.10/11/00), 771 So.2d 728. The WCJ considered the evidence that claimant advised Patterson and Anderson of his previous medical treatment and accepted his *691 explanation that his failure to inform BEC about each of his prior surgical procedures was inadvertent. Based upon this record, the WCJ could reasonably have found that the claimant's non-disclosure of prior injuries and treatment was not a deliberate misrepresentation made for the purpose of obtaining worker's compensation benefits. Consequently, we cannot say the WCJ was clearly wrong in finding that the claimant did not violate Section 1208 and that forfeiture was not warranted. The assignment of error lacks merit.
BEC also contends the WCJ erred in awarding penalties and attorney fees. BEC argues that its mistaken failure to pay $17 in TTD benefits and $642 in SEB was not arbitrary since the amounts did not exceed the credit due BEC for overpayments.
The payment of SEB is due on the fourteenth day after an employer or insurer has knowledge of the compensable SEB. LSA-R.S. 23:1201(C). Failure to pay timely subjects the liable party to a penalty together with reasonable attorney fees, unless the claim is reasonably controverted or if such nonpayment results from conditions beyond the defendant's control. LSA-R.S. 23:1201(F)(2). Reasonable attorney fees may be awarded if an employer or insurer acted arbitrarily, capriciously or without probable cause in discontinuing payment of benefits. LSA-R.S. 23:1201.2. These provisions are penal in nature and must be strictly construed. Davis v. Jones Baldwin Music Co., 27,545 (La.App.2d Cir.11/1/95), 662 So.2d 803.
In the present case, the parties stipulated that claimant was entitled to receive disability benefits at the maximum rate of $384 per week. BEC paid claimant TTD benefits retroactive to November 11, 1999. The WCJ found that claimant was disabled from work as of December 6, 1999, and awarded BEC a credit for its TTD payments made prior to that date, a period of 25 days at $54.86 per day. The total credit for this period was $1,371.50. In May 2000, BEC incorrectly paid TTD of $367 for one week, a $17 shortage.
On October 16, 2000, claimant began working as an inspector for the City of Shreveport at a salary of $25,132 per year. During October 2000, claimant earned $1,047, or $65.45 per day. This amount represented a loss of earning capacity of $35 per day compared to his pre-accident earnings of $101.53 per day, for a total lost earning capacity of $561.28. Thus, for the period of October 16, 2000 through October 31, 2000, the claimant was entitled to receive SEB of $374.18 ($561.28 × 66 2/3). Instead, for the period of October 16-28, 2000, BEC paid TTD benefits of $713.18, resulting in an overpayment of benefits to claimant of $339.
The WCJ awarded claimant the amount of $17 for underpayment of TTD benefits and SEB of $642.31 for the period of November 1, 2000 through December 31, 2000, subject to a credit of $1,710.50 (1,371.50 + 339) to BEC for TTD benefits previously paid. The WCJ assessed BEC with penalties and attorney fees based upon these "unpaid" benefits.
However, the record shows that BEC has made payments of compensation benefits exceeding by $1,051 ($1710.50 - $659.31) the amounts awarded to the claimant. Thus, contrary to the WCJ's finding, the claimant was not owed any unpaid benefits when the credit awarded to BEC is taken into account. Consequently, the record does not support a finding that BEC failed to pay benefits which were due or arbitrarily discontinued such payments. Therefore, the WCJ erred in awarding penalties and attorney fees and we shall reverse that portion of the judgment.
*692 CONCLUSION
For the foregoing reasons, that part of the judgment assessing BEC with penalties of $2,000 and attorney fees of $4,000 is reversed. The judgment is otherwise affirmed. Costs of this appeal are assessed to the appellant, Bossier Electrical Contractors, Inc.
REVERSED IN PART AND AFFIRMED IN PART.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50964
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL HACKER,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
USDC No. SA-98-CR-60-9
November 6, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Michael Hacker appeals his sentencing after having pled guilty
to conspiracy to possess with intent to distribute marijuana. He
argues that the district court clearly erred (1) in its
determination of drug quantity for purposes of relevant conduct;
(2) in denying a downward adjustment in his offense level for
acceptance of responsibility; and (3) by assigning one criminal
*
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.
history point to his conviction for driving without insurance. Upon
review of the records, briefings, and applicable case law, we
conclude that the district court committed no reversible error.
Hacker failed to produce evidence sufficient to rebut both the
PSR's estimate of drug quantity and the testimony of the case
agent, upon which the PSR estimate was based. Hacker's conclusory
assertion that he made only 15 deliveries of marijuana, averaging
only 40 pounds per delivery, is insufficient to establish clear
error.1
In addition, Hacker tested positive for marijuana use on two
separate occasions while on pretrial release. Even if these
positive tests were based on Hacker's addiction to marijuana, they
support the district court's decision to deny him the acceptance-
of-responsibility adjustment.2
Finally, because the misdemeanor conviction resulted in a 60-
day sentence of imprisonment and one year of probation, the
district court did not err in applying it to a determination of
Hacker's criminal history score. Indeed, Hacker's conviction for
driving without insurance is "similar" to "[d]riving without a
1
See United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).
2
See United States v. Flucas, 99 F.3d 177, 180 (5th Cir.
1996); United States v. Rickett, 89 F.3d 224, 227-28 (5th Cir.
1996).
2
license," for purposes of U.S.S.G. § 4A1.2(c)(1).3 In light of the
preceding, Hacker's conviction and sentence are AFFIRMED.
AFFIRMED.
3
See United States v. Moore, 997 F.2d 30, 34 (5th Cir. 1993);
United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991).
3
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583 F.Supp. 642 (1984)
Kenneth C. GRIMES, Plaintiff,
v.
LOUISVILLE AND NASHVILLE RAILROAD COMPANY and Local 1353, International Brotherhood Electrical Workers, Defendants.
No. EV 81-130-C.
United States District Court, S.D. Indiana, Evansville Division.
February 10, 1984.
*643 *644 Robert F. Stayman, Evansville, Ind., for plaintiff.
F. Wesley Bowers, Evansville, Ind., Michael S. Wolly, Washington, D.C., Rodney H. Grove, Evansville, Ind., Galen J. White, Jr., Louisville, Ky., for defendants.
MEMORANDUM
BROOKS, District Judge.
Kenneth C. Grimes (Grimes) is a black male who was employed by Louisville and Nashville Railroad Company (Railroad) in February 1976 as an "electrician apprentice." He was a member of Local 1353 International Brotherhood of Electrical Workers (Union) and his terms of employment were covered by a collective bargaining agreement between the Railroad and the Union. One of the provisions of the collective bargaining agreement is that "an employee (who) has been unjustly suspended or dismissed ... shall be reinstated with his seniority rights unimpaired, and compensated for the wage loss ... resulting *645 from said suspension or dismissal." See, Rule 34 of Agreement.
In late August or early September of 1976 Grimes was involved in an altercation with a temporary supervisor concerning the installation of an electrical switch. A disciplinary hearing ensued in September 1976 at which a Union representative was present to represent Grimes but participated minimally. Subsequent to the hearing Grimes was suspended from his employment and then discharged. At the time of his dismissal, his position was that of an "upgraded electrician apprentice." After the discharge the Union processed Grimes' grievance through a hearing before the National Railroad Adjustment Board (Board).
On June 13, 1979 the Board rendered its decision and ordered the Railroad to reinstate Grimes without loss of seniority or position but without back pay. The decision explained that, while Grimes had improperly refused to obey an order from a supervisor, mitigating circumstances made dismissal an excessive form of discipline. Grimes returned to work on July 9, 1979 as an "electrician apprentice" rather than an "upgraded electrician apprentice" and although it is not entirely clear it appears that his seniority rights may have been impaired. After his return to work Grimes complained to Union representatives about his loss of position and seniority, but it appears that no action was taken.
On March 16, 1981 Grimes filed a charge of racial discrimination against the Railroad with the Equal Employment Opportunity Commission (EEOC). On March 30, 1981 Grimes was laid off and placed on furlough, a status which still existed at the time of the filing of this action. Thereafter, on June 11, 1981 Grimes filed suit against the Railroad and the Union invoking jurisdiction of this Court pursuant to 28 U.S.C. §§ 1331 and 1343.
The Complaint states five (5) claims, designated as pleading paragraphs, which are as follows:
(1) A claim against the Railroad for breach of the collective bargaining agreement arising out of Grimes' discharge, reinstatement, and subsequent furlough.
(2) A claim against the Union for breach of its duty of fair representation under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.
(3) A claim against both the Railroad and the Union for racial discrimination in employment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.
(4) A claim against both the Railroad and the Union for conspiring to deprive Grimes of his civil rights in violation of 42 U.S.C. § 1985.
(5) An appeal under 45 U.S.C. §§ 153 First (p), (g), 153, Second, of the Board decision which refused to order back pay for the period of time during which Grimes had been unemployed.
In March and April of 1982 each of the defendants filed a motion for summary judgment as to all claims made against them and as to the appeal of the Board's decision. Since defendants' motions encompass all of Grimes' claims the Court will address each claim separately and in order with the exception of the claims which are set forth in pleading paragraphs one and two which, because of their nature, are interdependent and are thus best addressed together.
BREACH OF COLLECTIVE BARGAINING AGREEMENT AND BREACH OF THE DUTY OF FAIR REPRESENTATION CLAIMS
Grimes claims that, by discharging him without just cause and then reinstating him in a lower rated position with loss of seniority and back pay, the Railroad breached the collective bargaining agreement with the Union and that the Union breached its duty of fair representation by failing to adequately and timely represent him in his disputes with the Railroad. Defendants argue that Grimes' claims should be dismissed since such claims are, based upon *646 the undisputed facts, without merit and are barred by the applicable statute of limitations. The Union relies on the two (2) year statute of limitations for actions related to employment provided for in Indiana Code § 34-1-2-1.5, while the Railroad contends that the appropriate limitations period is the ninety (90) day period provided for in Indiana Code § 34-4-2-13 which governs actions to vacate arbitration awards. Plaintiff in his response to the motions relies alternatively on the two (2) year statute of limitations set forth in the Federal Railway Labor Act, 45 U.S.C. § 153 First (R), or if the state statute of limitation is to be applied then upon Indiana Code § 34-1-2-1.5.
The United States Supreme Court recently addressed the question of what statute of limitations should apply in an employee's suit against an employer and a union alleging the employer's breach of the collective bargaining agreement and the union's breach of its duty of fair representation. Del Costello v. International Brotherhood of Teamsters, ___ U.S. ___, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In that case, the Court found that they should adopt the six (6) month statute of limitations embodied in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) for suits against both the employer and the union. This view has been followed in recent Seventh Circuit decisions. See e.g. Metz v. Tootsie Roll Industries, 715 F.2d 299 (7th Cir. 1983); Storck v. International Brotherhood of Teamsters, 712 F.2d 1194 (7th Cir. 1983). Thus, based upon the above authorities any claim which Grimes has that arose from activity prior to December 11, 1980 would be time-barred since this suit was commenced on June 11, 1981.
However, while a suit brought by an employee against an employer for breach of the collective bargaining agreement and against a union for breach of the duty of fair representation is generally brought pursuant to § 301 of the Labor Management Relations Act, the Seventh Circuit has recently found that Section 301 does not apply to employers subject to the Railway Labor Act, and that no other statute purports to give federal courts jurisdiction to enforce collective bargaining agreements with such employers. Graf v. Elgin, Joliet and Eastern Railway Company and Brotherhood of Railway Carmen, Local No. 882, 697 F.2d 771 at 774 (7th Cir.1983). The Court, in Graf did find, however, that a contract claim against an employer could be brought under a federal common law of railroad collective bargaining contract interpretation since it made sense to do so in as much as the common law was already being applied in workers' suits against unions. Id. at 776-777.
The question that the Seventh Circuit did not face in Graf (since the only issues presented dealt with the jurisdiction of the federal courts) and the one that still remains to be answered is,What is the applicable statute of limitations for an employee's suit against an employer and a union which alleges the employer's breach of the collective bargaining agreement and the Union's breach of the duty of fair representation, where the employer is not subject to § 301 of the Labor Management Relations Act?
As already noted, the Supreme Court in Del Costello held that the six (6) month statute of limitations of § 10(b) should be applied in § 301/fair representation cases. The Court therein noted that while there is no federal statute of limitations expressly applicable to this type of suit, that § 301/fair representation claims are akin to charges of unfair labor practices which are subject to the statutory limitation period of § 10(b). Thus, the Court concluded that "[t]he need for uniformity among procedures followed for similar claims ... as well as the clear congressional indication of the proper balance between the interests at stake, counsels the adoption of § 10(b) of the NLRA as the appropriate limitations period for lawsuits such as this." Id. ___ U.S. at ___, 103 S.Ct. at 2294.
This Court finds the reasoning in Del Costello to be persuasive. The Court also notes that Del Costello was decided after the Seventh Circuit's decision in Graf, and *647 that the Supreme Court did not expressly limit its decision to breach of contract/fair representation claims brought pursuant to § 301. Thus, although Grimes' claims against the Railroad and the Union can't be brought as a § 301/fair representation action, the Court is of the opinion that they are sufficiently similar to that type of action such that the six (6) month statute of limitations enunciated in Del Costello should be applied.
As noted earlier, Grimes' discharge occurred in 1976. His reinstatement came in July 1979. Both events are alleged to have been breaches of the collective bargaining agreement and the Union's duty of fair representation. From these facts, defendants argue that it is unquestionable that plaintiff's complaint as to these two events is time barred. The Court is of the opinion that defendants are correct in as much as both events occurred substantially before the limitations period that the Court has found applicable to this case. Although it is not abundantly clear from the response, Grimes, however, seems to contend that his discharge, subsequent reinstatement, and furlough constitutes a continuing series of wrongs which toll the running of any statute of limitations. Under this view since Grimes is currently furloughed the alleged breaches continue to occur and damages continue to accrue.
The Court does not agree that the "continuing violation" doctrine proposed by Grimes has application in this case. The only activity which occurred within the limitations period is Grimes' furlough in March 1981. Clearly, the simple act of being laid off due to a lack of seniority is not of itself unlawful or a breach of the collective bargaining agreement. Apparently Grimes does not dispute this fact since there is no indication that he ever filed a grievance with regard to the furlough itself, or that an effort to comply with the grievance mechanism would have been futile. Therefore, the only way in which the March 1981 furlough can be charged to be a breach of the contract is through reliance on what are alleged to be earlier breaches. However, to allow Grimes to cloak with illegality his furlough by reliance upon earlier events which are now time barred would result in the revival of what are now legally defunct claims. Local Lodge No. 1424, International Association of Machinists v. N.L.R.B., 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960); Metz v. Tootsie Roll Industries, supra.
Based upon the foregoing, the Court is of the opinion that Grimes' discharge and reinstatement claims against both defendants are barred by the limitations period set out in Del Costello. Additionally, since the alleged wrongful conduct of the defendants with regard to Grimes furlough is predicated upon the earlier events, that activity cannot constitute a "continuing violation." Nor can Grimes claim that the furlough itself is a breach of the contract, since before an employee may litigate the merits of his contract claim he must prevail on the unfair representation claim against the Union, United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), a claim which cannot be brought in this case since no grievance has ever been filed with respect to the furlough.
Therefore, defendants' motion for summary judgment as to pleading paragraphs one and two of plaintiff's complaint are hereby GRANTED.
TITLE VIIDISCRIMINATION CLAIM
Grimes contends in pleading paragraph three (3) that the defendants intentionally engaged in discriminatory employment practices on the basis of race that deprived him of the right to the same employment opportunities enjoyed by white persons. The defendant Railroad contends that in so far as Grimes' charge of discrimination is predicated upon his discharge and reinstatement that the claim is untimely because both events occurred substantially more than One Hundred Eighty (180) days prior to the complaint Grimes filed with the EEOC. As to Grimes' charge that he was furloughed in retaliation for his complaint to the EEOC the Railroad argues that since *648 no charge of retaliation has been filed with the EEOC Grimes may not assert for the first time that claim in this action. The Union's basis for summary judgment as to pleading paragraph three (3) is less complicated. It is the Union's contention that since it has never been the subject of an EEOC charge that the Court lacks jurisdiction over it as to this claim.
It should be noted that Congress has provided explicit jurisdictional requirements in Title VII cases before a plaintiff may maintain a suitSee, 42 U.S.C. § 2000e-5. First, a plaintiff must, absent exceptional circumstances, file a timely charge of discrimination with the EEOC. Second, the plaintiff must receive a right to sue letter from the EEOC and acted upon it. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Failure to satisfy both requirements deprives the Court of jurisdiction over the Title VII claimsMovement For Opportunity, Etc. v. General Motors, 622 F.2d 1235 (7th Cir.1980); Gibson v. Kroger Co., 506 F.2d 647 (7th Cir. 1974).
In the case sub judice Grimes has failed to allege in his complaint compliance with the above requirements. Nor does Grimes in his response to defendant's motions indicate that he received a right to sue letter from the EEOC. On that basis it would appear that the Court is without jurisdiction to entertain Grimes' Title VII claims. However, from a reading of the motions as well as all the other documents filed in this cause, there is little doubt that Grimes did in fact file a complaint with the EEOC on March 16, 1981, and it appears that the EEOC issued a right to sue letter on June 3, 1981. See, Plaintiff's List of Witnesses and Exhibits, Item 5(c). Thus, the Court is satisfied that Grimes has complied with the second requirement for filing suit.
However, it is the first requirement (that of filing a timely charge before the EEOC) that the defendant Railroad contends Grimes has not complied with. Section 2000e-5 requires that a complaint be filed with the EEOC within One Hundred and Eighty (180) days after the alleged unlawful employment practice occurred. It is undisputed in this case that no such charge was filed within One Hundred Eighty (180) days of either Grimes' discharge in 1976 or his reinstatement in 1979. Thus, any claim based solely on these two events is barred. Grimes contends however that there is a continuing violation in that the Railroad failed to accord him the proper seniority status, thus giving present effect to the Railroad's past conduct.
There is no doubt in the Court's mind that the Railroad's seniority system gives present effect to what is alleged to have been a past act of discrimination (i.e. Grimes' reinstatement in 1979 without seniority credit). Moreover, it is clear that seniority can, and oftentimes does, govern which employees will be furloughed or laid off and which will be recalled. But in the case before the Court Grimes does not attack the bona fides of the Railroad's seniority system. He merely argues that the past wrongful conduct has a continuing effect.
It is clear that past acts of discrimination which have not been made the basis for a timely charge before the EEOC are the legal equivalent of discriminatory acts which occurred before the statute was passed. United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Therefore, the Railroad is entitled to treat their actions in 1976, and 1979 as lawful since Grimes' EEOC complaint was not filed until 1981. And past events, which have no legal significance can not now support an argument that the violation is a continuing one. United Air Lines, supra.
Grimes further contends, however, that he was furloughed in retaliation for his March 16, 1981 EEOC charge. The Railroad argues that since no charge of retaliation has ever been filed with the EEOC Grimes may not now for the first *649 time assert such claim. With this the Court cannot agree. While it is true that a Court may not generally exercise jurisdiction over claims not encompassed within the EEOC charge, Plummer v. Chicago Journeymen Plumbers, Local Union Etc., 452 F.Supp. 1127 (D.C.Ill.1978), the Court may exercise jurisdiction over like or related matters which might reasonably be expected to be subject to EEOC investigation growing out of the charge. Flesch v. Eastern Pennsylvania Psychiatric Institute, 434 F.Supp. 963 (E.D.Pa.1977). On the basis of the record before the Court, it is impossible to say that Grimes' charge of retaliation is not related to the charges that were pending before the EEOC at the time that Grimes was furloughed. Furthermore, retaliation for participating in the EEOC process can exist even if the claims contained in the EEOC charge are without merit or are based upon activity which is found to be lawful. Abramson v. University of Hawaii, 594 F.2d 202 (9th Cir.1979). It is the nature of retaliation claims that they arise only after the filing of an EEOC charge. To require a plaintiff to resort to the EEOC process before bringing such a charge would mean that in every case where retaliation is an issue the plaintiff would have to file a second EEOC charge. The Court is of the opinion that such requirement would have the effect of erecting an unnecessary procedural barrier to the maintenance of a Title VII suit which could discourage employees from exercising their rights under the Civil Rights Act. See, National Organization For Women v. Sperry Rand Corp., 457 F.Supp. 1338 (D.C.Conn.1978); Bernstein v. National Liberty International, 407 F.Supp. 709 (D.C.Pa.1976); Held v. Missouri Pacific Railroad Company, 373 F.Supp. 996 (D.C. Tex.1974).
Based upon the foregoing, the Court finds that the defendant Railroad's motion for summary judgment as to pleading paragraph three of plaintiff's complaint should be GRANTED in part and DENIED in part. In so far as Grimes' claims relate to his 1976 discharge, his 1979 reinstatement, and his contention of a continuing violation, such claims are barred due to untimely filing with the EEOC. The Court therefore lacks jurisdiction over such claims and the defendant Railroad's motion with respect to those claims is GRANTED. With regard to Grimes' claim of retaliation, the Court finds that the averments in defendant's motion are insufficient to show that there are no genuine issues of material fact as to the reason for Grimes' furlough thereby precluding the granting of defendant Railroad's motion. Thus, as to that issue the Railroad's motion for summary judgment is DENIED.
As noted earlier, the defendant Union also filed a motion for summary judgment as to pleading paragraph three. At a pretrial conference held on April 5, 1982 before the Honorable Patrick Endsley, United States Magistrate, the plaintiff, and plaintiff's counsel agreed that pleading paragraph three of the complaint was without merit as to any claim against the Union. The Magistrate at that time found that the Union's motion for summary judgment as to that claim should be granted. The Court having examined the record in this cause, concurs with the finding of the Magistrate, and hereby GRANTS the defendant Union's motion for summary judgment as to pleading paragraph three.
§ 1985 CONSPIRACY CLAIM
Pleading paragraph four (4) of Grimes' complaint alleges that the defendants conspired to deprive Grimes of his right to equal employment opportunities in violation of Title 42 United States Code Section 1985. Both defendants have moved for summary judgment as to this claim on two separate grounds: (1) that the applicable statute of limitations for this type of action is a bar to recovery for any events occurring prior to June 11, 1979, and (2) that the conspiracy claim is a wholly speculative claim which lacks any factual basis. Grimes attempts to resist defendants' second contention by stating that the alleged discriminatory practices of the defendant Railroad, occurring as they did in a union shop, could not *650 have occurred without the tacit and actual consent of the Union, thus giving rise to more than a mere suspicion that a conspiracy existed.
The Seventh Circuit has had occasion to address the question of what is the appropriate statute of limitations for actions brought pursuant to the Civil Rights Enforcement Statutes, §§ 1981, 1983, 1985, and 1986. See, Movement For Opportunity Etc., supra (§ 1981 Action); Hill v. Trustees of Indiana University, 537 F.2d 248 (7th Cir.1976), (§ 1983 Action). In both cases, the appellate court found that the two year statute of limitations in Indiana Code § 34-1-2-2 should be applied to the civil rights actions then under consideration. Grimes has cited the Court to no authority, and indeed failed to even address the issue in his brief, which would justify applying a different statute of limitations to the present § 1985(3) action. The Court is therefore of the opinion that in light of the decisions in Movement For Opportunity, Etc. and Hill that the appropriate statute of limitations to be applied to Grimes' conspiracy claim is two (2) years.[1] Thus, any claim that Grimes could assert that arose before June 11, 1979 is time barred. Application of this period of limitations, then leaves Grimes only with the claim of conspiracy as to his reinstatement in July 1979, and his furlough in March 1981.
Examination of Grimes' complaint with respect to his conspiracy claim reveals that the only allegation supporting his claim is that, "[t]he practices and policies of Defendants "Union" and "Company" constitute a conspiracy ..." See, Complaint ¶ 39. In essence Grimes seems to be saying that the alleged wrongful acts could not have occurred but for the existence of a conspiracy. However, when Grimes was asked in his deposition to delineate what evidence he possessed which supported the existence of the conspiracy he answered that:
[T]he Union and the Company were both involved in either seeing that I did or did not have what I am supposed to have. And beyond that, it's very difficult for me to give you an accurate statement about what particular specifics, because I don't know.
Grimes Deposition 36-37.
While the Court agrees with the Seventh Circuit's statement in Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir.1975) cert. denied 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976) that:
[P]laintiff is entitled to the fullest opportunity to adduce evidence in support of (his) claim. But (he) is not entitled to a trial, or even to discovery, merely to find out whether or not there may be a factual basis for a claim ...
it must appear from the complaint that there is at least sufficient minimal factual support of the existence of a conspiracy. It is,
[n]ot sufficient to allege that defendants merely acted in concert or with a common goal. There must be allegations that the defendants had directed themselves toward an unconstitutional action by virtue of a mutual understanding. Even were such allegations made, they must further be supported by some factual allegation suggesting such meeting of the minds. (Emphasis added)
Sparkman v. McFarlin, 601 F.2d 261 (7th Cir.1979) (alleged conspiracy under § 1983).
Perusal of the complaint does not reveal any allegation or factual basis to support a finding of mutual understanding or of a meeting of the minds between the Union and the Railroad. Nor can Grimes point to anything which would support such a finding. He simply requests that this Court infer from his discharge, reinstatement, and furlough that there was some sort of agreement to discriminate against him. This the Court is unwilling to do. Moreover, Grimes asserts his claims as violations of Title VII, see, Complaint ¶¶ 1, 36. However, it is clear that § 1985(3) may not be invoked to redress violations of Title *651 VII. Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979).
Therefore, for the reasons given above the Court is of the opinion that pleading paragraph four (4) of the complaint fails to sufficiently allege the existence of a § 1985(3) violation. And in as much as the alleged violations are based upon violation of Title VII, a § 1985(3) action is not the appropriate remedial action. The defendant Railroad's motion for summary judgment as to pleading paragraph four (4) is hereby GRANTED. Likewise, defendant Union's motion for summary judgment as to the same claim is also GRANTED.
APPEAL OF DECISION OF THE NATIONAL RAILROAD ADJUSTMENT BOARD
Pleading paragraph five (5) of the complaint is an appeal of the June 13, 1979 decision of the National Railroad Adjustment Board (No. 7956 Second Division) in so far as the decision denied Grimes compensation for lost wages, benefits, and increments from September 22, 1976 through July 7, 1978. Grimes contends that the decision was contrary to the evidence and the Board's own findings, discriminatory, arbitrary, capricious, and in complete disregard of the provisions of the collective bargaining agreement.
The defendant Railroad has moved for summary judgment as a matter of law as to this claim on the basis that the scope of review of this Court is limited by the Railway Labor Act and that Grimes has not demonstrated that the decision should be set aside.
The National Railroad Adjustment Board is essentially an arbitration panel established and governed by 45 U.S.C. § 151 et seq. Courts reviewing decisions of the Board have an extremely narrow standard of review. Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978); Kotakis v. Elgin, Joliet, and Eastern Railway Co., 520 F.2d 570 (7th Cir.1975). The decision of the Board may be set aside only for failure of the Board to comply with the requirements of the chapter; for failure of the order to conform or confine itself to matters within the scope of the divisions jurisdiction; or for fraud or corruption by a member of the division making the order. See, 45 U.S.C. § 153 First(q).
Pleading paragraph five (5) of the complaint does not allege that the Second Division failed to comply with the requirements of the Railway Labor Act, or that there was any fraud or corruption by any member of the Board. Instead, Grimes essentially alleges that the Board's decision did not confine itself to or conform with matters within the scope of the Board's jurisdiction since the decision failed to award him back pay. In order for the Court to find that the Board's decision is outside the scope of the division's jurisdiction, the decision must be "without foundation in reason or fact" Laday v. Chicago Milwaukee, St. Paul and Pacific Railroad Co., 422 F.2d 1168 (7th Cir.1970), or "wholly baseless and without reason." Gunther v. San Diego & Arizona Eastern Railway Co., 382 U.S. 257, 86 S.Ct. 368, 15 L.Ed.2d 308 (1965). And it is clear that the Court on review may not open up the Board's findings on the merits, or interpret the collective bargaining agreement. Gunther, supra, Edwards v. St. Louis-San Francisco Railway Co., 361 F.2d 946 (7th Cir.1966).
In the case sub judice Grimes contends that the failure of the Board to award backpay is "baseless" and "without reason". However, there is authority for the proposition that an award of reinstatement without back pay is not so baseless or wholly without reason as to require reversal of the arbitrator's decision. See, Air Lines Pilots Ass'n Intern. v. Eastern Airlines, 632 F.2d 1321 (5th Cir.1980); Amoco Oil Co. v. Oil, Chem. & Atomic Wkrs. Etc., 548 F.2d 1288 (7th Cir.1977) cert. denied 431 U.S. 905, 97 S.Ct. 1697, 52 L.Ed.2d 389 (1977); Rinker v. Penn Central Transportation *652 Co., 350 F.Supp. 217 (E.D.Pa. 1972). As the Court noted in Rinker:
... [T]here is nothing at all inconsistent about an award of reinstatement without back pay ... the Board's consideration was not confined solely to whether disciplinary action by the railroad was warranted, it extended also to determining the propriety of the disciplinary action imposed. Quite obviously the Board here concluded that disciplinary action was warranted, but that complete dismissal was not. The refusal to award back pay amounts to a reduction of the penalty from dismissal to a period of suspension.
Such is the case here. While the Board specifically found that Grimes should be disciplined, mitigating circumstances made dismissal excessive, and a lesser penalty appropriate. The Court can not say that such decision was wholly baseless, or without reason so as to require reversal of the Board's decision.
Although Grimes in his complaint did not attack the proceedings before the Adjustment Board, in his response to the Railroad's motion he argues that the proceedings before the Board were tainted by the Union's breach of its duty of fair representation. While the Court notes that in some cases the breach of the duty of fair representation may undermine the arbitral process, see e.g. Miller v. Gateway Transportation Co., 616 F.2d 272 (7th Cir.1980) the Court is not of the opinion that this is such a case. Here, Grimes' grievance was processed by the Union, and although there appears to be some question as to the adequacy of his representation at the initial discharge hearing, it is clear from the record filed by the Board that they were aware of these shortcomings. It is also important to note that the Board did find in Grimes' favor albeit not to the degree that either he or the Union sought.
Looking at the record as a whole, as well as the numerous exhibits made part of the Board's record of decision, the Court can not say that the Union breached its duty of fair representation so as to undermine the fairness of the arbitral process. That being the case the Court finds that the motion for summary judgment as to the appeal of the decision of the National Railroad Adjustment Board should be GRANTED
Based upon the foregoing the Court hereby ORDERS that:
(1) Summary Judgment as to pleading paragraph One (1) of the complaint be and hereby is GRANTED in favor of the defendant Railroad.
(2) Summary Judgment as to pleading paragraph Two (2) of the complaint be and hereby is GRANTED in favor of the defendant Union.
(3) Summary Judgment as to pleading paragraph Three (3) of the complaint with respect to the defendant Union is GRANTED in favor of the Union. With regard to the defendant Railroad the motion is GRANTED in part and DENIED in part. Plaintiff may pursue against the Railroad only his claim of retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq.
(4) Summary Judgment as to pleading paragraph Four (4) of the complaint is GRANTED in favor of both the defendant Railroad and the defendant Union.
(5) Summary Judgment as to pleading paragraph Five (5) of the complaint is GRANTED in favor of the defendant Railroad.
IT IS SO ORDERED.
NOTES
[1] (1) Indiana has enacted Indiana Code § 34-1-2-1.5 which provides specifically for a two (2) year statute of limitations for all employment related actions.
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238 Ga. 664 (1977)
235 S.E.2d 377
BATTS
v.
THE STATE (two cases).
31951, 31952.
Supreme Court of Georgia.
Submitted January 28, 1977.
Decided April 21, 1977.
*665 M. Stan Ballew, Jim L. Wilson, for appellant.
Thomas H. Pittman, District Attorney, Fred W. Rigdon, Jr., Assistant District Attorney, Arthur K. Bolton, Attorney General, Daryl A. Robinson, Staff Assistant Attorney General, for appellee.
PER CURIAM.
The defendant was found guilty of two armed robberies which arose out of the same occurrence and was sentenced to life imprisonment. On appeal he contends that the procedure followed in Georgia for determining the voluntariness of a confession is unconstitutional.
The Georgia procedure for determining the voluntariness of a confession is not unconstitutional for any reason assigned.
Judgment affirmed. Nichols, C. J., Undercofler, P. J., Jordan, Ingram and Hall, JJ., concur. Hill, J., concurs specially.
HILL, Justice, concurring specially.
The defendant contends that the procedure followed in Georgia for determining the voluntariness of a confession violates the due process clause of the 14th Amendment as well as the Georgia requirement that in criminal cases the jury shall be the judges of the law and the facts (Code Ann. § 2-201). He argues that to satisfy the Georgia requirement the jury must determine the voluntariness of the confession and that in order for there to be the reliable determination on the issue of voluntariness required by Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the jury must return a special verdict disclosing its finding on that issue. The state cites Watson v. State, 227 Ga. 698 (182 SE2d 446) (1971), and urges that no objection was made to admission of the confession and hence there was no issue as to voluntariness. In my view this appeal involves the sufficiency of the charge of the court and thus no objection at trial was necessary. Sims v. State, 234 Ga. 177 (214 SE2d 902) (1975).
At trial the state initiated on its own motion a Jackson-Denno hearing during which an officer testified as to the warnings given to the defendant and to the circumstances surrounding the giving of the confession. At the conclusion of this nonjury testimony, the defendant made no objection or motion and he called no witnesses. The trial court expressly found that the proper foundation for admission of the officer's testimony as to the defendant's statement had been laid. The jury returned and the defendant's statement was recounted.
When the defendant took the stand he testified that he did not remember a Miranda warning and that his confession was involuntary. The trial court did not instruct the jury concerning the confession and there was no request to charge upon that subject.
In New York, prior to Jackson v. Denno, trial judges *666 were required to make a preliminary determination regarding a confession. They could exclude a confession only if the confession could not be deemed voluntary under any circumstances. If voluntariness was debatable, the jury then passed upon voluntariness and if it found the confession to be involuntary it ignored it in determining guilt. If on the other hand the jury found the confession to be voluntary, it was free to consider its truth or falsity in determining guilt or innocence. This procedure was found to be constitutionally defective because the defendant never received a clear-cut determination that the confession used against him was in fact voluntary.
In Jackson v. Denno, the court mentioned, without criticism, the two other widely used procedures but gave no clear indication of a preference for one over the other. Under the "orthodox rule" the trial judge alone makes the determination of the voluntariness of the confession; the jury is not instructed that if it finds the confession was given involuntarily it is to be disregarded. The "Massachusetts rule" requires the judge first to determine voluntariness and if the confession is deemed voluntary it is heard by the jury which makes its own determination of voluntariness. The Massachusetts rule escaped criticism because the trial judge made a determination of voluntariness in the first instance as was also done under the orthodox rule. For developments in various states since Jackson v. Denno, see Annot. 1 ALR3d 1251 and its pocket part.
Prior to Jackson v. Denno, Georgia followed a rule most like the New York rule. Downs v. State, 208 Ga. 619, 621 (68 SE2d 568) (1952); see 378 U. S. at 415; see also Sims v. Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593) (1966). In other words, prior to Jackson v. Denno, juries decided voluntariness in Georgia. Following the addition of the Jackson v. Denno requirement that there be a reliable determination of voluntariness, judges in Georgia began making that determination. Strickland v. State, 226 Ga. 750 (177 SE2d 238) (1970); Cardell v. State, 119 Ga. App. 848 (2) (168 SE2d 889) (1969).
It might be expected that this additional requirement, when coupled with the old practice of jury determination, would have put Georgia under the *667 Massachusetts practice. This has not occurred (as seen by the case before us) due undoubtedly to another requirement, namely that the question of voluntariness of a confession need not be submitted to the jury without request to charge on that subject. Elvine v. State, 205 Ga. 528 (3, 4) (54 SE2d 626) (1949); Phillips v. State, 206 Ga. 418 (2, 4c) (57 SE2d 555) (1950); cf. Crawford v. State, 236 Ga. 491, 493 (224 SE2d 365) (1976).
Thus, the present practice in Georgia may be described as following the orthodox rule, except that by timely written request to charge the defendant can invoke the Massachusetts rule. In the absence of such a request to charge, the court below followed the orthodox rule and made the required reliable determination as to the voluntariness of the confession. This satisfied the requirements of Jackson v. Denno, supra. In the absence of such request to charge, there is no denial of the right to trial by jury in criminal cases, Code Ann. § 2-201.
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