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516 So.2d 302 (1987)
James MORRIS, Appellant,
v.
C.A. MEYER PAVING & CONSTRUCTION AND CNA Insurance Company, Appellees.
No. BS-416.
District Court of Appeal of Florida, First District.
December 1, 1987.
Rehearing Denied January 8, 1988.
*303 Michael M. O'Brien and William T. Roshko, of O'Brien & Hooper, Orlando, for appellant.
Rex A. Hurley, of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellees.
ZEHMER, Judge.
We have for review a workers' compensation order denying permanent impairment benefits for amputation based on the ruling that surgical removal of an employee's testicle consequent to a covered industrial accident does not constitute amputation within the meaning of section 440.15(3)(a), Florida Statutes (1985). Concluding that the deputy commissioner has misconstrued that section, we reverse.
The pertinent facts are simple and undisputed. As the result of a work-related accident which occurred on March 23, 1985, claimant's left testicle was surgically removed by an authorized urologist. Claimant filed a claim for permanent impairment benefits, alleging that "an orchiectomy is a surgical amputation [and] the Claimant is entitled to amputation benefits pursuant to Section 440.15 Florida Statutes." The urologist testified that claimant reached maximum medical improvement on June 12, 1985, and opined, based on the AMA Guides to the Evaluation of Permanent Impairment, that claimant had a 10% permanent impairment attributable to the loss of one testicle. He also testified that claimant suffered no functional loss in ability to perform sexually and to produce children, that claimant was not placed on any work restrictions, and that no further treatment was needed. The final order denied claimant permanent impairment benefits based on the conclusion that "the language of [§ 440.15(3)(a)(1)] does not contemplate mere loss of any body part," but was intended to be limited to the severance of a limb, citing Carr v. Central Florida Aluminum Products, Inc., 402 So.2d 565 (Fla. 1st DCA 1981).
Claimant appeals this denial, contending that no case has construed this statutory provision in the context of similar facts. He argues that section 440.15(3)(a) contains no exclusion for amputation of specific body parts, is not expressly limited to limbs, and thus is subject to the construction that an orchiectomy amounts to surgical amputation of a body part. The deputy commissioner's construction of the statute is reversible error, claimant urges, because the statute must be given an interpretation most favorable to the employee, citing Norwood Shell v. Forbing, 455 So.2d 504 (Fla. 1st DCA), pet. for rev. dismissed, 459 So.2d 1041 (Fla. 1984).
The employer and carrier contend that although claimant has lost his left testicle, he does not suffer the serious economic disabling consequences of severance of a limb as intended by the legislature, and cites Carr v. Central Florida Aluminum Products, Inc., 402 So.2d 565, for the proposition *304 that amputation must be defined as severance of a limb. The employer and carrier also rely on Rosier v. Roofing & Sheet Metal Supply Co., 41 So.2d 308 (Fla. 1949), a pre-1979 Act case in which the supreme court held that a claimant was not entitled to permanent disability compensation for removal of a testicle. Appellants further argue that to accept claimant's argument, the removal of any body part, such as removal of a herniated disc, shaving of hair for an operation, skin grafting, removal of fingernails, and other such operations, would require payment of benefits for permanent impairment due to amputation.
After carefully considering the arguments of both parties, we hold that surgical removal of claimant's testicle constitutes an amputation within the meaning of section 440.15(3)(a). That section provides:
1. In case of permanent impairment due to amputation, loss of 80 percent or more of vision of either eye, after correction, or serious facial or head disfigurement resulting from an injury other than an injury entitling the injured worker to permanent total disability benefits pursuant to subsection (1), there shall be paid to the injured worker the following:
a. Two hundred and fifty dollars for each percent of permanent impairment of the body as a whole from 1 percent through 10 percent.
Permanent impairment is defined in section 440.02(16) as "any anatomic or functional abnormality or loss, existing after the date of maximum medical improvement, which results from the injury."
The term "amputation" is not defined in the statute, so we must look to its generally accepted meaning. Doubtlessly the word is most often used in referring to severance or removal of a limb or portion thereof, but both medical and standard English dictionaries indicate that the word has a broader meaning and is generally defined as the "surgical removal of a diseased member, part, or organ." Tabers' Cyclopedic Medical Dictionary, p. A-49 (11th ed. 1970). See also Dorland's Illustrated Medical Dictionary, p. 62 (26th ed. 1985) ("the removal of a limb or other appendage or outgrowth of the body"); American Heritage Dictionary, p. 45 (new college ed. 1979) ("to cut off (a part of the body), especially by surgery"). Given these accepted definitions, it necessarily follows that use of this term in the statute, when given the construction most favorable to the injured employee,[1] cannot be limited to the amputation of limbs absent specific provision to that effect in the statute.
Before the act was amended in 1979, permanent disability benefits were payable only for demonstrated loss of wage earning capacity. The pre-1979 act specifically referred to amputation of an "arm or leg" and benefits were limited to compensation for amputation of those limbs. § 440.15(3)(o), Fla. Stat. (1977). On the other hand, since the 1979 amendments, section 440.15(3)(a) does not contain any language limiting its benefits to the amputation to such limbs, and no other section in chapter 440 contains such limiting language. Rather, the special benefits provided under that section are payable, in addition to wage loss benefits under section 440.15(3)(b), whenever a claimant suffers the described condition coupled with any degree of permanent impairment. Accordingly, we construe the term "amputation" as used in section 440.15(3)(a), in context with the definition of permanent impairment in section 440.02(16), to mean that special benefits for "permanent impairment due to amputation" shall become payable as a consequence of the severance of any part of the body or limb that results in a permanent impairment rating. This construction will not permit the award of such benefits in every instance of removal of a hair or body tissue, as suggested by appellees in their argument.
We have found no appellate decision which requires a different construction. *305 The question decided in Rosier v. Roofing & Sheet Metal Supply Co., 41 So.2d 308, was whether the removal of a testicle met the statutory requirement of disability which, under the statute then in existence, was to be demonstrated by showing an impairment of wage earning capacity. As discussed above, the forerunner to the present statute contained entirely different language limiting benefits to the amputation of certain limbs. The decision in Carr v. Central Florida Aluminum Products, Inc., 402 So.2d 565, is not controlling because the claimant sustained an injury to his thumb which did not amount to amputation. The court was not required to construe the meaning of amputation in the context of facts similar to that now presented to us. On the contrary, referring to amputation in the sense of limb severance for the purpose of deciding the constitutionality of section 440.15(3), the court concluded that giving special treatment to claimants suffering an amputation or other special injuries described in that section was not such an unreasonable classification as to violate equal protection. Moreover, the opinion specifically noted that the special injuries listed in section 440.15(3)(a) were singled out for special treatment to eliminate disputes over the economic impact such injuries may have on wage earning capacity which were then measured by actual wage loss. We view the rationale of Carr as supporting, not contradicting, the construction we now apply in this case. Section 440.15(3)(a) simply provides a small monetary benefit payable to a claimant where the loss of a significant body part causes permanent impairment even though such loss has no demonstrably significant impact on actual wage loss as defined in section 440.15(3)(b).
Because the surgical removal of claimant's testicle was the direct result of the covered industrial accident and left claimant with a ten percent permanent impairment rating, the order denying claimant amputation benefits must be reversed. In view of this ruling, the denial of costs and attorneys fees must also be reversed. The cause is remanded for entry of an order consistent herewith.
REVERSED AND REMANDED.
WENTWORTH and NIMMONS, JJ., concur.
NOTES
[1] Norwood Shell v. Forbing, 455 So.2d 504 (Fla. 1st DCA), pet. for rev. dismissed, 459 So.2d 1041 (Fla. 1984).
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No. 2--96--1142
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
BRISSY ABRAHAM, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
) No. 95--L--485
v. )
)
WAYSIDE CROSS RESCUE MISSION, ) Honorable
) Hollis L. Webster,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE THOMAS delivered the opinion of the court:
Plaintiff, Brissy Abraham, appeals the entry of summary judgment for defendant, Wayside Cross Rescue Mission, in plaintiff's negligence action. The issue for review is whether defendant had a duty to plaintiff to supervise one of its residents and to report any unauthorized absences.
The complaint alleged that defendant operated an inpatient rehabilitation center and "halfway house" in Aurora. Plaintiff's estranged husband, Abraham Abraham, was violent and abusive and had been sentenced to the Du Page County jail for violating a juvenile court order of protection. On March 18, 1994, pursuant to a court order, Abraham was transferred from the jail and accepted as a resident at defendant's facility. Defendant allegedly knew or should have known of Abraham's history of and propensity for violence directed towards his family and plaintiff. On April 4, 1994, defendant permitted Abraham to leave the facility unsupervised. Abraham travelled to the family home in Elmhurst and stabbed plaintiff numerous times.
The complaint further alleged that defendant should have been aware that Abraham's prolonged, unauthorized absence was likely to enable him to inflict harm on others, specifically plaintiff. Defendant allegedly had a duty to monitor Abraham's comings and goings and to report any unexplained or unauthorized absences. Defendant breached this alleged duty by negligently supervising Abraham's activities; by failing to monitor his whereabouts when he was absent from the premises for extended periods; by failing to notify timely a law enforcement agency; and by allowing Abraham to absent himself freely from the premises so as to create a danger to others including plaintiff.
Defendant moved for summary judgment arguing that it had no duty to plaintiff. It submitted the affidavit of Rick Thomas, the chaplain at defendant's facility. Thomas averred that he oversaw Abraham's treatment while he was at the shelter. Abraham was enrolled pursuant to his own request. Defendant does not accept referrals from the court system, nor does it provide care pursuant to a court order. Defendant is privately funded and is not affiliated with any court system or governmental body. Abraham was not transferred from the Du Page County court pursuant to a court order. Defendant agreed only to provide Abraham rehabilitative assistance for alcoholism; it did not provide any psychological evaluation. While Abraham was at the shelter, he did not exhibit violent tendencies and made no threats of violence. Because defendant's program accepts only those who request to be there, Abraham was free to leave any time during his enrollment at defendant's facility.
Plaintiff responded with the discovery deposition of Evelyn Pharms, the Department of Children and Family Services (DCFS) caseworker assigned to the Abrahams. The department had been involved with the family since November 1992. Pharms testified that Abraham had a history of drug abuse and violence towards plaintiff. He had threatened to physically harm the family "to the point where the police were involved." On March 4, 1994, a juvenile order of protection was entered prohibiting Abraham from having contact with plaintiff or their children. Abraham violated the order of protection and was sentenced to 30 days in jail. However, Abraham was allowed to be released from jail if he entered a halfway house for alcoholism treatment. A jail social worker gave Pharms and Abraham the names of facilities, including defendant. The criteria for an acceptable halfway house were that it be willing to inform the court about Abraham's progress, have an alcohol treatment program where he could go for Alcoholics Anonymous (AA), and provide housing.
Pharms further testified that, when she called defendant's facility, she spoke to George Patterson, who told her the length of the program and "that it was run like a dormitory and that their clients are allowed to go out on furloughs." Pharms' understanding of the furlough system was that Abraham would be given approval to go specific places at times authorized by DCFS and the court. However, leaving the premises for a short time within the community would not be considered a furlough. She also understood that Abraham would not be allowed to leave the premises without prior approval from his counselor at defendant's facility.
Pharms went to juvenile court and got an order to release Abraham to go to defendant's facility. Pharms took Abraham to the facility, where she met with Thomas. She informed him of the juvenile court's involvement, the concerns about Abraham's drinking, and that the court wanted him to be in an alcoholism treatment program. Pharms also discussed Abraham's domestic violence problems and police contacts and the order conditioning Abraham's release on enrollment in the halfway house. Pharms also stated that she told Thomas she needed to be contacted for, and DCFS needed to approve, furloughs because Abraham could not have contact with plaintiff. Between Abraham's entry into defendant's program and April 4, 1994, he was conforming to the program, was working, and denied that he was having any problems.
Pharms also testified that Abraham had a court date on April 4 and that someone at defendant's facility advised her that Abraham would be transported to the court hearing. Pharms admitted that she was aware of defendant's policy that clients were allowed free time in the evening until 9:30 p.m. This meant that Abraham was free to come and go during that time. She also admitted that, as defendant's was not a locked facility, she was aware that Abraham could walk away at any time.
Pharms related that, prior to the April 4 incident, defendant informed her that there were no suspicions that Abraham was using alcohol nor did he smell of alcohol. According to Pharms, Abraham was perceived as a risk "primarily when he was drinking."
The trial court granted defendant summary judgment, finding that defendant did not have a duty to be responsible for Abraham's whereabouts. The court used the test set forth in
Reynolds v. National R.R. Passenger Corp.
, 216 Ill. App. 3d 334 (1991). The court also noted that Abraham did not make any threats against plaintiff while he was at defendant's facility. The court emphasized that, in considering the foreseeability of the injury and the magnitude of guarding against it, the prevailing public policies concerning alcoholism treatment militated against imposing a duty. In the absence of specific threats against a specific third party, imposing a duty on alcohol treatment centers and shelters would be unreasonable. As the court explained, "such a duty is inconsistent with the public policy [so] that treatment centers would close their doors if [the court] imposed such a policy and the good work that they do would become more difficult to obtain."
Plaintiff's motion to reconsider the entry of summary judgment was denied, and she timely appealed.
Summary judgment is proper when the pleadings, affidavits, and other documents on file, construed in favor of the nonmovant, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
Espinoza v. Elgin, Joliet & Eastern Ry. Co.
, 165 Ill. 2d 107, 113 (1995). Summary judgment is a drastic means of resolving litigation and should be allowed only when the right of the moving party to judgment is clear and free from doubt.
Espinoza
, 165 Ill. 2d at 113. While a plaintiff need not prove her case at the summary judgment stage, she must come forward with some facts that would arguably entitle her to judgment.
Jones v. Minster
, 261 Ill. App. 3d 1056, 1059 (1994). We review the entry of summary judgment
de novo
.
In re Estate of Hoover
, 155 Ill. 2d 402, 411 (1993).
In a negligence action, the plaintiff must establish that the defendant owed the plaintiff a duty, breached that duty, and the breach proximately caused the injury.
Boyd v. Travelers Insurance Co.
, 166 Ill. 2d 188, 194-95 (1995). The existence of a duty is a question of law that depends on whether the parties stood in such a relationship that the law imposes an obligation on the defendant to act reasonably to protect the plaintiff.
Gouge v. Central Illinois Public Service Co.
, 144 Ill. 2d 535, 542 (1991). In making the determination, generally, courts consider the foreseeability and the likelihood of the injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant.
Gouge
, 144 Ill. 2d at 542. The court in
Reynolds
, on which the trial court relied, included an additional factor, "the currently prevailing public policies and social attitudes of the community." (Internal quote marks omitted.)
Reynolds
, 216 Ill. App. 3d at 338, quoting
Eckhardt v. Kirts
, 179 Ill. App. 3d 863, 870 (1989), quoting
Leesley v. West
, 165 Ill. App. 3d 135, 141 (1988).
In
Reynolds
, an Amtrak employee, Robert Krabec, was voluntarily admitted to a hospital and assigned to the alcoholism treatment unit. During his course of treatment, Krabec eloped from the hospital and went to Union Station, where he had been employed as a security officer. Krabec entered the security office and firearms locker and then shot and killed a fellow employee at Union Station. The hospital and the doctors were unaware of Krabec's absence for several hours. Amtrak and Union Station sued the hospital and the doctors for contribution, alleging, among other things, that those defendants failed to control Krabec's behavior and activities. The trial court dismissed the third-party complaints, finding that they failed to allege a duty.
The appellate court set forth the following test to determine whether a duty arose under the circumstances:
"(1) [T]he patient must make specific threat(s) of violence; (2) the threat(s) must be directed at a specific and identified victim; and (3) a direct physician-patient relationship between the doctor and the plaintiff or a 'special relationship' between the patient and the plaintiff [must exist]."
Reynolds
, 216 Ill. App. 3d at 338.
The court noted that there was no indication that Krabec made any specific threats towards the co-worker while Krabec was a patient at the hospital. As such, the third-party plaintiffs could not prevail on the first two elements.
Reynolds
, 216 Ill. App. 3d at 338.
On the third element, Amtrak argued that there was a special relationship in the form of a voluntary custodian-protectee because Krabec was under inpatient care at the hospital. The hospital and its medical staff voluntarily provided care and treatment for Krabec. The court rejected Amtrak's argument, finding that the third-party defendants owed no duty to the co-worker because he was "a remote unidentified, unknown third party." The court reasoned that it was not reasonably foreseeable that Krabec would shoot a co-worker whom he never mentioned to any of the hospital staff.
Reynolds
, 216 Ill. App. 3d at 339.
Plaintiff asserts that
Reynolds
is distinguishable. We agree. Here there was an identified victim, and, unlike in
Reynolds
, the custodian was aware of Abraham's violent propensities.
Reynolds
's analysis derives from the general rule that a person has no duty to prevent a third party from harming the plaintiff unless there is a special relationship between the defendant and the third person or between the defendant and the plaintiff. See Restatement (Second) of Torts §315 (1965) (Restatement). Plaintiff instead urges us to rely on section 319 of the Restatement which provides:
"One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." Restatement (Second) of Torts §319 (1965).
Plaintiff contends that defendant, as the operator of a "halfway house," should be held liable for injuries to third parties caused by improper supervision of its "inmates." Plaintiff cites cases from other jurisdictions which she argues are similar to the present cause. These cases are distinguishable. First, the defendant in
Dudley v. Offender Aid & Restoration of Richmond, Inc.
, 401 S.E.2d 878 (Va. 1991), operated a residential prerelease facility in which convicts were to become acclimated for eventual release from prison. The defendant had a contract with the Department of Corrections that required it to notify the Department whenever an inmate was absent without authorization for more than two hours. The court there found that the "custodial duties" of the defendant surpassed those of a parole officer and met the criterion of section 319 for "one who takes charge" of a person.
Dudley
, 401 S.E.2d at 882. Similarly, the defendants in
Doe v. United Social & Mental Health Services, Inc.
, 670 F. Supp. 1121 (D. Conn. 1987), operated a halfway house under a contract with the Department of Corrections (
Doe
, 670 F. Supp. at 1123 n.3), and they violated the state standards imposed by the Department of Corrections (
Doe
, 670 F. Supp. at 1133). The defendants also were aware that the inmate was potentially dangerous to others and in need of treatment.
Plaintiff asserts that defendant's facility is a "halfway house" because Abraham was allowed to reside there instead of serving time in jail and he had assigned daily duties, mandatory attendance at group sessions and AA support groups, and a 9:30 p.m. curfew. What plaintiff neglects to note is that there were no guards at the facility, it was not a locked facility, and the residents could leave whenever they chose to do so. Furthermore, defendant's facility did not have a contract with the Department of Corrections or the county jail and, in fact, did not accept referrals from the court system. The facts in the record show that defendant's facility was an alcohol treatment facility and shelter and was not a halfway house for paroled felons. Regardless of defendant's designation, we must determine whether Abraham was nevertheless under defendant's control.
In
Bailor v. Salvation Army
, 51 F.3d 678 (7th Cir. 1995), the United States Court of Appeals for the Seventh Circuit discussed section 319 of the Restatement in light of Indiana law. The court explained:
"[U]nder §319, '[f]or the duty to exist there must therefore not only be an actual taking charge of the third person, there must also be a knowledge of the likelihood that he will cause bodily harm.' Further, *** the entity taking charge must possess 'the right to intervene or control the actions of a third person.' "
Bailor
, 51 F.3d at 682, quoting
Estate of Mathes v. Ireland
, 419 N.E.2d 782, 784 (Ind. Ct. App. 1981) and
Sports, Inc. v. Gilbert
, 431 N.E.2d 534, 538 (Ind. Ct. App. 1982).
The court there found that the Salvation Army did not take control of the inmate because he was under the custody of the Attorney General and the Bureau of Prisons; the Salvation Army's ability or right to control him was limited; it had minimal discretion and its personnel were not authorized to possess lethal weapons; they could not use physical force to restrain a resident; and the Salvation Army had limited disciplinary discretion.
Bailor
, 51 F.3d at 682-83. In addition, it could not detain a resident, as residents were free to leave, provided they signed a sign-out sheet. The facility could not be " 'locked down' " to prevent residents from leaving. Like defendant's facility here, the "residents could leave the facility at any time, subject only to the consequences that could be imposed by the courts or by the Bureau of Prisons."
Bailor
, 51 F.3d at 683.
Defendant's facility is similar to the Salvation Army in that it did not have disciplinary discretion, it did not have armed guards, it could not be locked down, the residents could not be restrained, and the residents could leave the facility at any time. We therefore conclude that defendant did not exert sufficient control over Abraham so as to create a duty.
Moreover, plaintiff cannot meet the section 319 standard, or the first factor of the
Reynolds
test, because the evidence does not establish that defendant knew Abraham was likely to cause bodily harm. Abraham made no threats while in treatment, and he was thought to be doing well. Indeed, he was viewed as a danger only when he was drinking. Because he was abstaining from alcohol, it was not reasonably foreseeable to defendant that Abraham would travel to Elmhurst and harm his wife.
Finally, we believe that the public policy concerns militate against imposing a duty on defendant. Defendant offers important rehabilitative services to alcoholics and homeless people in the community. Unlike a halfway house for inmates about to be released from prison (see
Bailor
, 51 F.3d at 684), there is no concomitant interest in protecting the public here, because defendant's residents are not inmates serving out part of a sentence. We therefore conclude that the evidence established that defendant had no duty to plaintiff and the trial court properly granted defendant summary judgment.
The judgment of the circuit court of Du Page County is affirmed.
Affirmed.
COLWELL and RATHJE, JJ., concur.
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656 A.2d 252 (1994)
In the Matter of the Rehabilitation of NATIONAL HERITAGE LIFE INSURANCE COMPANY.
Civ. A. No. 13530.
Court of Chancery of Delaware, New Castle County.
Date Submitted: September 21, 1994.
Date Decided: October 17, 1994.
*253 Glenn C. Kenton, Stephen E. Herrmann, and Deborah E. Spivack of Richards, Layton & Finger, Wilmington, for Ins. Com'r of the State of Del., as Receiver for National Heritage Life Ins. Co. in Rehabilitation; Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, New York City, of counsel.
Phebe S. Young and John J. Schreppler, II of Bayard, Handelman & Murdoch, P.A., Wilmington, for TPM Financial, Inc.
OPINION
ALLEN, Chancellor.
Pending is an application by the Insurance Commissioner of the State of Delaware for an order requiring TPM Holdings, Inc. ("TPM"), a non-resident of the State of Delaware, to turn over to the Commissioner certain documents, books and records claimed to be the property of National Heritage Life Insurance Company, a Delaware domestic insurance company in rehabilitation. TPM, by its counsel, has appeared to contest this court's jurisdiction over it and asserts that in the absence of in personam jurisdiction over TPM the court may not enter an order requiring it to perform any act.[1]
The procedural background of the motion may be stated briefly. On May 25, 1994 the Commissioner filed a Petition for Rehabilitation and Injunction Order under Section 5911(a) of our Insurance Code. Factually, that petition alleged that National Heritage's March 1, 1994 financial statements disclosed that it had assets of $453,346,660, liabilities of $417,365,946 and a policy holder surplus of $35,980,714. It was alleged, as well, that a recent financial examination disclosed that assets valued at approximately $250 million had been bought and sold between September 30, and December 30, 1993, but that, as of the date of the petition, "neither National Heritage nor the Delaware Insurance Department [had] been able to ascertain the location or value of the assets acquired in exchange for the $250 million paid by National Heritage."
It was further alleged that "[a]t this time there is no evidence that National Heritage is financially impaired as a result of these transactions"; nevertheless it was alleged that "the State of Florida has publicly suspended National Heritage from writing business in Florida" and that "[t]he Delaware Insurance Department and the present management of National Heritage share a concern that the action of the Florida Insurance *254 Department will," in the language of the Petition, cause a "run on the bank."
As a result it was alleged that the board of directors of National Heritage had consented to the Delaware Insurance Department's request to have a rehabilitator appointed for the company.
On the representation that the situation was regarded as an emergency, a hearing on this application was held the following day, without notification to any third party, and an order in the form submitted by the Insurance Commissioner and consented to by National Heritage Life Insurance Company was entered at that time (the May 25 Order). That order provided in pertinent part that:
Pursuant to Title 18 Del.C. § 5910(a), the Commissioner shall forthwith conduct the business of National Heritage pursuant to the terms of this Order and take exclusive possession and control of and be vested with all right, title and interest in, of or to the property of National Heritage including, without limitation, all of National Heritage's assets, contracts, rights of action, books, records, bank accounts, certificates of deposits, collateral securing obligations to or for the benefit of National Heritage or any trust deed, bailee or agent acting for or on behalf of National Heritage, securities or other funds, and all real or personal property of any nature of National Heritage ... (emphasis added)
On June 27, 1994 this court entered a supplemental rehabilitation order providing, in part, that the Commissioner had the power to reject any executory contract to which National Heritage was a party and that any party to a rejected contract may file a claim for damages "only arising from such rejection" in the rehabilitation proceeding. See DuPont v. Standard Arms Co., Del.Ch., 81 A. 1089 (1912); Conover v. Sterling Stores Co., 14 Del.Ch. 26, 120 A. 740, 741 (1923).
* * *
Among the contractual relations of National Heritage was a contractual relationship with TPM, Inc., a Nevada corporation. National Heritage has entered into a number of contracts with TPM pursuant to which National Heritage paid substantial sums of money to TPM in exchange for certain rights that TPM had in various mortgage notes. Most significantly these agreements include a Master Loan Sale Agreement of December 28, 1993 with Addenda of December 30, 1993 and December 31, 1993 and a Servicing Agreement as of December 31, 1993. In these agreements, inter alia, TPM reserved the right to service the mortgages for a stated fee, kept control over all books and records relating to the mortgages in that connection and reserved other rights including certain rights to buy back mortgages notes under certain circumstances.[2]
*255 On August 3, 1994 the Commissioner filed a Motion for Temporary Restraining Order and "for turnover of assets of National Heritage Life Insurance Company" pursuant to the earlier May 25 Order. Pursuant to this motion, the Commissioner seeks an order compelling TPM to turn over all assets principally mortgages and real estate valued in the approximate total amount of $88 million and documentation in its possession related to the servicing of loans owned by National Heritage. "Documentation" includes all collateral documents and loan files in any way related to the mortgages being serviced or real estate owned (including all original documents); all blank check stock and any work in progress in the cashiering area; all escrow deposits; all cash obtained in collection of principal and interest; and a copy of all computer records maintained on these loan portfolios. These items are sought so that National Heritage may install a servicer to replace TPM.
At a hearing on the appropriateness of entering an order of this type TPM Financial, Inc. appeared by counsel to assert its right under the United States Constitution as well as Delaware law (10 Del.C. § 3104) not to be subject to the jurisdiction of this court. According to TPM it has legal rights in the property claimed by the Commissioner on behalf of National Heritage and its rights may not be adjudicated or adversely affected by court order in its absence. TPM asserts that it cannot coercively be subject to in personam jurisdiction in the State of Delaware. It further asserts that the assets which it holds are not subject to the in rem jurisdiction of this court, and that, therefore, this court does not have any jurisdictional basis necessary to issue the order which the Commissioner requests.
I. Necessary Determination of the Nature and Extent of Property Interests Under the May 25 Order and Section 5911
For the reasons that follow I conclude that this court's order of May 25th was effective to transfer to the Commissioner, as court appointed rehabilitator, all of the rights, titles and legal interests of whatever type belonging to National Heritage. That order is, I believe, entitled to the full faith and credit of sister jurisdictions insofar as it affects that transfer. But that order did not itself affect the scope or nature of the property rights of National Heritage. More particularly it did not create a right of possession to any property to which National Heritage did not have a present right of possession.
Petitioner claims otherwise. She asserts that the language of the May 25 Order created an obligation on the part of all persons everywhere to turn over to the Commissioner all "property" in which National Heritage has (or claims, I suppose) a property interest. Since TPM is an entity that has possession of various documents, books, records and other papers used with respect to the perfection and servicing of mortgage notes that are claimed to be "owned" by National Heritage, the Commissioner asserts that TPM is now under an obligation to turn over possession of those items to her.
*256 The statutory language upon which the May 25 Order was based provides that "... the Commissioner [shall be directed by the court] forthwith to take possession of the property of the insurer...." 18 Del. C. § 5911(a) (1989) (emphasis added). But the term "property" in that statute is not an unproblematic term. What constitutes a person's "property" in a thing is a legal conclusion that of course may be subject to legitimate dispute. Various legal rights can and do coexist with respect to a single piece of land, material object or intangible asset. When that is the case for example when there is a life estate and a remainder interest, or when there is a tenant and fee simple owner of real estate there is not a single owner of the "property," rather there are owners of different though compatible property rights. The phrase "take possession of the property of the insurer" can only mean to take possession of any and all material things or documents of title to which the insurer had the right of possession among its legal interests. The statute cannot mean more. The court may not create new legal rights (i.e., the right to possession if it did not exist) through its ex parte order.[3]
More fundamentally, while Section 5911 requires that the Court direct the Commissioner to take possession of "property," it is not self-executing nor does it purport to have an extra territorial effect; that is, it does not purport to require persons in other states (or indeed even persons in Delaware) to turn over to the Commissioner such property. It simply requires the Commissioner to take appropriate steps to take possession: make demand or institute litigation. If the holder of the property is subject to suit in Delaware, the litigation may be initiated here; if the holder is not subject to suit in this jurisdiction, then Section 5911(a) may require suit elsewhere.
In any such suit, a core issue would be whether National Heritage's "property" included a possessory right. This may be a complicated question requiring a level of inquiry that in this instance the Commissioner has not undertaken; but in all events a jurisdictional basis is required to take it up. We, thus, come to question whether such an adjudication can constitutionally be had in this jurisdiction. TPM claims that this court lacks jurisdiction over it and that such jurisdiction is essential to entering a valid order requiring it to deliver to another property that it holds.
The Commissioner contends that this court has both in rem and in personam jurisdiction permitting such an order.
II. In Personam Jurisdiction
While the Commissioner asserts that this court need not possess in personam jurisdiction over TPM in order to require TPM to turnover the books and records in TPM's possession, she nevertheless asserts that the court does have such jurisdiction. I cannot agree that this court does have in personam jurisdiction over TPM.
It is well-settled that a non-resident must have at least minimum contacts with the forum state for that state to assert in personam jurisdiction over her. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579-80, 53 L.Ed.2d 683 (1977); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The non-resident's "conduct and connection with the forum State ... [must be of such character] that he should reasonably anticipate being haled into court there." World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). A non-resident's entering into a contract with a domicile of the forum State has been held insufficient, in and of itself, to permit the exercise of personal jurisdiction over her. *257 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479-80, 105 S.Ct. 2174, 2185-86, 85 L.Ed.2d 528 (1985).
The facts as they appear for purposes of the motion show that other than entering into a complex commercial contract with a corporation formed under Delaware law and regulated under that law, TPM has had no contact with this state. The contracts between National Heritage and TPM were apparently negotiated in Florida or Nevada and performed entirely outside of this state. The Commissioner, though, contends that National Heritage's Delaware incorporation and regulation are sufficient "connections" to subject TPM to in personam jurisdiction here with respect to any claim arising out of those contracts.
To support this argument, the Commissioner relies on Matter of Mutual Benefit Life Ins. Co., 258 N.J.Super. 356, 609 A.2d 768 (1992), a case involving a domestic insurance company reorganization. That decision held that the lower court possessed the personal jurisdiction required to enjoin three out-of-state banks from foreclosing on the insurer's property. The basis for the injunction was the lower court's earlier order authorizing the New Jersey Commissioner of Insurance to:
(1) take possession of Mutual Benefit Life's ("MBL") real and personal property `of any nature'; (2) conduct its business; and (3) remove the causes and conditions which had made rehabilitation necessary
and restraining all other parties from:
(1) bringing or maintaining any action against MBL [except in the reorganization court]; (2) making or executing any levy upon MBL's property; (3) selling, transferring, wasting or otherwise disbursing or disposing of or encumbering the assets and property of any nature of MBL....
Id. 609 A.2d at 770. In the rehabilitation proceeding an additional provision specifically enjoined all persons claiming a secured, priority or preferred interest in any of MBL's property or assets from engaging in any step to "transfer, sell, encumber, attach, dispose or exercise `purported' rights in or against any property or assets of MBL." Id.
At the time of the action, MBL indirectly owned interests in forty-four real estate projects located in 15 different states. MBL had obtained these interests through its ownership of limited partnerships which had served as the developers of the projects. MBL (or its wholly owned subsidiary) owned 50% or 100% of each of these limited partnerships. In order to finance the real estate development, these limited partnerships had obtained loans from state or local agencies, such as county housing authorities in the area where the respective development was to take place. These agencies had lent funds to the limited partnership and in return received security agreements, an assignment of rents, and a mortgage on the project or a deed of trust. In addition, MBL itself had guaranteed these loans. The state or local agency lending the funds to the limited partnership would in turn finance the loan by issuing bonds. Under the respective indenture agreements relating to these public bonds, the agency would assign its rights and interests to the bond trustee. The three banks that were enjoined served as bond trustees to whom the right to collect under the guaranty was assigned.[4]
MBL's guaranty on the bonds provided that the bond trustee was to proceed against the guarantor before exercising any other remedy. The Court's rehabilitation order either constituted a default or triggered payment obligations under each of the three bond guaranties. When MBL did not satisfy the guaranty, the respective banks either brought foreclosure actions or sought to preserve their right to later do so.[5] The New *258 Jersey Insurance Commissioner sought an injunction in the State of New Jersey to prevent any foreclosure. The banks contended that the Trial Court lacked in personam jurisdiction over them.[6]
On a very thin showing, the Appeals Court held that the banks had sufficient minimum contacts with the State of New Jersey to be constitutionally subjected to New Jersey jurisdiction. The Court recognized that the United States Supreme Court had held in Burger King that the entry into a contract by a non-resident with a domiciliary is alone not a sufficient contact to support in personam jurisdiction, but rather is merely a factor to be "examined in the context of the overall business transactions related to and surrounding the contract and the parties' relationship." Mutual Benefit Life, 609 A.2d at 776. In making such an examination, the New Jersey Court found that the contract had a number of provisions alerting the non-resident of the contract's connection with the State of New Jersey. The combination of these provisions, the Court found, furnished the banks with sufficient notice that they should have reasonably anticipated being haled into a New Jersey court. The Court explicitly based its decision on the fact that the guaranties, which were "integral to marketing of the bonds," "specifically acknowledge[d that] MBL [was] regulated in New Jersey, that its activities require[d] compliance with New Jersey law, and critically, that New Jersey substantive law [was] to apply." Id. at 776-77 (emphasis added). The Court further concluded that the fact that the rehabilitation order constituted a default of the bonds, permitting the guaranty to be exercised, indicated that the parties regarded the New Jersey regulatory authority as "an essential element of MBL's viability in the transaction." Id. at 777. Assuming that the factual conclusion reached in Mutual Benefit Life was sustainable, nevertheless that opinion provides no persuasive authority for the result that the Commissioner seeks in this case.
The content of the contract between TPM and National Heritage differs in a significant, in fact dispositive, way from the contract between the banks and MBL. The TPM/National Heritage contract makes only one reference to the State of Delaware; it recites that National Heritage is incorporated in Delaware. The fact that National Heritage is regulated by Delaware is not stated in the contract. Nor is the contract governed by the laws of the forum state as was the case in Mutual Benefit Life, a fact which that Court regarded as "critical." The National Heritage/TPM contracts are explicitly governed by the law of the State of Florida.
TPM's only connection with Delaware, therefore, is that it contracted with an insurance company legally domiciled in the State of Delaware. In order to find on these facts that TPM had the necessary minimum contacts with Delaware to be subject to in personam jurisdiction, I would be required to hold that any contract with a Delaware domestic insurance company subjects the out-of-state contracting party to in personam jurisdiction in this state with respect to any suit arising from such contract.[7]
The only rationale that could support such a conclusion would be a circular one: one who contracts with an insurer should understand that the regulator of that insurer may, upon being appointed receiver or rehabilitator of the insurer, sue them in the state of the insurer's incorporation. Therefore, since *259 such a person should reasonably apprehend that fact, minimum contacts under the International Shoe, Burger King line of cases will be found to be present.[8]
Insurance companies are not the only regulated entities in our legal order. Banks, public utilities of all sorts, brokers, licensed professionals and indeed many forms of licensed businesses are subject to various degrees of state supervision and regulation. A rule that those who contract with such entities, by reason of the entities' regulated status, will be susceptible to in personam jurisdiction in a state with which they otherwise do not have sufficient contacts to satisfy the Fourteenth Amendment would constitute an exception to the jurisprudence of the International Shoe case and its progeny that has no precedent.
I conclude that this court lacks in personam jurisdiction over TPM and thus cannot effectively order TPM to perform any act.
III. In Rem Jurisdiction
Finally, the Commissioner argues that an absence of personal jurisdiction over TPM is not fatal to her application for a "turnover order." The Commissioner asserts that a rehabilitation proceeding under the UILA is an in rem proceeding; that therefore the court has constructive possession of all of the insurer's property wherever located; and that the purpose of the UILA would be entirely frustrated if this court could not order the turnover of the insurer's assets, wherever located. While I concur that a rehabilitation is an in rem proceeding, I cannot agree that that fact gives this court jurisdiction to enter an order that conclusively or authoritatively adjudicates the right of possession to the property held by TPM and claimed by National Heritage.
Petitioner cites Ballesteros v. N.J. Prop. Liab. Ins. Guar. Ass'n., 530 F.Supp. 1367 (D.N.J.), aff'd, 696 F.2d 980 (3d Cir.1982) which held that a rehabilitation proceeding under the UILA is an in rem proceeding. See also Blackhawk Heating & Plumbing Co., Inc. v. Geeslin, 7th Cir., 530 F.2d 154, 158 (1976).
Ballesteros was an action brought in New Jersey on an insurance policy by a party with an unsatisfied judgment against the policy-holder. Prior to the filing of the New Jersey suit, however, a court in New York had appointed a receiver for the New York insurer under the law of the state of incorporation and had ordered the termination of all insurance contracts. The policyholder in Ballesteros had not had actual notice of this New York action and was not suggested to have been subject to in personam jurisdiction in New York. Nevertheless, noting that a rehabilitation proceeding is an in rem proceeding, "in which the state court generally has exclusive control over the assets of the impaired insurance company," the district court dismissed the case. Ballesteros, 530 F.Supp. at 1371.
From this precedent the Commissioner argues that this court's May 25 Order brought all of National Heritage's property into this court for adjudication of claims relevant to that property and that this court has the judicial power to affect title or possession or any other legal attribute of that property because the property is here. The Commissioner claims that since the property she seeks records, documents and papers held by TPM in Nevada constitutes material that is property of National Heritage, it follows, from the nature of this in rem proceeding that it is here too. That this argument is an utter fiction is not fatal to it but cannot be counted as one of its stronger points.
The petitioner has misunderstood, I believe, the nature of an in rem action of this sort. When it is said that in such an action *260 the property of the corporation is brought into the court, it means that all of the right, title or interest of the corporation are now held subject to court control and that the powers of the corporation are exercised subject to court control. The res that is taken into court is the corporation itself, the fictive entity. But while the corporation is thus taken into court in this sense, it takes things too far to suppose that beyond the corporate entity, all of the corporation's property (right, title and interests including claims) is brought into the court for the purposes of adjudicating adverse claims.
The domiciliary (New York) court referred to in Ballesteros was exercising in rem power over the insured, not its property. It operated upon an obligation of the domestic corporation in receivership. It is elementary that on a proper showing a court of competent jurisdiction may appoint a receiver to judicially dissolve a domestic corporation. See 8 Del.C. § 279. When a corporation is in dissolution all of its obligations are proper claims in the dissolution proceeding.[9] A dissolution proceeding is an in rem action; those who have claims against the corporation can have those claimed corporate obligations affected in the domestic rehabilitation or dissolution, upon notice and opportunity to be heard, whether or not they are subject to in personam jurisdiction in the state where the dissolution or rehabilitation is taking place. This is simply a consequence of the fact that upon dissolution the corporation will cease to exist as a legal entity. But see 8 Del.C. § 279 (court may appoint trustee for dissolved corporation).
But these principles do not extend to claims of the corporation against non-residents. A court supervising a dissolution cannot, simply by reason of the in rem nature of the action, adjudicate corporate claims against non-resident third parties. Rather in that case the court which gives affirmative relief against another (for example, a "turnover order") must have jurisdiction over the person against whom the corporation's claim is asserted. See Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885 (1942) (holding that the full faith and credit clause did not bind a Delaware court to accept a Georgia court's finding in an in rem proceeding where the Delaware court was disposing of local assets); American Druggists' Insurance Co. v. Carlson, W.D. Mich., C.A. No. G85-340, 1989 WL 513218, 1989 U.S. Dist. LEXIS 17719 (1989) (failing to give an Ohio court's order for the turnover of files located in Michigan full faith and credit because the Ohio proceeding was an in rem proceeding which could only bind property located within Ohio).
* * *
Finally, the Commissioner argues that Delaware adoption of the UILA, 18 Del. C. § 5901, et seq., will be rendered ineffective if the Commissioner is required to seek turnover orders in the states in which the assets are located. I cannot accept this assertion as a review of the statute demonstrates that the UILA contemplates just such litigation and expressly establishes a legal structure to facilitate it.
The Appeals Court in Mutual Benefit Life looked closely at the purpose of the UILA finding that its adoption was intended to eliminate some of the difficulties "incurred in the liquidation and reorganization of insurance companies with assets and liabilities located in several states." Mutual Benefit Life, 609 A.2d at 774. The Court found that this purpose was primarily to be effected through six institutions. These institutions were identified as:
(1) the designation of the insurance commissioner of the domicile state as the receiver for an insurer; (2) authority for domiciliary receivers to proceed in non-domiciliary states; (3) vesting of title to assets in the domiciliary receiver; (4) provision for non-domiciliary creditors to have the option to proceed with claims before local ancillary receivers; (5) uniform application of the laws of the domiciliary state to the allowance of preferences among claims; and (6) prevention of preferences *261 for diligent non-domiciliary creditors with advance information.
Id. at 774 (citing Twin City Bank v. Mutual Fire Marine & Inland Ins. Co., 646 F.Supp. 1139, 1141 (S.D.N.Y.1986), aff'd, 812 F.2d 713 (2d Cir.1987).
The Commissioner's effort to construe the UILA's vesting of title to assets in the domiciliary receiver ((3) above) to permit this court to assert jurisdiction over the assets in TPM's possession and order their turnover must fail. This statutory vesting allows no more than does the May 25 Order, as construed above, the vesting in the Commissioner of National Heritage's rights and interests to the extent they existed in National Heritage. Under these six remedial measures of the UILA, there is no authority for this court to order TPM to turnover the assets in question, unless this court has in personam jurisdiction over TPM. The UILA does not and could not effectively grant a court jurisdiction which it could not otherwise constitutionally exercise.[10]
The Commissioner's argument that the purpose of the UILA would be undermined if a single court could not order the turnover of the insurer's assets and effect a gathering of all the property is exaggerated, and is, in all events, irrelevant. To support this assertion, the Commissioner relies upon the finding in Ballesteros that the UILA aimed to create "a uniform, orderly and equitable method of making and processing claims against defunct insurers and ... a fair procedure to distribute the assets of defunct insurers." Ballesteros, 530 F.Supp. at 1370. The Commissioner further asserts that necessary to this orderly process are both the vesting of title and possession of all property in the domiciliary receiver and the centralization of the proceedings in one court.
The Commissioner, however, fails to recognize two important facts. The first is that the UILA envisions a system of reciprocal states all operating under relatively the same or similar statutory provisions through which property in a reciprocal state can be sought. The UILA provides authority for domiciliary receivers to be vested with title to the insurer's property and to proceed on claims concerning such property in nondomiciliary states.[11] See American Druggists' Insurance Co., W.D.Mich., C.A. No. G85-340, 1989 WL 513218 at 1-2, 1989 U.S. Dist. LEXIS 17719 at 5 (holding that the Court would not enforce an Ohio Court's order for the turnover of files and that under the UILA, the receiver of an Ohio insurance company could recover files from a Michigan attorney by filing suit in Michigan). Receivers of insurance companies domiciled in other states may sue in Delaware for assets located in Delaware just as receivers of Delaware insurance companies may sue in other states which have adopted the UILA, such as Nevada where TPM holds the books and records, to recover assets located in the other states.[12] This reciprocal system would not serve a purpose if within a rehabilitation a single court were expected to hear all matters concerning the recovery of out-of-state assets, even insofar as that might entail adjudication of rights of non-residents not subject to suit in the state.
Secondly, the UILA could not permit a court to assert jurisdiction where the Constitution precludes it. As stated above, TPM has not had the minimum contacts with Delaware required by the Due Process Clause to subject TPM to in personam jurisdiction in Delaware nor does this court have in rem jurisdiction over assets (e.g. papers, books, etc.) located outside the state.
* * *
For these reasons I conclude that this court has jurisdiction to substitute the Commissioner *262 for National Heritage with respect to all of National Heritage's legal interests; to make orders reorganizing that entity and affecting its executory obligations under contract; but this court has no jurisdiction authorizing it to issue orders to persons who are not subject to its in personam jurisdiction requiring them to pay money or perform any act. Concluding that TPM is such a person I must decline to enter the order sought.
NOTES
[1] TPM has not been named as a defendant in any action in this jurisdiction nor has it been served with process under any statute. Nevertheless it has appeared by counsel to contest the propriety of the order sought.
[2] Pursuant to the Master Sale Agreement TPM agreed to sell and National Heritage agreed to purchase certain mortgage loans, and related servicing rights, at a purchase price of 100% of the loans' aggregate outstanding principal balance. The Master Loan Sale Agreement also provides that TPM would service the loans at the request of National Heritage for a fee of one-twelfth of one percent of the outstanding principal balance of the loans per month. The Master Loan Sale Agreement contained customary representations and warranties on the part of TPM. The representations and warranties of TPM under the Master Loan Sale Agreement were to survive for a period of eighteen months after closing, which was stated to be held on or before December 31, 1993.
The provisions of the First Addendum to the Master Loan Sale Agreement, dated December 30, 1993, were substantially deleted by the Second Addendum, dated December 31, 1993. For example, the Second Addendum revokes National Heritage's right of first refusal on future TPM sales of mortgage loans and TPM's guarantee of a 9.5% minimum annual rate of return to National Heritage. The Second Addendum also provides that:
the purchase price for the assets would be approximately $54.6 million, an increase of approximately $5 million;
TPM's representations and warranties would be largely eliminated, including, among others, a representation that the loan information given to National Heritage by TPM was materially true and correct;
TPM would be granted a potential profit participation of 50% if National Heritage securitized the purchased assets and would have the right to cause National Heritage to pay $10 million to redeem such profit participation right; National Heritage would be granted the right to compel TPM to redeem its profit participation for the same amount;
if securitization did not occur by August 31, 1994, TPM would be granted the right through August 31, 1995 to repurchase any loan at a price equal to National Heritage's purchase price, together with interest at the annual rate of 9.5%, plus the amount of advances with respect to the loan made by National Heritage to TPM under the Servicing Agreement (see below), less amounts paid under the loan after closing by its obligor.
The Second Addendum further provides that the servicing arrangements between TPM and National Heritage would be governed by a Loan Servicing Agreement between National Heritage and TPM, as servicer (the "Servicing Agreement"). As stated above, under the Servicing Agreement, TPM services the loans and other assets acquired by National Heritage from TPM for a fee of one-twelfth of one percent per month of the outstanding principal balance of the loans and other assets plus reasonable out-of-pocket expenses. Among other things, TPM is required to remit and report to National Heritage all sums received on principal or interest, at such intervals and in such manner as National Heritage may specify, retaining any amounts to which TPM is entitled under the Servicing Agreement. The Servicing Agreement is terminable by TPM on ninety days notice to National Heritage, but National Heritage may not terminate the Servicing Agreement unless the securitization under the Second Addendum has occurred and TPM has received all amounts owing to it in respect of the securitization.
Insofar as the TPM agreements provide for future performance by the parties (other than the mere payment of money for obligations previously incurred), National Heritage contends that they are executory contracts of National Heritage cancellable under the order entered on June 2, 1994. See Sillman, Aff. ¶ 7-14.
[3] Consider for example either of the two examples mentioned above, the holder of a life estate where an insurance company has purchased the remainder or a lessee of an insurance company. In both instances I would think it evident that entry of an ex parte order under Section 5911(a) would not entitled the Commissioner to take possession of the land (i.e., to oust the holder of a life estate or dispossess a tenant on the land under a lease for a term) but could only authorize him to take possession of the rights (the property) of the insurer such as they exist at that time. This example can be generalized. In any instance when there are multiple "properties," the Commissioner succeeds, pursuant to a Section 5911(a) order, only to that right and interest as the insurer itself had.
[4] Each bank served as a bond trustee for a separate bond issue. A Tennessee bank served as trustee for a bond issued by a Tennessee county's housing board; a South Carolina bank served as trustee for two bond series issued by the South Carolina Housing Authority; and finally, a Maryland bank served as trustee for a bond issued by the housing authority of that state.
[5] The Tennessee bank filed a complaint and obtained appointment of a receiver in the Chancery Court of the Tennessee county which had issued the bonds and where the project was located. Prior to the injunctive action, the other two banks had not yet brought foreclosure proceedings, though one indicated its intention to do so and the other wished to preserve its right to do so. Mutual Benefit Life, 609 A.2d at 773-74.
[6] The banks also asserted that there was no statutory basis for the restraints because the properties were not MBL assets, but rather belonged to the limited partnerships. This issue is not relevant to this Court's determination because the New Jersey Court was able to determine the question of whose property the real estate was only because the Court had in personam jurisdiction over the banks.
[7] With respect to corporations formed under Title 8 of the Delaware General Corporation Law, in Newspan, Inc. v. Hearthstone Funding Corp., Del.Ch., C.A. No. 1104, Allen, C., slip op. at 17, 1994 WL 198721, *6 (May 10, 1994), I stated the opinion that a "contract between a Delaware corporation and a nonresident to provide goods or services outside Delaware, or to transact business outside Delaware, which has been negotiated without any contacts with this state, cannot alone serve as a basis for personal jurisdiction over the nonresident arising out of that contract."
[8] One must ask why a person who engages in the single act (or repeated acts) of simply contracting elsewhere for a performance elsewhere should reasonably apprehend the prospect of being haled into a Delaware court. I suppose that, absent a consent, only if the pertinent statutory or common law itself so provided could one conclude that such an expectation did or should have existed. But Mutual Benefit is the only case that the Commissioner offers and it does not involve the stark principle I now consider. More importantly, plainly the Uniform Insurers Liquidation Act ("UILA") does not contemplate that every party who contracts with a domestic insurer is thereby subjected to in personam jurisdiction in the courts of the domiciliary state. See infra Part III.
[9] Creditors must file claims in the court where the liquidation is taking place. See e.g. 19 Am. Jur.2d Corporations §§ 2862 and 2898.
[10] As determined supra, this court does not have in personam jurisdiction over TPM, nor in rem jurisdiction over the assets in TPM's possession.
[11] See the UILA institutions listed in (2) and (3) above, "authority for domiciliary receivers to proceed in non-domiciliary states" and "vesting of title to assets in the domiciliary receiver," respectively.
[12] The Delaware provision found at 18 Del.C. § 5914(c) states that:
[t]he domiciliary receiver of an insurer domiciled in a reciprocal State may sue in this State to recover any assets of such insurer to which he may be entitled under the laws of this State.
The Nevada provision found at Nev.Rev.Stat. § 696B.300.3 (1993) is worded exactly the same.
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337 F.2d 28
Charles E. CRAIG, Appellant,v.UNITED STATES of America, Appellee.
No. 17554.
United States Court of Appeals Eighth Circuit.
October 14, 1964.
Rehearing Denied November 5, 1964.
Jack Holt, Jr., Little Rock, Ark., made argument for appellant and filed brief with John C. Dugan, Little Rock, Ark.
Jeff Davis, Jr., Asst. U. S. Atty., Little Rock, Ark., made argument for appellee and filed brief with Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark.
Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and DELEHANT, District Judge.
VAN OOSTERHOUT, Circuit Judge.
1
Defendant Charles E. Craig appeals from his conviction upon each count of a two count indictment. Count I charges selling and dispensing narcotic drugs in or from a package not having appropriate tax stamp in violation of 26 U.S.C.A. § 4704(a). Count II charges selling the same drugs not in pursuance to a written order on a prescribed form in violation of 26 U.S.C.A. § 4705(a). Defendant was tried to a jury and found guilty on both counts. He was sentenced to five years imprisonment on Count II and two years imprisonment on Count I, said sentences to be served concurrently.
2
Defendant urges that he is entitled to reversal for the following reasons:
3
1. The defense of entrapment was established as a matter of law.
4
2. Prejudicial error in admitting hearsay evidence and other evidence.
5
3. Refusal to give requested instruction "A".
6
We deem it unnecessary to set forth the evidence in detail. While defendant's testimony conflicts with that of the Government witnesses in some respects, defendant does not challenge the sufficiency of the evidence to support his conviction upon both counts except with respect to the entrapment issue.
7
The short answer to defendant's contention that he is entitled to a reversal because he has established entrapment as a matter of law is that defendant did not raise such issue in the trial court. Defendant made no motion for acquittal upon this or any other ground. It is firmly established that the sufficiency of the evidence to support a conviction cannot be urged upon appeal where such issue has not been raised in the trial court. Grant v. United States, 9 Cir., 291 F.2d 746, 748; Middleton v. United States, 4 Cir., 249 F.2d 719, 720; Wayne v. United States, 8 Cir., 138 F.2d 1, 2.
8
While an appellate court has a right to note plain error under criminal rule 52(b), such right should be exercised only in exceptional cases to avoid a clear miscarriage of justice. We find here no basis for invoking the plain error rule. We have examined the record and are satisfied that a fact issue was presented on the entrapment defense and that such issue was fairly submitted to the jury upon proper instruction to which no exceptions were taken. Under such circumstances, "the jury's verdict of guilty is completely dispositive of the asserted defense." Vinyard v. United States, 8 Cir., 335 F.2d 176, 183.
9
Defendant's contention that prejudicial errors were committed in the reception of certain evidence from Mr. Burris, the Government informer, is without merit. Burris testified in substance that he had been informed by a Mr. Clift that defendant was in the market for narcotics. This testimony was stricken on defendant's motion as hearsay and the jury was instructed immediately that such testimony should be disregarded. A motion for mistrial was denied. Moreover, defendant's testimony as a witness shows without question that he was in the market for narcotics. It is unlikely that the hearsay evidence which was promptly stricken had any effect upon the jury's verdict.
10
Defendant also urges that testimony by the informer to the effect that he saw the defendant take narcotic injections on several occasions was improperly admitted. Most of this testimony was received without objection. Some was brought out by examination by defendant's counsel. This evidence appears to be relevant on the entrapment issue. See Neill v. United States, 8 Cir., 225 F. 2d 174. After some such testimony had been received, defendant's counsel stated that his client was not being tried for taking a shot. The United States Attorney then stated the defense counsel opened the inquiry, whereupon the court stated:
11
"Well, he said he took two shots. How he took them, I think is immaterial. The jury understands I am sure. If not, I'll tell them. He is not charged with taking dope. He is charged with selling dope."
12
The United States Attorney offered a proper instruction limiting the effect of the evidence of other offenses. Defendant objected to the giving of such instruction and requested no limiting instruction.
13
We recently had occasion in Evenson v. United States, 8 Cir., 316 F.2d 94, to collect the pertinent authorities to be applied with respect to determining whether prejudicial error has been committed in the reception of evidence. In that case, we held that when the prejudicial error test laid down in Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557, was applied, we found no prejudicial error, stating:
14
"When consideration is given to the strong case made out by the Government, the rather brief, unemphasized reference to appellant's admission of his past record, the prompt and decisive action of the trial court in striking the evidence, and instructing the jury to disregard it, the trial court's appraisal to the effect upon the jury as reflected by his denial of the mistrial motion, and the record as a whole, we feel that we can say with reasonable assurance that the apparently inadvertent reference to appellant's past record did not have any substantial effect upon the jury's verdict." 316 F.2d 94, 96.
15
What we said in Evenson fully applies to the errors here asserted.
16
Defendant as a witness admitted that he had made a trip from Little Rock, Arkansas, to Greenville and Marks, Mississippi, accompanied by Burris and George Moore, for the purpose of obtaining narcotics by means of doctor's prescription and for the purpose of making the acquaintance of doctors who would issue such prescriptions. Defendant furnished $400 to finance the trip and purchases and the parties were successful in obtaining narcotics by means of prescription. Defendant did not participate in seeing the doctor and obtaining the prescription. He admits that he obtained possession of about seventy Dilaudide tablets. Ten of such tablets were involved in the sale charged in the indictment. Defendant sets out his version of the acquisition of possession of the narcotics as follows:
17
"I said `Well, let me hold that stuff that you got there for security. I ain't got no money, no medicine, no nothing. I better have something'. He said `Well, I'll let you hold this dilaudide here, I've got a man who wants this other' — I can't think of the name of him, anyway he said he had a man that wanted that, he said he would let me hold the dilaudide, so I had it."
18
Upon the basis of such testimony, defendant requested instruction "A" which in substance was designed to advise the jury that if defendant was holding the narcotics for another person and subsequently returned the narcotics to such person, he was not guilty of the offenses charged.
19
The indictment charges the defendant with unlawful sale to Snokhous. The court properly charged the jury with respect to the offenses charged. If, as defendant contends, the informer or Moore had some title or interest in the narcotics in the defendant's possession which defendant sold to Snokhous, such would not constitute a defense to the charges here made. The court properly refused to give the instruction.
20
Graham v. United States, 6 Cir., 257 F.2d 724, is of no aid to the defendant. Said case is distinguishable in many respects. Among other things, the defendant there contended that he had no knowledge of the contents of the package left with him for safekeeping. The charge there was based on possession, not on sale as here.
21
We have fully considered all errors urged by the defendant. Our examination of the record convinces us that no prejudicial errors were committed by the trial court and that the defendant has had a fair trial.
22
The judgment appealed from is affirmed.
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367 N.W.2d 85 (1985)
Walter A. JOHNSON, et al., Appellants,
v.
GARAGES, ETC., INC., Respondent.
No. C4-84-1788.
Court of Appeals of Minnesota.
May 7, 1985.
Greggory J. Woods, St. Peter, for appellants.
Andrew Johnson, No. Mankato, for respondent.
Considered and decided by NIERENGARTEN, P.J., and FOLEY and LESLIE, JJ., with oral argument waived.
OPINION
FOLEY, Judge.
The facts in this case are not in dispute. Respondent, Garages, Etc., Inc. admitted that the garage floor it contracted to construct for appellants Walter and Diane Johnson was negligently installed. The only issue to be determined on appeal is *86 whether the trial court applied the correct measure of damages for the breach of contract.
FACTS
This litigation involves a contract dispute. Respondent, Garages, Etc., Inc. (Garages), entered into an agreement with appellants, Walter and Diane Johnson (Johnsons), to build a garage for a contract price of $7,115. The contract states that the cement slab garage floor is to slope three inches from rear to front. Johnsons specifically explained the reason for the sloping floor; they intended to build and maintain special interest automobiles, involving frequent car washing. The sloping floor would facilitate water drainage.
Garages did not build the garage to specification; the floor does not slope three inches. As a result, water pools on the east side of the floor and has caused a portion of the east wall to deteriorate. Also, the front door does not fit flush with the floor.
In January 1984 the Johnsons sued Garages for damages resulting from breach of contract. The case was tried before the court without a jury. At trial, Johnsons testified: (1) the value of their property would have increased approximately $7,100 if the garage had been built as agreed; (2) failure to build the garage with the three inch sloping floor has increased the value of their property only $3,550; (3) replacement cost of the sloping floor would be approximately $2,934.
Garages offered no evidence to dispute the diminution in value of the property or the cost of reconstruction. Garages testified the cost of installing the present floor was $1,296. Garages also offered testimony of remedial solutions other than reconstruction of the floor: (1) adding a drain in the center of the floor, (2) cutting a groove into the cement floor, (3) using a sump pump to drain the water.
The trial court entered judgment in favor of the Johnsons, awarding damages of $1,296, the amount Garages spent in constructing the cement floor, plus $20 to level the front doors.
ISSUE
Did the trial court err in its application of the measure of damages?
ANALYSIS
If the trial court's finding of valuation is within the evidence, the reviewing court will not disturb it. Asp v. O'Brien, 277 N.W.2d 382, 385 (1979). Here, the trial court erred in its application of the measure of damages. In contract, the damage award should place the plaintiffs where they would have been if the contract were performed. Lesmeister v. Dilly, 330 N.W.2d 95, 102 (Minn.1983).
Minnesota law is clear on the appropriate measure of damages for breach of a construction contract.
The preferred measure of damage * * * is to take either the cost of reconstruction in accordance with the contract, if this is possible without unreasonable economic waste, or the difference in the value of the building as contracted for and the value as actually built, if reconstruction would constitute unreasonable waste.
Northern Petrochem Co. v. Thorsen & Thorshov, Inc., 297 Minn. 118, 124, 211 N.W.2d 159, 165 (1973). This measure of damages applies whether the breach of contract is functional or cosmetic. Asp v. O'Brien, 277 N.W.2d at 384. Where the cost of reconstruction exceeds the original cost of construction, the supreme court has found economic waste and held that the appropriate measure of damages was diminution in value. Id.
The only testimony concerning either the cost of reconstruction or diminution in value consisted of two estimates by the Johnsons ($2,934 for reconstruction, $3,550 diminution of value). Garages offered no conflicting *87 evidence. In Lavalle v. Aqualand Pool Co., Inc., 257 N.W.2d 324 (Minn.1977), the supreme court held that an owner's testimony as to the value of his property is competent evidence, and the lack of foundation only goes to the weight of the testimony:
The owner of real property is competent to testify concerning the value it would have had if constructed according to the contract and its value as actually constructed.
Id. at 328.
The trial court awarded damages based on the original cost of constructing the floor rather than either the reconstruction cost or the diminution value. The court could not accept the position that a prospective buyer of the Johnson property would insist on a discount of $3,557.50 because the garage floor did not slope three inches. There is no Minnesota law holding that the measure of damages for breach of a construction contract is the breaching party's cost for that portion of the contract which is in breach. Here, Garages offered no evidence contradicting the Johnsons' two damages estimates. If the trial court was unpersuaded that the Johnson property was diminished by half because of the garage floor which did not slope three inches, it was free to apply a measure of damages based on the cost of reconstructing the floor according to contract specifications. The alternative chosen by the court has no basis in Minnesota law.
DECISION
We reverse the trial court's application of the measure of damages for breach of a construction contract and remand to amend judgment. Under the facts of this case, the appropriate measure of damages was the cost of reconstruction. Therefore, in the interest of judicial economy and to avoid a new trial, we order judgment in the amount of $2,934.
Reversed and remanded.
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The State of TexasAppellee
Fourth Court of Appeals
San Antonio, Texas
Thursday, March 19, 2015
No. 04-14-00643-CR
Lonnie PRICE,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR9144
Honorable Maria Teresa Herr, Judge Presiding
ORDER
The Appellant’s motion for extension of time to file the brief is GRANTED. Time is
extended to March 27, 2015.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of March, 2015.
___________________________________
Keith E. Hottle
Clerk of Court
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515 F.3d 414 (2008)
NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff-Appellee,
v.
LAKE CAROLINE, INC., Defendant-Appellant.
No. 06-61084.
United States Court of Appeals, Fifth Circuit.
January 23, 2008.
*415 *416 John Donelson Brady (argued), Mitchell, McNutt & Sams, Columbus, MS, for Plaintiff-Appellee.
Glenn Gates Taylor (argued), Copeland, Cook, Taylor & Bush, Ridgeland, MS, for Defendant-Appellant.
Before KING, BARKSDALE and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This insurance case primarily involves the issue of whether the instant insurance policy provides coverage for a slander of title claim. The district court concluded that the policy did not provide such coverage and that the insurer had no duty to defend the insured against any such claim. For the reasons stated herein, we affirm.
I. BACKGROUND FACTS
During the 1980's, Lake Caroline, Inc. ("LCI") constructed the Lake Caroline subdivision located in Madison County, Mississippi (the subdivision is hereinafter referred to as "Lake Caroline"). On August 7, 1989, the Madison County Board of Supervisors (the "Board") re-zoned Lake Carolina from "A-1 Agricultural" to "P-1 Planned Unit Development." Accordingly, on December 4, 1989, LCI executed a "Declaration of Covenants, Conditions, and Restrictions for Lake Caroline." LCI also created the Lake Caroline Planned Unit Development ("LCI PUD").
A&F Properties, LLC ("AFP") was interested in constructing and operating a golf course in Lake Caroline. On September 27, 1995, LCI and AFP entered into a "Contract for the Sale and Purchase of Real Properly" (the "Contract") under which LCI agreed to give AFP 154 acres of Lake Caroline (hereinafter referred to as the "Golf Course Lands") in consideration for AFP building and maintaining a golf course for a period of not less than ten years, i.e., until December 31, 2006. The Contract and warranty deed provided that the Golf Course Lands would be subject to zoning ordinances and other governmental regulations. AFP constructed and began operating the golf course in 1996.
On February 25, 1998, the Board adopted the 1998 Master Plan for the LCI PUD. The 1998 Master Plan was, according to LCI, the first plan adopted for the LCI PUD and reflected the then-existing conditions of Lake Caroline, including the existence of the golf course.
In 2003, AFP became disillusioned with running the golf course and instead wanted to residentially develop the Golf Course Lands. AFP twice petitioned the Board in November 2003 and April 2004to rezone the Golf Course Lands to allow for residential development. Both attempts were opposed by LCI, the Lake Caroline Owners' Association, and hundreds of individual homeowners. The Board tabled the November 2003 petition as premature because AFP was contractually obligated to operate the golf course until December 31, 2006. The Board's denial of the April 2004 petition on the same grounds was affirmed on appeal by the Circuit Court of Madison County and then the Mississippi Supreme Court. See A&F Props., LLC v. Madison County Bd. of Supervisors, 933 So.2d 296 (Miss.2006).
On December 9, 2004, AFP filed suit in state court against LCI alleging breach of *417 contract, breach of warranty deed, and slander of title claims. According to the AFP complaint, the Board had initially approved a master plan for Lake Caroline in 1989. However, the Board lost the only physical copy of the 1989 Master Plan, prompting it to adopt a new master plan in 1998. AFP alleges that it knew nothing of the 1998 Master Plan because LCI withheld the fact that it was presenting a new plan to the Board. AFP further alleges that LCI withheld from the Board that AFP was free to make other use of its property after the Contract term expired. AFP also claims that LCI repeatedly misrepresented to the Board that LCI was the only developer within the LCI PUD, implying that AFP was not a developer and did not have rights to develop the subject property. AFP characterizes LCI's conduct as intentional and/or malicious.
LCI owns an insurance policy (the "Policy") issued by Nationwide Mutual Insurance Company ("Nationwide"). On November 17, 2005, Nationwide filed suit in federal court seeking a declaratory judgment that the allegations in the AFP complaint do not trigger its duty to defend under the Policy. The relevant provisions policy are as follows:
Coverage A governs "property damage" and provides, in pertinent part:
We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result.
"Property damage" is defined to include:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.
However, coverage is limited to property damage "caused by an `occurrence' that takes place in the `coverage territory.'" An "occurrence" is defined in the Policy to mean "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Finally, the Policy contains an "expected or intentional conduct" exclusion. Thus, coverage does not apply to property damage that is "expected or intended from the standpoint of the insured."
Coverage B governs "personal and advertising injury" and provides, in pertinent part:
We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "personal and advertising injury" to which this insurance does not apply. We may, at our discretion, investigate any offense and settle any claim or "suit" that may result.
"Personal and advertising injury" is defined in the Policy to include "[o]ral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or *418 organization's goods, products or services." However, the Policy also contains a "knowledge of falsity" exclusion. Thus, coverage does not apply to any "`[p]ersonal and advertising injury' arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity."
On September 28, 2006, the district court entered judgment in favor of Nationwide on the ground that the AFP complaint alleges only intentional conduct thereby triggering the "expected or intentional conduct" exclusion under Coverage A and the "knowledge of falsity" exclusion under Coverage B. Thus, according to the district court, Nationwide has no duty to defend LCI against the AFP complaint because the allegations in that complaint do not arguably fall within the scope of coverage. LCI filed this timely notice of appeal.
II. STANDARD OF REVIEW
We review a district court's, summary judgment ruling de novo, applying the same standard as the district court. Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir.2002). A party is entitled to summary judgment only if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). On a motion for summary judgment, we must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 325 (5th Cir.2004). In reviewing the evidence, we must therefore "refrain from making credibility determinations or weighing the evidence." Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007).
Because this is a diversity case, this court applies the substantive law of Mississippi. Mulberry Square Prods. v. State Farm Fire & Cas. Co., 101 F.3d 414, 420 (5th Cir.1996) (citing Sentry Ins. v. R.J. Weber Co., 2 F.3d 554, 556 (5th Cir.1993)). "The reach of an insurance contract . . . is a matter of law that we review de novo." Id. (quoting Sentry, 2 F.3d at 556).
III. ANALYSIS
"Under Mississippi law, an insurer's duty to defend an action against its insured is measured, in the first instance, by the allegations in the plaintiff's pleadings, and only if the pleadings state facts which bring the injury within the coverage of the policy is the insured required to defend." Mulberry, 101 F.3d at 421 (quoting EEOC v. South. Publ'g Co., 705 F.Supp. 1213, 1215 (S.D.Miss.1988)); see also J.C. Meng v. Bituminous Cas. Corp., 626 F.Supp. 1237, 1240-41 (S.D.Miss.1986). An exception to this rule exists when the insurer is "presented with extrinsic facts, of which the insurer has knowledge or could obtain knowledge by means of a reasonable investigation, that trigger coverage under the policy." Id. at 422 (citing Merchants Co. v. Amer. Motorists Ins. Co., 794 F.Supp. 611, 617 (S.D.Miss.1992)).[1]*419 In such situations, the duty to defend is triggered. Id. In evaluating whether a potential for coverage exists, "we look not to the particular legal theories . . . but to the allegedly tortious conduct underlying the suit." Ingalls Shipbuilding v. FIC, 410 F.3d 214, 225 (5th Cir.2005) (citation omitted). The rules of construction of insurance contracts under Mississippi law are as follows:
First, where an insurance policy is plain and unambiguous, a court must construe that instrument, like other contracts, exactly as written. Second, it reads the policy as a whole, thereby giving effect to all provisions. Third, it must read an insurance policy more strongly against the party drafting the policy and most favorably to the policy holder. Fourth, where it deems the terms of an insurance policy ambiguous or doubtful, it must interpret them most favorably to the insured and against the insurer. Fifth, when an insurance policy is subject to two equally reasonable interpretations, a court must adopt the one giving the greater indemnity to the insured. Sixth, where it discerns no practical difficulty in making the language of an insurance policy free from doubt, it must read any doubtful provision against the insurer. Seventh, it must interpret terms of insurance policies, particularly exclusion clauses, favorably to the insured wherever reasonably possible. Finally, although ambiguities of an insurance policy are construed against the insurer, a court must refrain from altering or changing a policy where, terms are unambiguous, despite resulting hardship on the insured.
Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 382-83 (5th Cir. 1998). With these principles in mind, the first question is whether the allegations in the AFP complaint trigger coverage under the Policy. If not, the next question is whether Nationwide knew of facts or could have reasonably ascertained facts that would have triggered coverage under the Policy. Because the parties focus almost exclusively on Coverage B, we begin our analysis there.
A. Personal and Advertising InjuryCoverage B
The parties agree that the only possibility for coverage under Coverage B arises out of subsection d of the definition "personal and advertising injury," which includes coverage for injuries arising out of "[o]ral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services." Coverage is excluded, however, if the publication was "done by or at the direction of the insured with knowledge of its falsity."
The district court held that because the AFP complaint alleges that LCI's conduct was intentional, the "knowledge of falsity" exclusion applies to preclude coverage. In doing so, the district court erred. The AFP complaint alleges that LCI's conduct was intentional and/or malicious. "Malice" in this context does not require knowledge of falsity. Instead, a party can be deemed to have acted with malice under Mississippi law upon a showing of a reckless disregard for the truth. See Eckman v. Cooper Tire & Rubber Co., 893 So.2d 1049, 1053 (Miss.2005); Bulloch v. City of Pascagoula, *420 574 So.2d 637, 642 (Miss.1990). A reckless disregard for the truth requires only that "the defendant in fact entertained serious doubts as to the truth of his publication." Journal Publ'g Co. v. McCullough, 743 So.2d 352, 361 (Miss.1999) (quoting Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)).
This court has held under Mississippi law that "knowledge of falsity" exclusions do not apply to conduct constituting a "gross and reckless disregard of the truth." EEOC v. South, Publ'g Co., Inc., 894 F.2d 785, 790 (5th Cir.1990); see also Am. Home Assur. Co. v. United Space Alliance, LLC, 378 F.3d 482, 488 (5th Cir. 2004) ("[I]f liability can be imposed without proving that the false statements were made with the knowledge that they were false, the `knowledge of falsity' exclusion will not apply to preclude coverage."). Indeed, limiting the reach of the "knowledge of falsity" exclusion in this regard is consistent with the principle under Mississippi law that exclusions are to be construed in favor of the insured whenever reasonable. Centennial, 149 F.3d at 382-83. Thus, because the AFT complaint alleges that LCI acted with malice, which is defined to include a reckless disregard for the truth, we conclude that the "knowledge of falsity" exclusion does not apply to preclude coverage in this case.
However, we affirm the judgment of the district court on other grounds. See Holtzclaw v. DSC Commc'ns Corp., 255 F.3d 254, 258 (5th Cir.2001) ("We may affirm a summary judgment on any ground supported by the record, even if it is different from that relied on by the district court."). The parties agree that the only claim that even arguably creates the possibility for coverage is the slander of title claim. According to the Mississippi Supreme Court:
"Slander of title" is a phrase commonly employed to describe words or conduct which bring or tend to bring in question the right or title of another to particular property, as distinguished from the disparagement of the property itself. The slander may consist of a statement in writing, printing, or by word of mouth, and may relate to personal as well as real property. . . . [T]he general rule of liability for slander of title is stated as follows: "One who falsely and maliciously publishes matter which brings in question or disparages the title to property, thereby causing special damage to the owner, may be held liable in a civil action for damages."
. . .
Words spoken of property are not in themselves actionable. But the publication of false and malicious statements, disparaging of plaintiff's property or the title thereto, when followed, as a natural, reasonable and proximate result, by special damage to the owner, are actionable. The false statement may consist of an assertion that plaintiff has no title to the property of which he is the ostensible owner, or that his title is defective, or that defendant has an interest in or lien upon the property. Whatever be the statement, however, in order for it to form the basis of a right of action it must have been made, not only falsely, but maliciously.
Walley v. Hunt, 212 Miss. 294, 54 So.2d 393, 396 (1951) (internal quotations and citations omitted). However, the Policy itself expressly limits coverage to the slander of a person or organization or disparagement of a good, product, or service. Although Mississippi courts have not yet addressed this issue, other courts are unanimous in holding that slander of title claims pertain only to real property, which is not a person, organization, good, product, *421 or service. See, e.g., ABM Indus., Inc. v. Zurich Am. Ins. Co., No. C05-3480, 2006 WL 2595944, *26-27 (N.D.Cal. Sept. 11, 2006); U.S. Fid. & Guar. Co. v. Saddle Ridge, L.L.C., No. 98CV2565, 1999 WL 1072905, *5 (D.Kan. Sept. 27, 1999); Kickham Group, Inc. v. Am. Nat'l Fire Ins. Co., No. 3:96CV1823, 1997 WL 600710, *2-3 (N.D.Tex. Sept. 24, 1997); Etchison v. Westfield Ins. Co., No. 5:05CV99, 2006 WL 2796658, 2006 U.S. Dist. LEXIS 71467, *22-29 (N.D.W.V. Sept. 29, 2006); Thompson v. Md. Cas. Co., 84 P.3d 496, 506-07 (Colo.2004); Wylin v. Auto Owners Ins. Co., No. 255669, 2005 WL 2656642, *5, 2005 Mich.App. LEXIS 2568, *13-14 (Mich.Ct.App. Oct. 18, 2005); Acme Constr. Co., Inc. v. Conn Nat'l Indem. Co., No. 81402, 2003 WL 194879, *6-7 (Ohio Ct.App. Jan. 30, 2003); Bank One, N.A. v. Breakers Dev., 208 Wis.2d 230, 559 N.W.2d 911, 912-13 (1997). We see no reason why Mississippi courts would rule differently. Thus, we conclude that Mississippi courts would follow this unanimous trend and conclude that slander of title claims do not trigger coverage under policies that limit coverage to the slander of a person or organization or disparagement of a good, product, or service.
None of the cases cited by LCI compels a different result. Indeed, the polices at issue in each of those cases provided coverage for slander generally and did not limit coverage to the slander of a person or organization or disparagement of a good, product, or service. See, e.g., Valley Improvement Ass'n v. USF&G, 129 F.3d 1108, 1118 (10th Cir.1997) (policy covered damages arising out of "the publication or utterance of a libel or slander or of other defamatory or disparaging material"); Classic Corp. v. Charter Oak Fire Ins. Co., No. 93CV5655, 1995 WL 295824, *1 (C.D.Cal. Feb. 22, 1995) (same); Royce v. Citizens Ins. Co., 219 Mich.App. 537, 557 N.W.2d 144, 147 (1996) (policy covered damages arising out of "libel, slander").
Although we conclude that the policy at issue does not cover slander of title claims, LCI is correct that this court's review is not limited to the particular legal theories alleged in the AFP complaint. See Ingalls, 410 F.3d at 225 ("[W]e look not to the particular legal theories . . . but to the allegedly tortious conduct underlying the suit."); Merchants, 794 F.Supp. at 618 (holding under Mississippi law that duty to defend is triggered "when there is any basis for potential liability under the policy . . . for the allegations raised in the . . . action"); Employers Reinsurance Corp. v. Martin, Gordon & Jones, Inc., 767 F.Supp. 1355, 1359-60 (S.D.Miss.1991) ("[I]t is the facts alleged, not the pleader's legal conclusions, that are relevant to the insurer's duty to defend."); see also Curtis-Universal Inc. V. Sheboygan Emergency Med. Servs., 43 F.3d 1119, 1122 (7th Cir.1994) ("[F]or example, if the complaint alleges facts that if proved would show that the insured had infringed the plaintiffs copyright, the policy kicks in even if the complaint charges the insured only with fraud or intentional infliction of emotional distress."). Thus, as long as the allegations in the AFP complaint make out some claim that has the possibility of triggering coverage, Nationwide has a duty to defend even if the complaint does not pursue that particular legal theory as a basis for relief. As the Seventh Circuit reasoned:
Defamation and disparagement are explicitly covered by the basic policy, and defamation by the umbrella policy. But neither tort is named in the counterclaim. No matter. Coverage does not depend on the characterization of the wrong by the plaintiff. . . . Modern pleading requires the pleading only of a claim, not of a legal theory; and so if a *422 specific tort or other legal wrong named in the insurance policy had to be named in the suit for liability coverage to exist, insurance protection could be lost as the result of a totally inconsequential omission by the drafter of the complaint. Such a rule would also be an invitation to strategic pleading.
Cincinnati Ins. Co. v. E. Att Ins. Co., 260 F.3d 742, 745 (7th Cir.2001).
LCI cites the following allegations that, according to it, serve to trigger Nationwide's duty to defend:
[T]he MCBS, at the request of LCI, approved another Master Plan for the PUD dated February 19, 1998.
When LCI presented the 1998 Master Plan to the MCBS and requested that it be approved, LCI withheld from the MCBS the details of the Contract and Warranty Deed.
LCI withheld from [AFP] the fact that it was presenting to the MCBS, and requesting approval of, the 1998 Master Plan.
As a result of the actions of LCI, the 1998 Master Plan was approved by the MCBS without [AFP] being given an opportunity to advise the MCBS of its contract and deed rights.
LCI opposed [AFP]'s request, using as a basis for its opposition, the 1998 Master Plan which LCI had approved by withholding information from the MCBS and [AFP].
LCI made representations to the MCBS and to the public that it was the only developer of the PUD indicating that [AFP] was not a developer and did not have rights to develop the subject property in accordance with applicable zoning ordinances.
LCI made representations to the MCBS and to the public that [AFP] was prohibited by the Declaration of Covenants, Conditions and Restrictions for Lake Caroline from developing the subject property.
LCI has continued to do all it can to prevent [AFP] from exercising its right to develop the subject property and change its use after December 31, 2006 as contemplated by the Contract and Warranty Deed.
According to LCI, these allegations make out a claim for slander of person or organization or disparagement of goods, products, or services. We disagree. According to the AFP complaint, LCI stated that "[AFP] did not have rights to develop the subject property" and that "[AFP] was prohibited by the Declaration of Covenants . . . from developing the subject property." Moreover, according to the AFP complaint, "LCI has continued to do all it can to prevent [AFP] from exercising its right to develop the subject property and change its use." Assuming that these statements are slanderous or disparaging, they do not slander a person or organization or disparage a good, product, or service. At best, these alleged statements do nothing more than slander AFP's title to the subject property and the Policy does not cover such claims.
Because the allegations in the complaint do not trigger the duty to defend, this court must next address whether Nationwide knew of facts or could have reasonably ascertained facts that would have triggered coverage under the Policy. See Mulberry, 101 F.3d at 422 (citing Merchants. Co., 794 F.Supp. at 617). Here, LCI argues that a reasonable investigation would have revealed that (1) LCI did not make any false statements before the Board, or if any false statements were made by LCI, LCI did not know they were false; (2) AFP's conclusory allegations were unsupported by the evidence; and (3) documents in the state court suit contradicted *423 or called into serious question the validity of AFP's allegations. These additional facts, however, do not trigger coverage or in any way alter our conclusion that AFP is simply alleging a slander of title claim, which the Policy does not cover. Accordingly, we conclude that LCI has not established that the AFP complaint itselfor any additional factstrigger the duty to defend under Coverage B of the Policy.
B. Property DamageCoverage A
LCI also argues that there is a possibility of coverage under Coverage A of the Policy, which covers "property damage" caused by an "occurrence." We reject this argument for three independent reasons. First, the Policy only covers property damage "caused by an `occurrence' that takes place in the `coverage territory.'" Here, there is no suggestion that the alleged slanderous statements took place in Lake Caroline.
Second, it is doubtful that the allegations in the AFP complaint satisfy the Policy's definition of "occurrence," which limits coverage to property damage resulting from "an accident." The Mississippi Supreme Court has cited with favor the following definition of "accident" for insurance coverage purposes:
An accident is anything that happens or is the result of that which is unanticipated and takes place without the insured's foresight or anticipation. . . .
As used in insurance policies it is simply an undersigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force, but it does not mean the natural and ordinary consequences of a negligent act.
Allstate Ins. Co. v. Moulton, 464 So.2d 507, 509 (Miss.1985) (quoting 7A Appleman, Insurance Law and Practice § 4492 (Berdal ed.1979)). We have already held that the allegations in the AFP complaint state only a slander of title claim. Under Mississippi law, such claims require a showing of malice. Walley, 54 So.2d at 396. A party can be deemed to have acted with malice under Mississippi law upon a showing of a reckless disregard for the truth, which requires sufficient evidence to establish that "the defendant in fact entertained serious doubts as to the truth of his publication." McCullough, 743 So.2d at 361 (quoting Harte-Hanks Commc'ns, 491 U.S. at 688, 109 S.Ct. 2678). Such conduct hardly constitutes "an undersigned, sudden, and unexpected event."
Third, LCI concedes that the subject property was not physically injured. The only other property damage that is covered under the Policy is the "[floss of use of tangible property." However, under Mississippi law, injurious falsehood claimssuch as slander of titlemust include a showing of economic or pecuniary damages. See Smith v. Magnolia Lady, Inc., 925 So.2d 898, 906 (Miss.Ct.App. 2006). This court has recognized the abundance of case law holding that "purely economic losses . . . do not constitute the loss of use of tangible property.'" Snug Harbor, Ltd. v. Zurich Ins., 968 F.2d 538, 542 & n. 13 (5th Cir.1992); see also Shelter Mut. Ins. Co. v. Brown, 345. F.Supp.2d 645, 649 (S.D.Miss.2004) (holding that damages arising out of negligent misrepresentation not property damages); Audubon Ins. Co. v. Stefancik, 98 F.Supp.2d 751, 756 (S.D.Miss.1999) (holding that damages arising out of defamation not property damages); State Farm Fire & Cas. Co. v. Brewer, 914 F.Supp. 140, 142 (S.D.Miss.1996) ("The[ ] cases are virtually unanimous in their holdings that damages flowing from misrepresentation and/or fraud have no basis in property damage; rather, the only cognizable damages from *424 such torts are economic and contractual in nature and as such do not fall within the scope of coverage afforded by policies like that of the [Defendant]"); Giddings v. Indus. Indem., 112 Cal.App.3d 213, 169 Cal. Rptr. 278, 281 (1980) ("To construe, the explicit words `tangible property' to include intangible economic interests and property rights requires a strained and farfetched interpretation, doing violence to the plain language of the policies."). In short, the subject property itself was not damaged; if anything, the reputation of AFP's title to the subject property was damaged and the resulting injury was purely economic. The distinction is subtle but important and does not serve to trigger the duty to defend under the Policy.
Even if this court goes beyond the allegations in the AFP complaint, LCI does not isolate any additional facts that would trigger coverage or in any way alter our conclusion that AFP is simply alleging a slander of title claim, which did not occur in Lake Caroline, does not meet the definition of an "occurrence" in the Policy, and does not involve damage that would constitute the loss of use of tangible property as required under the Policy. Accordingly, we conclude that LCI has not established that the AFP complaint itselfor any additional factstrigger the duty to defend under Coverage A of the Policy.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
NOTES
[1] We recognize that this statement of Mississippi law is incorrect to the extent that it implies that an insurer has an absolute duty to conduct a reasonable investigation to determine the true facts before declining to defend or extend coverage. The Mississippi Court of Appeals has since clarified that no such duty exists under Mississippi law and that federal courts interpreting otherwise are wrong. See Terracina Motor Co. v. Universal Underwriters Ins. Co., Case No. 97-CA-00052, 1998 WL 865676, 1998 Miss.App. LEXIS 602, *9-12 (Miss.Ct.App. Jul. 21, 1998). However, that decision was unpublished. In Mississippi, "[o]pinions in cases which have not been designated for publication shall not be cited, quoted or referred to by any court." Miss. R.App. P. 35-B. Thus, it is unclear whether we are free to disregard this court's precedent in Mulberry on, the basis of an unpublished opinion by the Mississippi Court of Appeals. Nonetheless, we need not address this issue because even if Nationwide had such a duty, LCI is unable to articulate any additional facts that would arguably trigger coverage under the Policy.
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694 F.Supp.2d 67 (2010)
Thomas U. KENNEY, on Behalf of Himself and a Class of Persons Similarly Situated, Plaintiff,
v.
STATE STREET CORPORATION; North America Regional Benefits Committee of State Street Corporation; Alison Quirk; Pamela Gormley; Ross McLellan; David O'leary; Skip Curtrell; Jayne Donahue; David Gutschenritter; James Malerba State Street Corporation Investment Committee; and John Does 1-10, Defendants.
Civil Action No. 09-CV-10750-PBS.
United States District Court, D. Massachusetts.
March 15, 2010.
*69 Lauren G. Brunswick, John J. Butts, William H. Paine, Timothy J. Perla, Jeffrey B. Rudman, Wilmer Hale LLP, Boston, MA, for Defendants.
Michael J. Klein, Mark Levine, Edwin J. Mills, Stull Stull & Brody, New York, NY, Kevin T. Peters, Todd & Weld LLP, Boston, MA, for Plaintiff.
MEMORANDUM AND ORDER
SARIS, District Judge.
I. INTRODUCTION
Plaintiff Thomas U. Kenney ("Kenney"), a former State Street employee, brings this action for breach of fiduciary duty under Section 502(a) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461, on behalf of himself and a class of similarly situated participants in the State Street Salary Savings Plan ("the Plan") who chose to invest their retirement savings in State Street's Employee Stock Ownership Plan ("ESOP").
Plaintiff alleges that State Street Corporation, the Benefits and Investment Committees of its Board of Directors, and the individual members thereof (collectively, "Defendants" or "State Street") negligently misrepresented and failed to disclose critical aspects of State Street's financial condition during a class period running from January 3, 2008, to January 20, 2009. During that time, defendants allegedly exposed the company to over $9 billion in potential losses through high-risk assets held in its investment portfolio and four asset-backed commercial paper conduits, which led to a massive decline in State Street's stock value. Plaintiff claims that defendants mismanaged Plan assets and breached their ERISA duties of prudence and loyalty by continuing to invest Plan funds in State Street stock. Additionally, Plaintiff alleges that the individual defendants breached their duty of loyalty by failing to act solely in the Plan participants' interests and that State Street failed to appoint, monitor, and inform the committees and their members so as to ensure adequate management of the Plan.
Defendants have moved to dismiss on the grounds that they made full and truthful disclosures regarding the status of the company and the riskiness of its assets and that plaintiff has failed to rebut the "presumption of prudence" afforded ESOPs under ERISA caselaw. After hearing, the Court ALLOWS in part and DENIES in part defendants' Motion to Dismiss.
*70 II. BACKGROUND
The following facts are drawn principally from plaintiff's Amended Complaint, with all reasonable inferences drawn in his favor. The Court also takes judicial notice of documents on which the Amended Complaint depends, including the Summary Plan Descriptions and SEC filings incorporated therein. (Am. Compl. ¶ 61.) Beddall v. State Street Bank & Trust Co., 137 F.3d 12, 17 (1st Cir.1998) (documents on which a complaint depends and to which it refers "merge[] into the pleadings and the trial court can review [them] in deciding [a Rule 12(b)(6)] motion"); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994) (noting that court may take notice on motion to dismiss of facts present in publicly available government documents). Neither party objects to consideration of State Street's SEC filings.
A. ESOP's Fable
The Plan's purpose is to enable and encourage State Street employees to save for retirement.[1] Participants may invest their contributions across an array of twenty fund options, including the ESOP, which allows employees to allocate up to twenty-five percent of their accounts to State Street's common stock. As of December 31, 2007, approximately 28.2% of total Plan assets were invested in State Street common stock; this percentage dropped to 17% on December 31, 2008, representing an aggregate loss of approximately $200 million in the value of participants' shares.
Described by the Boston Globe as the "world's biggest money manager for institutions," State Street does not make loans, offer credit cards, or engage in other traditional consumer banking activities, but rather acts as a securities custodian. (Am. Compl. ¶ 49.) During the class period, State Street promoted its "reputation for stability and safety," causing the market to perceive it as less vulnerable to market losses than broad-based commercial and investment banks. (Id. ¶ 52.) Despite this reputation, State Street in fact held "high risk investment securities and conduits," which represented a "ticking time bomb" for the company's balance sheet. (Id. ¶¶ 42, 43.) In plaintiff's view, State Street common stock was no longer a prudent investment for the Plan participants during the class period, and the fiduciaries failed to make full and timely disclosure of State Street's true financial and operating condition to them.
B. State Street's Statements
State Street made various statements in press releases and accompanying Form 8-Ks over the course of the class period that allegedly failed to disclose its high risk investments. On January 3, 2008, the start of the class period, State Street issued a press release announcing the establishment of a reserve to address "customer concerns" relating to its investment management arm. (Id. ¶ 44.) Plaintiff claims that Chief Executive Officer Ronald E. Logue said that State Street's business "continues to be very strong," that customer complaints were without merit, and that "we will continue to defend ourselves vigorously against inappropriate claims." (Id.)
On April 15, 2008, State Street issued a Form 8-K with a press release related to the first quarter of 2008, which ended March 31. Logue stated, "I am extremely pleased with this record revenue performance, particularly in today's challenging environment." (Id. ¶ 46.) Similarly, on July 15, 2008, in another Form 8-K, Logue *71 highlighted State Street's "strong performance in the second quarter." (Id. ¶ 48.) Two days later, the Boston Globe reported that State Street was "forecasting no write-downs tied to the collapse of the subprime mortgage market." (Id. ¶ 49.)
On October 1, 2008, the Globe reported, "Investors were concerned that the mounting credit crisis would cause increased losses in their bond holdings and off-balance funds called conduitsa problem that State Street has stressed it is not facing." (Id. ¶ 51.) On October 15, 2008, State Street issued a Form 8-K and press release addressing the third quarter, which ended September 30. Among other things, Logue stated:
Due to the unprecedented market illiquidity in the third quarter, the unrealized after-tax mark-to-market[2] losses at quarter end on State Street's investment portfolio have increased to $3.3 billion and in the asset-backed commercial paper conduits to $2.1 billion. However, as we have said in the past, the asset quality of both our investment portfolio and the conduit program remains high.
(Id. ¶ 52.) Describing the "strong performance" in the first nine months of 2008, he confirmed earlier predictions for expected growth in operating earnings per share approaching the high end of the ten to fifteen percent range. (Id.)
C. "Ticking Time Bomb"
On January 16, 2009, at the end of the class period, State Street filed a Form 8-K updating its risk factor disclosures and warning of approximately $9 billion in potential unrealized losses in its investment portfolio and conduits, almost double the figure cited by Logue in October 2008. (Id. ¶ 53.) The statement indicated that, as "2008 progressed, rating agencies imposed an increasing number of downgrades and credit watches on the securities in our investment portfolio, which contributed to the decline in market values." (Id.) The announcement included a lengthy discussion of risks with respect to the conduits:
Our asset-backed commercial paper conduit program experienced significantly reduced demand for its commercial paper financing beginning in the third quarter of 2007. As the disruption in the credit markets continued through 2008, our liquidity management of the conduits resulted in our purchasing historically high levels of commercial paper from the conducts. During 2008, the amount of commercial paper issued by the conduits on our consolidated balance sheet increased from approximately $2 million as of December 31, 2007 to approximately $292 million as of March 31, 2008, approximately $212 million as of June 30, 2008, and approximately $7.82 billion as of September 30, 2008. . . .
(Id.) At its peak during the fourth quarter of 2008, State Street's overnight holdings of the conduits' commercial paper totaled $8.9 billion. State Street also disclosed:
Purchase of the assets of the conduits pursuant to the contractual agreements described above could affect the size of our consolidated balance sheet and related funding requirements, our capital ratios, and if the conduit assets include unrealized losses, could require us to recognize those losses. As of December 31, 2008, there were $3.6 billion of after tax net unrealized losses associated with portfolio holdings of the conduits. Because of our contractual agreements to purchase assets from the conduits under *72 specified conditions, we are exposed to the credit risks in the conduits' portfolios.[3]
(Id.)
Following these announcements, shares of State Street shed more than half their value, falling from $36.35 on January 16, 2009, to $14.89 on January 20, 2009. One analyst stated that State Street was a "paradox" because its daily operations were "respectable," "but the balance sheet, the unrealized losses in the investment portfolio are very, very substantial." (Id. ¶ 54.) In addition, all three major ratings agencies downgraded the company's main ratings in response to the fourth quarter results. (Id. ¶ 56.) On January 21, 2009, the Boston Globe reported that a banking analyst took Logue "to task for not having disclosed sooner that earnings were likely to be flat this year."[4] (Id. ¶ 59.) Plaintiff and other Plan participants suffered losses to their retirement accounts as a result of the dramatic decline in State Street's share price.
III. LEGAL STANDARD
In order to survive a motion to dismiss, a complaint must allege "a plausible entitlement to relief." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In considering a motion to dismiss for failure to state a claim upon which relief can be granted, courts must take as true the allegations in the plaintiff's pleadings and must make all reasonable inferences in favor of the plaintiff. Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir.2005). The Court may take into consideration the facts set out in public documents attached to the complaint or opposition, or expressly incorporated therein. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993). Consideration of any documents not incorporated or attached to the complaint is forbidden, unless the proceeding is properly converted into one for summary judgment. Id.
"A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotations and citations omitted). "The court need not accept a plaintiff's assertion that a factual allegation satisfies an element of a claim . . . nor must a court infer from the assertion of a legal conclusion that factual allegations could be made that would justify drawing such a conclusion." Cordero-Hernandez v. Hernandez-Ballesteros, 449 F.3d 240, 244 n. 3 (1st Cir.2006).
IV. DISCUSSION
A. Imprudence
Plaintiff claims that defendants violated their fiduciary duties by continuing to invest Plan funds imprudently in State Street stock, knowing that they had exposed the company to potentially billions in investment losses, which ultimately caused the stock's value to drop precipitously. Under the widely-applied holding of Moench v. Robertson, 62 F.3d 553 (3d Cir.1995) ("Moench"), defendants argue that their decision to keep ESOP funds invested in company stock is entitled to a presumption of prudence, which can be overcome only by showing that their actions *73 placed the company at risk of total collapse.
1. Fiduciary Obligations Under ERISA
ERISA subjects fiduciaries to strict obligations, among them a duty of prudence requiring that a fiduciary act "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims." 29 U.S.C. § 1104(a)(1)(B). In accordance with that duty, ERISA fiduciaries must "diversify[] the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so." Id. § 1104(a)(1)(C). The statute states explicitly, however, that eligible individual account plans do not violate the diversification requirement or the prudence requirement "to the extent that it requires diversification . . . by acquisition or holding of qualifying . . . employer securities. . . ." Id. § 1104(a)(2); see also id. §§ 1107(d)(3) (listing ESOPs among the exempt plans) and (d)(5)(A) (listing employer-issued stock as an eligible security).
These exceptions arise from the unique nature of ESOPs, which Congress intended to function as "both an employee retirement benefit plan and a `technique of corporate finance' that would encourage employee ownership." Martin v. Feilen, 965 F.2d 660, 664 (8th Cir.1992) (quoting 129 Cong. Rec. S16629, 16636 (daily ed. Nov. 7, 1983) (statement of Sen. Long)). Since ESOPs generally invest in securities issued by the sponsoring company, they tend to "place[] employee retirement assets at a much greater risk than does the typical diversified ERISA plan." Id. Aside from these exceptions, however, ESOP fiduciaries remain subject to ERISA's strict fiduciary duties. See Donovan v. Cunningham, 716 F.2d 1455, 1466 (5th Cir.1983) (comparing Congressional policies to "encourage the formation of ESOPs" with the "equally forceful" policy of "safeguarding the interests of participants. . . by vigorously enforcing standards of fiduciary responsibility"); In re Ford Motor Co. ERISA Litig., 590 F.Supp.2d 883, 888 (E.D.Mich.2008) ("Courts, therefore, are in the difficult position of attempting to pass on the `prudence' of these sorts of funds without considering what would normally be regarded as their severe underdiversification.").
2. The Moench Presumption
In Moench, the Third Circuit held that "an ESOP fiduciary who invests the assets in employer stock is entitled to a presumption that it acted consistently with ERISA by virtue of that decision. However, the plaintiff may overcome that presumption by establishing that the fiduciary abused its discretion by investing in employer securities." 62 F.3d at 571. "In considering whether the presumption that an ESOP fiduciary who has invested in employer securities has acted consistently with ERISA has been rebutted, courts should be cognizant that as the financial state of the company deteriorates, EPOS fiduciaries who double as directors of the corporation often begin to serve two masters." Id. at 572. The Moench court held that a precipitous decline in stock price and the fiduciaries' knowledge of an impending collapse, together with their conflicted status, may be sufficient to overcome the presumption. Id.; see also Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 255 (5th Cir.2008) (dismissing claim where the company's stock had fallen forty percent but its "viability as a going concern" was not threatened and its "stock was [not] in danger of becoming essentially worthless"); see generally Morrison v. Money-Gram Int'l, Inc., 607 F.Supp.2d 1033, *74 1051-52 (D.Minn.2009) (concluding from a summary of the case law that "an employer on the verge of collapse" is "always sufficient to overcome the Moench presumption," but that "a drop in the price of an employer's stock" is, by itself, "never sufficient").
Although other Circuits have adopted the Moench presumption,[5] the First Circuit has expressly declined to do so. In LaLonde v. Textron, Inc., 369 F.3d 1, 3 (1st Cir.2004), it reversed a decision allowing a motion to dismiss an ERISA prudence challenge where fiduciaries whose company faced bleak future prospects had prohibited diversification of an ESOP. In assessing alleged breaches of ERISA fiduciary duties, the court emphasized the following allegations:
Textron's earnings per share declined by over 70%; Textron initiated a restructuring that was expected to culminate in the termination of over 10% of its workforce; Textron artificially inflated the price of its stock by concealing internal problems that led to its lost earnings and restructuring (malfeasance that was alleged to have been the subject of a federal securities lawsuit brought by Textron's shareholders); and Textron common stock significantly underperformed in comparison to the market as a whole (measured in terms of the Standard & Poor's 500) and Textron's peer group. Despite this bleak scenario and in dereliction of their duties . . . defendants continued to fund the Textron stock fund and prohibited the class from diversifying its retirement accounts.
Id.
In dismissing the complaint, the district court had applied a presumption of prudence drawn from Moench. Id. at 3-4. The First Circuit expressed concern about applying such a presumption, particularly on a motion to dismiss, in an "important and complex area of law . . . [that] is neither mature nor uniform. . . ." Id. at 6. The court declined to adopt the presumption "based only on the statute's text and history, the sparse pleadings, and the few and discordant judicial decisions discussing the issue we face." Id. The holding rejected a "hard-and-fast rule" and emphasized the value of "further record development" as "essential to a reasoned elaboration of that which constitutes a breach of fiduciary duty in this context." Id.
In Bunch v. W.R. Grace & Co., 555 F.3d 1, 4-5, 7-8 (1st Cir.2009), the First Circuit affirmed a summary judgment ruling for defendants accused of breaching their fiduciary duties by terminating an ESOP in advance of a rising market, applying a totality of the circumstances analysis. More significantly, the court rejected the plaintiffs' contention that the Moench presumption operated against defendants who decided to sell company stock:
Appellants seek to induce us to . . . apply a presumption of prudence which is afforded fiduciaries when they decide to retain an employer's stock in falling markets, first articulated in Kuper v. Iovenko, 66 F.3d 1447, 1459 (6th Cir. 1995) and Moench, 62 F.3d at 571-72. The presumption favoring retention in a "stock drop" case serves as a shield for a prudent fiduciary. If applied verbatim in a case such as our own, the purpose of the presumption is controverted and the standard transforms into a sword to be used against the prudent fiduciary. This presumption has not been so applied, and we decline to do so here, as it *75 would effectively lead us to judge a fiduciary's actions in hindsight. . . . It is [defendants'] prudent assessment, and not a presumption of retention, applicable in another context entirely, which controls the disposition of this case.
Id. at 10. The court reaffirmed LaLonde's proposition that record development, not "hard-and-fast" rules, should govern ERISA fiduciary duty cases.[6]Id.
3. Plausibility
As a backstop, State Street insists that the Amended Complaint flunks the plausibility standard mandated by Iqbal and Twombly. Plaintiff has alleged that the plummeting stock value, combined with high risk investments, would have led a reasonable fiduciary to believe that continued investment in the company stock was imprudent. The Amended Complaint states repeatedly that State Street's investment portfolio and conduits held low-quality, "high risk" assets that rendered it "more exposed to stock fluctuations than it disclosed." (Am. Compl. ¶¶ 42, 43, 47, 63.)
Protesting that plaintiff is engaged in Monday-morning-quarterbacking during a severe global recession, defendants argue that allegations of imprudence are implausible in light of State Street's overall strong performance during 2008 in earnings, revenue, and return on equity. They point out that the SEC filings indicate that approximately ninety percent of the investment portfolio's assets and seventy percent of the conduits' assets were AA or AAA rated in any given quarter.[7] (Perla Aff., Ex. L at 20, 35-41; Ex. M at 22, 45-52; Ex. N at 52-66; Ex. P at 77-89.) Moreover, neither program saw any defaults on its securities. (Perla Aff., Ex. L at 36, 38; Ex. M at 46, 49; Ex. N. at 55, 58, 68; Ex. P. at 54, 80, 83.) In defendants' view, plaintiff pleads no facts plausibly suggesting that defendants knew or should have known that State Street common stock would be an imprudent investment during the class period. See Bunch, 555 F.3d at 10 ("Although hindsight is 20/20 . . . that is not the lens by which we view a fiduciary's actions under ERISA.").
However, State Street's use of "off-balance" conduits makes it particularly difficult for a court to determine whether plaintiff's claim of imprudence is viable. *76 The "conduits" are complex, non-transparent investment vehicles, and the "financial models" used to determine when and whether to consolidate their assets and liabilities onto State Street's balance sheet are not well explained by the SEC filings. It is unclear whether the continued off-balance sheet treatment of conduits is an overly aggressive accounting gimmick or a prudent investment strategy. Because the investments are opaque and highly complex, plaintiff must allege sufficient facts to demonstrate that it was imprudent to invest in State Street stock because of the riskiness of these portfolio and conduit assets during the class period. Conclusory allegations of riskiness will not suffice. The Court dismisses the imprudence claim without prejudice.
B. Negligent Misrepresentation and Non-disclosure Claims
Plaintiff claims that State Street's SEC filings "were materially false and misleading in that they misrepresented the truth about the Company, and misleadingly concealed material adverse information," identifying in his Amended Complaint misstatements in four of State Street's dozens of class period filings. (Am. Compl. ¶ 63.)
The Supreme Court has held that ERISA fiduciaries can be liable for statements made to participants in a fiduciary capacity. See Varity Corp. v. Howe, 516 U.S. 489, 504-05, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Courts rule frequently that the incorporation of SEC filings into ERISA plan documents "trigger[s] fiduciary responsibility for the contents of such filings." In re Morgan Stanley, ___ F.Supp.2d ___, ___, 2009 WL 5947139, at *14 (S.D.N.Y.2009) (collecting cases); see also In re Sprint Corp. ERISA Litig., 388 F.Supp.2d 1207, 1226-27 (D.Kan.2004) ("SEC filings were incorporated by reference into the SPDs and prospectuses and. . . Defendants were therefore acting in their ERISA fiduciary capacities when they made those representations."). But see Gearren v. McGraw-Hill Cos., Nos. 08-CV-7890, 09-CV-5450, 690 F.Supp.2d 254, 273, 2010 WL 532315, at *15 (S.D.N.Y. Feb. 10, 2010) ("Defendants who incorporated the SEC documents by reference into the Summary Plan Descriptions did not intentionally connect the content of those SEC filings to statements about plan benefits."); In re Bausch & Lomb Inc. ERISA Litig., No. 06-CV-6297, 2008 WL 5234281, at *7-8 (W.D.N.Y. Dec. 12, 2008) (explaining that "the SPD's incorporation by reference of B & L's SEC filings does not alter" its conclusion that the alleged misstatements "were made in a corporate and not ERISA fiduciary capacity").
1. The January 3, 2008, Form 8-K and Press Release
The first of State Street's alleged misstatements was a Form 8-K and press release issued on January 3, 2008, at the start of the class period. Notwithstanding the establishment of a $618 million reserve to address legal exposure and other costs associated with the poor performance of various fixed-income investments managed by its investment wing, State Street Global Advisors ("SSgA"), plaintiff alleges that "State Street went out of its way . . . to assure the market generally, as well as the Plan Participants, that any such customer concerns were without merit," when they were actually "in large part meritorious and widespread." (Am. Compl. ¶¶ 44, 45.) Plaintiff points particularly to the statement that State Street would "continue to defend [itself] against inappropriate claims." (Id. ¶ 44.) Plaintiff also claims that "as would ultimately be . . . revealed. . . State Street's portfolio was impaired in amounts exceeding the reserve established in January 2008," and notes defendant and State Street CEO Ronald E. Logue's statement that the company's business continued to be "very strong," *77 when, according to plaintiff, it "was not `very strong' at the beginning of 2008. . . ." (Id. ¶¶ 44, 45.)
The press release nowhere states that customer complaints were meritless. The declaration that State Street would resist "inappropriate claims" does not indicate that all or even most customer complaints were frivolous, particularly when immediately following Logue's statement that some customers "have raised concerns that we intend to address." (Id. ¶ 44.) Indeed, State Street established a $618 million reserve to address such complaints. Defendants point out that accounting rules do not even permit the establishment of such a reserve unless a loss is both probable and reasonably subject to estimation. (Def.'s Mem. in Supp. Mot. Dismiss at 13 n. 23.)
The First Circuit and other courts have held in similar contexts that "vague and loosely optimistic statements [are] . . . nonactionable as a matter of law." Gross v. Summa Four, Inc., 93 F.3d 987, 995 (1st Cir.1996), superseded in part on other grounds, 15 U.S.C. 78u-4(b)(2); see also In re Boston Tech., Inc. Sec. Litig., 8 F.Supp.2d 43, 54 (D.Mass.1998) ("The rule covers loose optimism about both an issuers current state of affairs and its future prospects." (emphasis original)). Logue's statement that State Street's business was "very strong" is precisely the sort of corporate macro statement that courts have deemed nonactionable. Greebel v. FTP Software, Inc., 194 F.3d 185, 189, 207 (1st Cir.1999) (dismissing claims about statement that "[s]ales continue to be strong"); In re Parametric Tech. Corp. Sec. Litig., 300 F.Supp.2d 206, 217 (D.Mass.2001) (dismissing claim regarding statement that company was in "strong competitive position").
Furthermore, based on the SEC filings incorporated into the SPD, defendants point out that Logue's statement, which referenced the company's growing revenues, earnings per share, and return on equity, was true. State Street's 2008 Form 10-K did report record revenue, record assets, and increases in earnings per share and return on equity ratios over the prior year. There is no countervailing allegation that State Street should have known that it would suffer large unrealized losses from the conduits and investment portfolio when the press release was issued on January 3, 2008.
2. The April and July Form 8-Ks and Press Releases
Plaintiff challenges another statement by Logue in a Form 8-K and press release dated April 15, 2008, declaring, "I am extremely pleased with this record revenue performance, particularly in today's challenging environment." (Am. Compl. ¶ 46 (internal quotations omitted).) Logue also noted the development of substantial new revenues, the strengthening of State Street's regulatory capital position, and pointed out that the company's general revenue, returns, and earnings per share were in the middle of the ranges that it had predicted for the fiscal year. (Id.) Plaintiff claims:
In fact, the April 15, 2008 announcement, like the earlier January 3, 2008 announcement, portrayed State Street's business and prospects as being better than they were and improperly concealed from the market generally and the Participants in this case the impairment in State Street's portfolio and the fact that State Street held high risk investment securities and conduits during what even State Street admitted was an "unsettled economic environment."
(Id. ¶ 47.)
Plaintiff does not challenge the specific figures cited in the press release relating to State Street's financial performance in *78 the preceding quarter. Rather, he takes issue again with Logue's optimistic characterization. Logue's statement, however, was one of subjective satisfaction. See, e.g., Orton v. Parametric Tech. Corp., 344 F.Supp.2d 290, 300-01 (D.Mass.2004) (dismissing similar subjective opinions "that the [plaintiffs] could not specifically prove or disprove" as nonactionable corporate puffery); In re Peritus Software Servs., Inc. Sec. Litig., 52 F.Supp.2d 211, 220 (D.Mass.1999) (same).
Plaintiff challenges another optimistic statement by Logue in a July 15, 2008, Form 8-K and press release as "portray[ing the company's] business and prospects as being better than they actually were. . . ." (Am. Compl. ¶ 48.) In that instance, Logue explained, "Our strong performance in the second quarter following outstanding performance in the first quarter demonstrates our core business strength and our ability to sustain strong momentum globally." (Id. (internal quotations omitted).) Logue also said, "I am pleased with SSgA's financial performance amid market disruption," predicting growth in operating earnings per share, revenue, and return on equity in the higher range of the company's initial predictions for 2008. (Id.) As a result of these statements, plaintiff alleges that State Street's share price rose significantly from $55.70 on July 14, 2008, to $68.85 on July 17, 2008causing Plan participants to pay more for their stock than they would have had the company's true condition been revealed. (Id. ¶¶ 49, 50.)
As before, Logue's subjective statement that he was pleased with SSgA's performance is not actionable. See, e.g., Orton, 344 F.Supp.2d at 300-01; Peritus, 52 F.Supp.2d at 220. Likewise, his enthusiastic reference to State Street's "strong performance in the second quarter following outstanding performance in the first quarter" is not actionable in light of State Street's actual strong performance in those quarters, indicated in its SEC filings. Logue's projections regarding State Street's return on equity and growth in revenue were also met. See Mear v. Sun Life Assur. Co. of Can. (U.S.)/Keyport Life Ins. Co., No. 06-CV-12143, 2008 WL 245217, at *6-7 (D.Mass. Jan. 24, 2008) (dismissing misrepresentation claim where record refuted claims of falsity).
3. The October 15, 2008, Form 8-K and Press Release
The closest question involves the following passage in State Street's October 15, 2008, press release:
Due to the unprecedented market illiquidity in the third quarter, the unrealized after-tax mark-to-market losses at quarter end on State Street's investment portfolio have increased to $3.3 billion and in the asset-backed commercial paper conduits to $2.1 billion. However, as we have said in the past, the asset quality of both our investment portfolio and the conduit program remains high.
(Perla Aff., Ex. N at 27 (emphasis added); see also Am. Compl. ¶ 52 (highlighting this passage).) Plaintiff claims that the description of the asset quality of the investment portfolio and conduit program "remains high" was a misrepresentation.
State Street responds that the assets in those programs did in fact remain highly rated throughout the class period and that it provided adequate warnings in the SEC filings about the downsides of the investment. See Plumbers' Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 658 F.Supp.2d 299, 305-07 (D.Mass.2009) (dismissing misrepresentation claim where loan documents " `abound with warnings' of the potential perils"); In re the First Marblehead Corp. Sec. Litig., 639 F.Supp.2d 145, 155 & n. 73 (D.Mass. 2009) (noting that a plaintiff fails to plead a non-disclosure claim when SEC filings *79 show disclosure of that which was supposedly concealed). The Form 10-Qs identified the volatility presented by external factors and warned that falling market prices could lead to substantial unrealized losses. (See, e.g., Perla Aff., Ex. G at 63-64.) Similarly, they stated that State Street might be forced to consolidate the conduits' assets and liabilities onto its balance sheet, and acknowledged that "we would recognize an extraordinary loss on the date of consolidation if the fair value of the conduits' liabilities exceeded the fair value of the conduits' assets, as they do currently." (Perla Aff., Ex. I at 45 (emphasis added); see also Perla Aff., Ex. D at 35, 46-48; Ex. F. at 34-35; Ex. G at 34-35; Ex. H at 34-35, 37-38.) In light of these disclosures, State Street argues that the statement that the assets continued to have high quality could not possibly have been misleading.
It is true that in some contexts descriptions of assets as "high quality" have been held to be mere puffery. See, e.g., In re Countrywide Fin. Corp. Sec. Litig., 588 F.Supp.2d 1132, 1144 (C.D.Cal.2008). Here, however, the sanguine statement that the asset quality "remained high" turned out to be misleading. Within months, in the fourth quarter of 2008, the net unrealized losses of the investment portfolio and conduits increased from an aggregate $5.4 billion to an eye-popping $9.1 billion! State Street's overnight holdings of the conduits' commercial paper peaked at $8.9 billion in that quarter. This information prompted a massive decline in State Street's stock in January 2009 and criticism from an experienced banking analyst that State Street had not been more forthcoming.
While there were lengthy, turgid disclosures in the SEC filings, they did not clearly explain the risks posed by "first loss" notes, "monoline insurance," the "financial models," or the "off balance sheet" assets. A Plan beneficiary could reasonably have read Logue's statement to be a pat-on-the-back assurance that, despite the unrealized losses in the third quarter, no further significant losses were foreseeable and there was no reason not to continue investing in the stock. While State Street insists the assets' quality did remain high and the unrealized losses were just an analytical accounting requirement that reflected no true loss in value, this record does not allow the Court to resolve that disputed fact. As such, with all reasonable inferences drawn in plaintiff's favor, he has stated a claim that State Street negligently misrepresented the quality and riskiness of its conduits and investment portfolio assets in the October 15 statement.
C. Remaining Issues
Because the remaining claims for mismanagement of Plan assets, divided loyalty, and failure of State Street properly to appoint, monitor, and inform the remaining defendants contain conclusory claims and derive substantially from plaintiff's imprudence claim, the Court dismisses them without prejudice.
Defendants argue that State Street and the Benefits and Investment Committees are not proper defendants. That is a fact-bound inquiry and should be resolved on summary judgment. See, e.g., In re Cardinal Health, Inc. ERISA Litig., 424 F.Supp.2d 1002, 1030 (S.D.Ohio 2006) (gathering cases).
ORDER
Defendants' Motion to Dismiss [Docket No. 17], is DENIED with respect to the October 15 press release, and ALLOWED without prejudice with respect to the remaining claims.
NOTES
[1] The Plan is a defined contribution 401(k) plan with employee and employer contribution features. It was designed as an individual account plan pursuant to Section 404(c) of ERISA. See 29 U.S.C. § 1104(c).
[2] As defendant explains, mark-to-market accounting refers to the required practice of assigning a current fair market value to each security held by an entity, even if the securities are intended to be held to maturity.
[3] Form 10-Qs throughout the class period had made similar disclosures regarding the conduits, State Street's liquidity guarantees, and the possibility and significance of consolidation.
[4] The Amended Complaint mistakenly lists the date of this article as July 21, 2009.
[5] See, e.g., Pugh v. Tribune Co., 521 F.3d 686, 701 (7th Cir.2008); Kirschbaum, 526 F.3d at 254; Kuper v. Iovenko, 66 F.3d 1447, 1459 (6th Cir. 1995). But cf. In re Syncor ERISA Litig., 516 F.3d 1095, 1102 (9th Cir.2008) ("[T]his Circuit has not yet adopted the Moench presumption, and we decline to do so now.").
[6] Those courts that have adopted Moench have disagreed as to the propriety of applying it at the pleadings stage. Compare In re Hartford Fin. Servs., No. 08-CV-1708, 2010 WL 135186, at *1-2 (D.Conn. Jan. 13, 2010) (declining to apply the presumption on a motion to dismiss), and In re Morgan Stanley ERISA Litig., No. 07-CV-11285, ___ F.Supp.2d ___, ___, 2009 WL 5947139, at *10-11 (S.D.N.Y. Dec. 9, 2009) ("[D]istrict courts in the Second Circuit and elsewhere have viewed the presumption of prudence inappropriate for resolution on a motion to dismiss."), with In re Lehman Bros. Sec. & ERISA Litig., 683 F.Supp.2d 294, 301-03 (S.D.N.Y.2010) (applying Moench on a motion to dismiss). Although the presumption of prudence arose in the summary judgment context, following Twombly, it has been applied increasingly at the pleadings stage. See, e.g., In re Citigroup ERISA Litig., No. 07-CV-9790, 2009 WL 2762708, at *16 (S.D.N.Y. Aug. 31, 2009) ("[F]ollowing the Supreme Court's ruling in Twombly . . . courts have regularly applied Moench at the motion-to-dismiss stage."); Morrison, 607 F.Supp.2d at 1051 ("To say that the presumption of prudence applies at the pleading stage is just another way of saying that plaintiffs must allege facts to demonstrate that they have a non-speculative claim. . . .").
[7] See Standard & Poors, Credit Ratings Definitions, available at http://www.standardand poors.com/ratings/definitions-and-faqs/en/us (AAA and AA are the highest ratings, and connote an issuer that has at least a "very strong capacity to meet its financial commitments"); Self Regulatory Organizations, S.E.C. Release No. 34-36225, 1995 WL 555395, at *2 n. 8 (Sept. 13, 1995) ("Debt rated `AAA' has the highest rating assigned by S & P because the capacity to pay interest and repay principal is extremely strong").
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36 A.3d 24 (2011)
COMMONWEALTH of Pennsylvania, Respondent
v.
Orrin JONES, Petitioner.
No. 111 EM 2011.
Supreme Court of Pennsylvania.
December 15, 2011.
ORDER
PER CURIAM.
AND NOW, this 15th day of December, 2011, the Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc is DENIED.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30241
Plaintiff-Appellee, D.C. No. 1:16-cr-00195-EJL
v.
MEMORANDUM*
JAMES PEIRSOL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
James Peirsol appeals from the district court’s judgment and challenges his
guilty-plea conviction and 200-month sentence for distributing methamphetamine,
in violation of 21 U.S.C. § 841(a)(1). Pursuant to Anders v. California, 386 U.S.
738 (1967), Peirsol’s counsel has filed a brief stating that there are no grounds for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
relief, along with a motion to withdraw as counsel of record. We have provided
Peirsol the opportunity to file a pro se supplemental brief. No pro se supplemental
brief or answering brief has been filed.
Peirsol waived his right to appeal his conviction and sentence. Our
independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80
(1988), discloses no arguable issue as to the validity of the waiver. See United
States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009). We accordingly dismiss
the appeal. See id. at 988.
Counsel’s motion to withdraw is GRANTED.
DISMISSED.
2 17-30241
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Bloostein v Morrison Cohen LLP (2018 NY Slip Op 00036)
Bloostein v Morrison Cohen LLP
2018 NY Slip Op 00036
Decided on January 2, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 2, 2018
Richter, J.P., Tom, Kapnick, Kern, Moulton, JJ.
5355 651242/12
[*1]Jonathan Bloostein, et al., Plaintiffs,
vMorrison Cohen LLP, et al., Defendants.
Morrison Cohen LLP, et al., Third-Party Plaintiffs-Appellants,
vStonebridge Capital, LLC, Third-Party Defendant-Respondent, Brown Rudnick LLP, Third-Party Defendant. [And Fourth Party Action]
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (David Ebert of counsel), for appellants.
Warner & Scheuerman, New York (Jonathon D. Warner of counsel), for respondent.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered July 12, 2016, which, to the extent appealed from as limited by the briefs, granted third-party defendant Stonebridge Capital, LLC's motion to dismiss the claim for contribution as against it, unanimously affirmed, without costs.
Defendants/third-party plaintiffs are not entitled to contribution, because plaintiffs (investors) seek to recover for purely economic loss resulting from a breach of contract (Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21 [1987]; Children's Corner Learning Ctr. v A. Miranda Contr. Corp., 64 AD3d 318, 324 [1st Dept 2009]).
The allegations that third-party defendant Stonebridge, a financial servicer, signed transaction documents without reviewing them or alerting other parties to a last-minute change fall squarely within the scope of Stonebridge's contractual duties to assist investors in the execution of the transaction. The third-party complaint fails to allege that Stonebridge owed a duty of reasonable care to the investors independent of their agreement (see Fidelity & Deposit Co. of Md. v Levine, Levine & Meyrowitz, CPAs, P.C., 66 AD3d 514 [1st Dept 2009]; see also New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]).
Nor did Stonebridge's role as a financial services provider give rise to an extra-contractual duty of care (Starr v Fuoco Group LLP, 137 AD3d 634 [1st Dept 2016], lv dismissed 28 NY3d 1083 [2016]). Further, the investors expressly acknowledged in their agreement with Stonebridge that, with respect to its work structuring the subject transaction, it was not a fiduciary, and they were not relying on it for legal, tax, or accounting advice.
We have considered third-party plaintiffs' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 2, 2018
CLERK
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73 Wyo. 345 (1955)
278 P.2d 807
GEORGE LASICH, Plaintiff and Appellant
vs.
CLARENCE W. WIMPENNEY, Defendant Respondent.
GEORGE LASICH, Plaintiff and Respondent
vs.
CLARENCE W. WIMPENNEY, Defendant and Appellant.
Nos. 2634 and 2638
Supreme Court of Wyoming
January 18, 1955
*347 For the plaintiff and appellant in Case No. 2634 and respondent in Case No. 2638, the causes were submitted upon the brief of Moran and Murphy of Riverton, Wyoming, and oral argument by Mr. R. Lauren Moran.
For the defendant and respondent in Case No. 2634 and defendant and appellant in Case No. 2638, the causes were submitted upon the brief and also oral argument of W.M. Haight of Riverton, Wyoming.
OPINION
RINER, Chief Justice
CASE NO. 2634
The plaintiff and appellant, George Lasich, is hereinafter usually designated "appellant" or by his surname, Lasich. The respondent, Clarence Wimpenney, will also be usually referred to herein as aligned in this court or by his surname, Wimpenney.
Lasich as principal contractor undertook to erect a dwelling house on a certain lot in Riverton, Wyoming. This lot was owned by Wimpenney, and the dwelling house aforesaid was built by Lasich for the owner. It developed that Lasich was not so situated financially as to enable him to construct this building in accord with a certain written contract which the parties executed after a number of conferences about the matter. This contract thus signed by Lasich and Wimpenney was couched in this language:
"BUILDING CONTRACT
"THIS AGREEMENT made and entered into this first day of August, 1951, by and between C. Wimpenney, hereinafter referred to as the owner, and George Lasich, hereinafter referred to as the contractor, both of Riverton, Wyoming.
"WITNESSETH:
"FOR AN (sic) IN CONSIDERATION HEREINAFTER STATED TO BE PAID BY THE OWNER, *352 the contractor hereby covenants and agrees to and with the owner to construct a dwelling house upon Lot 7 in Block 24 of Ashgrove Addition to the Town of Riverton, Fremont County, Wyoming, in accordance with the following terms and conditions:
"1. PLANS AND SPECIFICATIONS. Said building will be of frame construction and in accordance with the plans and specifications heretofore agreed upon and approved by the parties.
"2. MATERIALS AND LABOR. All materials and labor necessary to construct said building will be furnished by the contractor, and said materials will be of good quality, as specified, and all work and labor will be performed in a good and workmanlike manner to the reasonable satisfaction of the owner.
"3. TIME. Construction will start immediately after the execution of these presents and will continue without interruption or delay to completion. The contractor will keep an adequate number of workmen employed on the building at all times to insure its completion by December 1, 1951. The contractor, however, will not be liable for work stopages (sic) occasioned by labor or material shortages which he is unable to avoid with the exercise of reasonable diligence. If, however the contractor does not complete the building, under the terms above stated, by December 1, 1951, a penalty of twenty five dollars per day may be assessed by the owner, for each day after December 1, 1951, until the building is fully completed and this penalty of twenty five dollars per day may be deducted by the owner from the final payment, as provided below in this contract.
"4. LIEN CLEARANCE. Upon completion of said building the contractor will furnish satisfactory evidence that all materials and labor have been paid in full before final payment under this contract shall be due.
"CHANGES. The owner shall have the privilege of making minor changes in the construction plans and the contract price shall be adjusted accordingly but no changes so made shall increase the contract price unless the amount thereof is mutally (sic) agreed upon *353 in advance and evidenced by written menorandums (sic) signed by the parties.
"In consideration of the foregoing the owner covenants and agrees to and with the contractor to pay him for the construction of said building the sum of twenty seven thousand, nine hundred seventy eight dollars ($27,978.00) which shall be due and payable as follows:
"a. Seven thousand Dollars ($7,000.00) of the contract price shall be due and payable to the contractor when the concrete work for the foundation and basement is completed and the forms removed.
"b. An additional Five Thousand Dollars ($5,000.00) shall be due and payable when the outside walls are up and the roof is completed.
"c. An additional Five Thousand Dollars ($5,000.00) shall be due and payable when the plastering is completed.
"d. The balance of the contract price, less the amount of Five Hundred Dollars ($500.00) shall be due and payable when the house is completed.
"e. The amount of Five Hundred Dollars ($500.00) mentioned above in item (d.) is withheld as a guarantee that the materials and wormanship (sic) on this contract will be satisfactory and for the protection of the owner in case any defects that may show up or develope (sic) within three months after the completion of this contract, which the contractor agrees to correct, at his expense.
"f. The withheld amount of Five Hundred Dollars ($500.00) becomes due and payable three months after the completion of this contract, under the terms stipulated in item "e".
"The owner shall have the privilege of paying, as part of the contract price, all material bills as they accrue in order to obtain any discounts available, and the amounts so paid, plus the amount of such discounts, shall be credited on that portion of the contract price next accruing, as provided for in the preceding paragraph. This provision particularly pertains to lumber *354 and all materials purchased from the Riverton Lumber Company, on which a 5% discount is to be allowed and on the M.J. Gilpatric (sic) Construction Company's contract on which a discount of 5% is to be allowed and on the heating unit on which a 10% discount is to be allowed, if paid for at the end of each calendar month.
"The contractor is to have the building fully insured as the construction of same proceeds.
"Any and all materials left over from the construction of the house are to be returned to the seller of same for the credit of C. Wimpenney, owner.
"Included in this contract are the following items:
All cabinets Book cases Kitchen table
Flower beds in and out of house, Mail, Milk and paper recepticals (sic)
Fence Cement curb on alley side so as to avoid hand triming (sic)
Cement slab for incinerator Side Walk to alley Clothes line
Sod removal to fill in where tree stumps were.
Lawn to be graded all ready for seeding.
Copper to be used for all plumbing.
Copper for all screening.
"ALLOWANCES FROM "Not included in original
ORIGINAL CONTRACT contract price
PRICE "Removal of tree stumps
"For garage not being in front of house.
sealed as originally "Side walk repairs one
planned will be slab in front of both
$114.24 lots in outside walks.
"NOTE In the event "Extra cost of asbestos
that the owner decides shingles over cedar will
to have the be $99.00 which allows
garage sealed as for painting sav.
discussed with the "Extra cost to screens and
contractor it will breaseway (sic) with
be done at $114.24 copper screens and
the amount allowed doors will be $87.00
above for the "Extra cost for shower
non-sealing. bath up stairs complete
will be $212.00
*355 "IN WITNESS WHEREOF THE PARTIES HAVE HEREUNTO SUBCRIED (sic) THEIR NAMES AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
/s/ C. Wimpenney OWNER
/s/ George Lasich CONTRACTOR"
Attached to this contract was a Federal Housing Administration printed form entitled "Description of Materials," generally used at that time, and signed by George Lasich, the contractor. Both the contract and the form entitled "Description of Materials" were offered in evidence by Lasich and came into the record as part of his case.
The consequence was that no less than nine mechanics' lien statements were filed in the Clerk's Office of Fremont County against Lasich as contractor and Wimpenney as owner. As required by law, nine actions were instituted in the District Court of Fremont seeking foreclosure of the liens and sale of Wimpenney's property. To these actions Lasich and Wimpenney filed separate answers Lasich as contractor and Wimpenney as owner. Each of these suits contained two separate causes of action. The first cause of action was directed against Lasich for materials and labor supplied him for the construction of the house aforesaid, and the second against both Lasich and Wimpenney for the foreclosure of liens against the Wimpenney property. To these actions Wimpenney filed answers which were substantially similar in each case. Lasich also filed an answer to the petitions in these actions wherein he admitted that the several lien statements of account were correct and that they were owing to the several plaintiffs. Wimpenney in his answers to these foreclosure petitions requested that the lien rights of the representative plaintiffs in and to his property be determined, that an accounting be had between Lasich and Wimpenney, and that judgment be *356 entered against Lasich for any amount which might be found to be due the lien claimants. Wimpenney asked also that the nine causes of action be consolidated. The record shows that Lasich also moved for a consolidation of the nine causes. On May 31, 1952, the causes numbered 7957 to and including 7965 were consolidated by an order of court for trial. Lasich filed a written demand for a trial before a jury of the issues arising between him and Wimpenney in these several consolidated causes. This demand was accompanied with the deposit of a jury fee of twelve dollars as directed by law. However, the request for a jury trial of the consolidated actions was denied by the court as being not filed at the time required by the order of court for filing the reply in the case.
There were a number of other pleadings, but the ultimate result was that judgment was entered on Lasich's answer acknowledging the plaintiffs' claims for labor and materials were correct. The second causes of action as they pertained to Wimpenney were dismissed. Lasich was directed by the court to file a new petition in the consolidated causes, and Wimpenney was ordered to answer this petition within a fixed time. The order also provided for the setting of the cause for trial on June 10, 1953. This date was subsequently changed to June 16, 1953. At that time the issues between the parties were tried before the court without a jury. The petition of Lasich, ordered to be filed as aforesaid, contained four separate causes of action embracing many allegations additional to those set out in his cross-petition which had been filed in connection with his answer to the petitions of the plaintiffs, the lien claimants, and to the separate answer of Wimpenney. The third and fourth causes of action appearing in Lasich's petition filed pursuant to the court order aforesaid were based upon the theory of reasonable *357 value of the services in supervising the purchase of the house furnishings and their arrangement in the new house and also the reasonable value of Lasich's services in overseeing the construction work in erecting the new house for Wimpenney. These services were either to be rendered gratis or were included in the amount agreed upon in the formal written contract executed by both Lasich and Wimpenney. As will appear subsequently herein, counsel for Lasich insisted that the parties had abandoned or abrogated that written contract. The trial court rejected this view of Lasich's counsel and found that the written contract had not been abandoned or abrogated. See discussion of the matter infra. Wimpenney filed an answer to this petition of Lasich's and at the same time filed a cross-petition against Lasich. To this pleading Lasich filed a reply and also an answer to Wimpenney's cross-petition.
As above stated, the cause was tried by the court and Findings of Fact and Conclusions of Law were made; and an accounting was also embodied as between Wimpenney and Lasich in the judgment which followed these findings and conclusions. The court found for the plaintiff, Lasich, in the sum of $1,201.51 on his first cause of action, $175.00 on his second cause of action, and dismissed his third and fourth causes of action. From this judgment Lasich has appealed to this court by the direct appeal procedure. The defendant, Wimpenney, also appealed from this judgment; as a consequence of which, there were two cases filed in this Court based on the same record.
It is strenuously insisted on behalf of Lasich that the District Court committed prejudicial error by denying Lasich's demand for a jury. The District Court's reason assigned for doing so was that this request was not timely filed. So far as we can tell from *358 the confused state of the record before us, the trial court was right in its assigned reason for denying a jury trial. But aside from this, the case as finally developed appeared to be one for the foreclosure of certain mechanics' liens; and, also, an accounting between Lasich and Wimpenney was involved concerning these matters.
Our mechanic's lien law was in large measure taken from that of the State of Missouri. In Becker v. Hopper, 23 Wyo. 209, 147 P. 1085, 1086, Mr. Chief Justice Potter said:
"... while our mechanics' lien statute, as heretofore declared by this court, appears to have been taken from Missouri, the section of our statute with reference to parties in an action to enforce the lien is not the same as the corresponding section of the Missouri statute, but, instead of the provision that `the parties to the contract' shall be made parties, it is declared by our statute that `the parties to the controversy shall * * * be made parties.'"
In Huggins v. Hill, Mo., 236 S.W. 1051, 1053, a mechanic's lien case, the Supreme Court of Missouri pointed out that:
"The statute under which this suit was brought makes the case one in equity. Laws of 1911, p. 314. Not only so, but the case is (without the statute) one in equity, because one of its purposes is to have the court determine priority of liens. So that, not only by the terms of the statute, but by the subject-matter of the suit, this case is one in equity, and to its hearing here we must apply the rules of equity in such appeals."
In Rust Sash and Door Company v. Bryant, Mo. App., 124 S.W.2d 544, 549, also a mechanic's lien case, the Kansas City Court of Appeals of Missouri cited Huggins v. Hill, supra, and said:
*359 "This is a proceeding in equity in every sense of the word and for every purpose. Huggins v. Hill, Mo.Sup., 236 S.W. 1051, 1053."
In Selfridge v. Leonard-Heffner Machinery Co., 51 Colo. 314, 117 P. 158, 159, the Supreme Court of Colorado remarked that:
"Proceedings to foreclose mechanics' liens are in their nature equitable, and are necessarily governed by the rules pertaining to chancery practice."
We find also that 36 Am. Jur. 152, states as concerning the nature and form of remedy relative to mechanics' liens that:
"However, where the distinction between actions at law and suits in equity is maintained, such proceedings are treated as suits in equity, and they are generally treated as being equitable in nature, irrespective of whether the distinction between suits at law and in chancery has been abolished."
It may be well recalled at this point the familiar principle of equity practice as stated by Mr. Justice Van Devanter in Kinney-Coastal Oil Company v. Kieffer, 277 U.S. 488, 48 S.Ct. 580, 72 L.Ed. 961, 967, that:
"It is a general rule that a court of equity, in a suit of which it has and takes cognizance, may administer complete relief between the parties, even though this involves the determination of legal rights which otherwise would not be within the range of its authority."
The court last mentioned in Sheffield Furnace Company v. Witherow, 149 U.S. 574, 579, 13 S.Ct. 936, 37 L.Ed. 853, speaking through Mr. Justice Brewer, also said:
"And the foreclosure of a mechanics' lien is essentially an equitable proceeding. As said by Mr. Justice Field, speaking for the court in Davis v. Alvord, 94 U.S. 545, 546 (24:283, 284): `It is essentially a suit in equity, requiring specific directions for the sale of the property, such as are usually given upon the foreclosure of mortgages and sale of mortgaged premises.'"
*360 Additionally, we may observe that 1 Am. Jur. 297 declares that:
"An action for an accounting under the code system of procedure usually invokes the equity powers of the court."
So 1 C.J.S. 645 asserts that:
"Jurisdiction in matters of account proper for an action of account was originally exercised exclusively by courts of law, but owing to the inadequacy of the remedies afforded by the ancient common-law action of account, and the delay and expense involved in such action, courts of equity early assumed jurisdiction, and in some states the statute expressly confers jurisdiction on equity in matters of account. Such jurisdiction is now firmly established and is based on the inadequacy of the remedy at law."
We conclude there is no merit in this contention on the part of Lasich.
It should not be overlooked that we are obliged to view this record of nearly a thousand pages of testimony and exhibits in the light of certain rules which this court has in time past frequently announced and followed when a party defeated in the trial court has brought the case here for review, viz., quoting from an earlier case in Jacoby v. Town of City of Gillette, 62
Wyo. 487, 174 P,2d 505, 506, this was said:
"`... it must be borne in mind that the appellate court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it.'" (See also other decisions of this Court there listed.)
It should be remembered also that in Christensen v. McCann, 41 Wyo. 101, 282, P. 1061, 1062, it was announced that:
*361 "... under the familiar rule of appellate procedure, so often adverted to by this court, we can only look into the record to see if there is substantial evidence therein to support the findings of the court below. If there is, we cannot review the facts, even though, were we hearing the case originally, we might feel inclined to come to a conclusion different from that reached by the trial court."
Counsel for appellant further insist that the written contract signed by both Lasich and Wimpenney was abrogated by the parties. We are inclined to think that in taking this position counsel for appellant are mistaken for several reasons.
In its findings of fact, the trial court held that:
"Said house was constructed under said contract and said contract was never abandoned by the parties."
And 17 C.J.S. 1229 states that:
"One asserting that a contract has been abrogated by agreement has the burden of proof."
The trial court evidently thought that this essential proof did not appear in the record. There is certainly plenty of evidence in the record to sustain the view adopted by the trial court.
We should not overlook that this Court itself has had occasion to say in Snowball v. Maney Bros. & Co., 39 Wyo. 84, 270 P. 167, 171, that:
"This court has already clearly laid down what the rule should be as to the continued existence of a written contract which provides for alterations, when the work under the contract as altered has been carried out." (Citing Hood v. Smiley, 5 Wyo. 70, 36 P. 856.)
This cited Hood v. Smiley case involved a building contract. Changes were made in the plans and specifications, and these were followed in erecting the building. As in the case at bar, the contractor claimed that *362 the original written contract was abrogated and did not sue upon it but upon a quantum meruit. This Court declined to adopt the contractor's view of the matter, and this was said (36 P. 856, 857):
"The plaintiff in his reply admitted the making of the contract, and upon the trial introduced in evidence the plans of the house he had agreed to erect. Under such circumstances, the presumption is that the contract continued until something to the contrary was shown. It is the common experience of men that changes and alterations in the original plans and specifications of buildings are the rule, and not the exception, and the legal rule seems to be well established, as stated by counsel for plaintiff in error, `that where additions are ordered to be made, and are made, to a building which a workman has contracted to furnish for a certain sum, the original contract is held to exist as far as it can be traced to have been followed, and the excess must be paid for according to its reasonable value;' and it is only where the alterations and changes are so great that it is impossible to follow the original contract that it will be deemed to have been wholly abandoned, so that the contractor can recover upon a quantum meruit. So long as it can be traced, it is binding upon both of the parties, and, when once shown to have existed, the burden is upon the party who claims its abandonment, and thereby seeks to lay down another measure of the value of the work than that agreed upon by both parties to the contract. It is, we think, entirely clear from the record that the court did not conclude from the evidence that the original contract had been abandoned, and we are of opinion that this conclusion was entirely authorized by the testimony of plaintiff alone."
So the recent text 9 Am. Jur. 50, considering the subject of building contracts in accord with the rule given in the Hood case, supra, states that:
"When a building is in process of construction, and additions or alterations are made, the original contract, unless it be so entirely abandoned that it is impossible to trace it and say to what part of the work it *363 shall be applied, is held still to exist, and to be binding on the parties so far as it can be followed. The additions or alterations, if the expense of the work is thereby increased, may be the subject of a new contract, either express or implied, but they do not affect the original contract, which still remains in force."
Accordingly, we have reached the conclusion that appellant's counsel were mistaken in adopting the view that the written contract signed by Lasich and Wimpenney was abrogated and abandoned. We think that counsel were in error, therefore, in presenting their proofs on that theory, although we find in their brief this statement:
"Only one question is now or ever has been presented in this case: What are the rights and duties of the owner and contractor toward each other with respect to the building, and that question, in turn, is determined by the determination of whether or not the building was constructed under a specific expressed contract or whether the original contract was abandoned by the parties and an implied contract substituted in its place. That question determined, all of the remainder of the case falls into place."
Appellant asserts also that when Wimpenney paid the amount due the contractors and material men the amounts for which these parties were given judgments by the court Lasich as joint obligor was released from his liability under them and accordingly the judgment cannot stand. We fail to see how Lasich can be regarded as a joint obligor in a judgment undertaking to foreclose a mechanic's lien under our law. It is not a proceeding in personam but in rem. 57 C.J.S. 1002 states that:
"A judgment or decree in a mechanic's lien proceeding, in so far as it declares and authorizes the enforcement of a lien on the property involved, is to be regarded as a judgment in rem against the specific property; a judgment in personam only, and not in rem, is not sufficient to establish the lien."
*364 The same text, 57 C.J.S., also says at page 873:
"A mechanic's lien proceeding, in so far as it is directed primarily to charging the particular property with the lien, is generally regarded as a proceeding in rem, or as a proceeding which is quasi in rem, or in the nature of a proceeding in rem, and does not require a judgment in personam."
We observe appellant's brief asserts that:
"... no dispute existed as to correctness of the amounts due lien claimants in these several suits. Had Appellant been financially able they would have been paid and final accounting had with the owner. No dispute is made of the fact that any amounts paid by the owner in these respects would have been taken into account in any final settlement." (Italics supplied.)
It is apparent that Lasich could not pay the bills he incurred in connection with the house he was employed to erect; that being so, it is likewise evident that Wimpenney in paying the amounts due for labor and materials followed the only course open to him to protect his property. That he could do this and enforce the rights he had acquired against Lasich is reasonably clear in both law and logic (see C.J.S. citations, supra). 36 Am. Jur. 171 is in accord with the Wyoming citations above set forth, for that text says:
"A judgment entered on a mechanic's lien has the characteristics of a judgment in rem."
At this point, we should remember that paragraph number four of the written contract aforesaid executed by both Lasich and Wimpenney states:
"4. LIEN CLEARANCE. Upon completion of said building the contractor will furnish satisfactory evidence that all materials and labors have been paid in full before final payment under this contract shall be due."
Concerning the rights of Wimpenney in paying off Lasich's obligations in order to protect Wimpenney's *365 property, the case of Bagaglio v. Paolino, 35 R.I. 171, 85 A. 1048, 44 L.R.A. (NS) 80, is instructive. That was a mechanic's lien case presenting some features resembling those of the case at bar. A statement in the court's opinion is, we think, of aid here; and we quote it as follows:
"The plaintiffs, husband and wife, on January 4, 1911, entered into a written contract with the defendants for the construction of a house, upon land owned by the plaintiffs in the town of Barrington, for the sum of $2,000. Under the terms of the contract the house was to be completed by April 30, 1911.
"The contract also provided for the payment of the contract price in four installments of $500 each; the first three payments to be made, from time to time, as the work progressed, and the last payment when the house was completed. The plaintiffs made two payments to the defendants, the first of $500 and the second of $400; a deduction of $100 having been allowed by the defendants on account of unsatisfactory work. The house was not completed by April 30, 1911. After waiting a month, observing the disinclination of the defendants to finish it, and learning that they had not paid for the lumber and materials already used in the construction thereof, and that some of the creditors of the defendants had filed, and others were contemplating the filing, of liens for the recovery of the amounts due them, the plaintiffs notified the defendants to proceed no further with the work, and thereupon undertook to finish the same themselves as nearly in accordance with the original plans as the work already done would permit, and to discharge such liens as had been placed upon the property and pay such claims as might be made the basis of liens thereafter."
While the appellate court reversed the judgment below in that case because the correctness of the claim for labor and materials had not been established as it has been in the case at bar the Supreme Court of Rhode Island nevertheless said:
*366 "Undoubtedly the plaintiffs would have the right to discharge a perfected lien that is, one which had been carried to a final judgment and charge the amount paid to the defendants. In the case at bar the defendants had placed the plaintiffs in a most embarrassing position through their failure to pay for the materials and labor furnished them in the construction of the house which they had contracted to build and had left the plaintiffs to get out of their difficulty as best they could. Under these conditions the plaintiffs must either discharge such claims for material and labor as might be the subject of liens, or suffer all the losses and disadvantages of delay, together with the additional burden of further expenses which would be incurred in perfecting the liens, for all of which the defendants might be financially irresponsible. We think that in this situation the plaintiffs might pay such claims as would be collectible through lien proceedings, and charge the same to the defendants. The plaintiffs, however, in settling such claims must limit each payment to the amount justly and fairly due the claimant. They cannot charge to the defendants anything more than the defendants were legally obligated to pay themselves. In order for the plaintiffs to recover for such payments, it is incumbent upon them to establish the justness of the claims."
Complaint appears to be made that no satisfactory allowance was given by the trial court to Lasich for his services on the trips Lasich and his wife took with Mr. and Mrs. Wimpenney to St. Paul, Minnesota, and to Casper, Wyoming; but we think the district court disposed of that matter very justly. These people were absent approximately a week from Riverton on the St. Paul trip. The trip to Casper and return was made in one day. All the expenses (including hotel bills, meals, furnishing transportation by car and fuel, of Lasich and wife as well as those of Wimpenney and wife) were paid by Wimpenney. The trips were obviously taken merely as pleasure and vacation trips. Yet, we find Lasich in his second cause of action claiming that he should be awarded $2,000 for these services. Really, *367 as it seems to us, the trial court awarded a most generous amount for the two men's work for two or three days in moving and uncrating the furniture purchased. Mrs. Wimpenney, a married woman with some forty-seven years' experience in purchasing household furniture, said she selected the furniture and house furnishings. She would hardly have relied on having a contractor with no experience except as a garage man to select furniture to be used in her new house. She made a list of furniture needed and where it was to be placed in the home. Lasich testified he had never been employed for a fee to do work of this character. We deem the point suggested as without merit.
Other points are urged on this appeal; but we have, we think, disposed of the main contentions of the appellant. And the record here is so confused in many places that when the rules of appellate procedure in regard to what this Court should consider are invoked (especially bearing in mind the trial court's action on conflicting testimony and the testimony in evidence on behalf of the respondent which is to be deemed controlling) there is no need to say more on the contentions advanced on this appeal.
CASE NO. 2638
Since this appeal is grounded upon the same record as number 2634, it will be unnecessary to restate the facts. We will, however, set out the specifications of error. Of these there are only four, and they read as follows:
"1. That the court erred in its findings of facts and conclusions of law in assessing and charging against the defendant the sum of $114.24 for sealing of garage. Record on Appeal, Paragraph 6, pages 261-262.
"2. That the court erred in assessing and charging the defendant the sum of $140.00 for four garage doors. Paragraph 7 of the record on appeal, page 262.
*368 "3. That the court erred in allowing the sum of $16.11 made by the defendant to Jewett Machine Shop, whereas the amount to which the defendant is entitled to credit and which amount was paid by him is the sum of $63.11. Paragraph 9, page 263, Record on Appeal.
"4. That the court erred in disallowing the claim of the defendant against the plaintiff amounting to $492.80, paid to one Don Loebe for painting in accordance with the terms of the contract between the plaintiff and defendant as set out and shown at page 263, Record on Appeal, paragraph 11."
In considering these assignments, we, of course, must employ the same rules of appellate procedure quoted above in our disposition of Case Number 2634; and it will not be necessary to repeat them in the disposition of this appeal.
With regard to specification number one, it is only necessary to refer to the written contract to reach the conclusion that this assignment of error is not well founded. It will be recalled that near the close of the written contract we find these indorsements:
"ALLOWANCES FROM ORIGINAL CONTRACT
PRICE
"For garage not being sealed as originally planned will be $114.24.
"NOTE In the event that the owner decides to have the garage sealed as discussed with the contractor it will be done at $114.24 the amount allowed above for the non-sealing."
These statements appear just above the signatures of Lasich and Wimpenney to the written building contract. It is evident the court below was warranted in doing what it did do and that its action was in accord with the understanding of the parties.
*369 With reference to the charge of $140 for four garage doors, the record shows that Wimpenney had Lasich put up those doors and they met with Wimpenney's approval. We see no reason why Wimpenney should not pay for them, especially as no labor charge was made for installing the doors.
The amount due the Jewett Machine Shop was obviously a mistake on the part of the court as the amount referred to in the evidence in the record, and which Wimpenney paid, was $63.11 instead of $16.11. This error is very likely merely a typographical error.
Concerning the fourth and last assignment, it appears that the specifications relative to materials and exterior painting (which Lasich himself signed and which were attached to the contract hereinabove set forth) read "exterior painting, number of coats, 3; material, paint; manufacturer and brand, Sherman (sic) Williams." In order to complete the work which Lasich should have done, it is evident that three coats of paint should have been put on the house. As Lasich put on only one coat, it is apparent that Wimpenney employed a painter to do what Lasich should have looked after himself. This was the only course left open to Wimpenney as at the time the painting was done Lasich and his workmen had left the job and were no longer engaged in undertaking to complete the house. For that reason, Wimpenney, as we think should have received credit for the $492.80 which he paid to Don Loebe for this job of painting.
With these modifications as above noted, we reach the conclusion that the judgment of the District Court of Fremont should be affirmed. We are the more ready to reach this conclusion when we bear in mind the statement in appellant's brief in Case Number 2634 to the effect that "... in view of time which has elapsed *370 and procedure which has taken place, in the interest of basic and substantial justice, retrial should be avoided if the rights of both parties can be adequately preserved." And we are obliged to say that the Judge of the District Court who had to study and express his conclusions concerning this very elaborate and involved record did very well in determining the rights of the parties, and all things considered we agree with counsel for the appellant in Case Number 2634 that the rights of the parties should be and have been very well preserved.
Modified and affirmed.
BLUME, J., AND HARNSBERGER, J., concur.
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897 So.2d 437 (2004)
James Edmond McWILLIAMS
v.
STATE of Alabama.
CR-01-0235.
Court of Criminal Appeals of Alabama.
April 30, 2004.
Rehearing Denied June 11, 2004.
Certiorari Denied September 24, 2004.
*440 Richard S. Jaffe and Stephen A. Strickland, Birmingham, for appellant.
Troy King and William H. Pryor, Jr., attys. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.
Alabama Supreme Court 1031428.
BASCHAB, Judge.
On August 27, 1986, the appellant, James Edmond McWillliams, was convicted of two counts of capital murder because he committed the murder during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975, and one count of capital murder because he committed the murder during the course of a rape, see § 13A-5-40(a)(3), Ala.Code 1975. On August 28, 1986, by a vote of 10-2, the jury recommended that he be sentenced to death. On October 9, 1986, the trial court accepted the jury's recommendation and sentenced him to death. We affirmed his convictions on direct appeal, see McWilliams v. State, 640 So.2d 982 (Ala.Crim.App.1991); the Alabama Supreme Court affirmed his convictions, see Ex parte McWilliams, 640 So.2d 1015 (Ala.1993), and his sentence, see Ex parte McWilliams, 666 So.2d 90 (Ala.1995); and the United States Supreme Court denied his petition for certiorari review, see McWilliams v. Alabama, 516 U.S. 1053, 116 S.Ct. 723, 133 L.Ed.2d 675 (1996). The relevant facts of the case are set forth in this court's opinion on direct appeal. This court issued a certificate of judgment on August 8, 1995.
On April 2, 1997, the appellant filed a Rule 32 petition, challenging his convictions. After several attorneys were appointed and allowed to withdraw, the appellant filed an amended Rule 32 petition on September 29, 1999. He filed a second amended petition on June 8, 2000, and a revised second amended petition on June 12, 2000. The circuit court conducted an evidentiary hearing on June 12-15, 2000. On August 8, 2000, the appellant moved to amend his Rule 32 petition, to examine additional witnesses, and to have a one day evidentiary hearing so he could call those witnesses. After the State objected, the circuit court denied the appellant's motion. In March 2001, the appellant again moved to amend the Rule 32 petition and to conduct additional discovery. The circuit court denied that motion. In September 2001, the circuit court issued a 43-page order denying the appellant's petition. This appeal followed.
The appellant raises several arguments, including claims that his attorneys rendered ineffective assistance during various proceedings. In reviewing the circuit court's rulings on the appellant's arguments, we apply the following principles:
"`"[T]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence." Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992).' Cade v. State, 629 So.2d 38, 41 (Ala.Crim.App.1993), cert. denied, [511] U.S. [1046], 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).
"In addition, `[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.' State v. Tarver, 629 So.2d 14, 19 (Ala.Crim.App.1993)."
Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995).
*441 "To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
"`The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances.... "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.'
"Duren v. State, 590 So.2d 360, 362 (Ala.Cr.App.1990), aff'd, 590 So.2d 369 (Ala.1991), cert. denied, [503] U.S. [974], 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).
"When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.
"`Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.'
"Strickland, 466 U.S. at 689, 104 S.Ct. at 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).
"Initially we must determine whether counsel's performance was deficient. We must evaluate whether the action or inaction of counsel of which the petitioner complains was a strategic choice. `Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable....' Lawley, 512 So.2d at 1372. This court must avoid using `hindsight' to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991)."
Hallford v. State, 629 So.2d 6, 8-9 (Ala.Crim.App.1992).
"In determining whether a defendant has established his burden of showing that his counsel was ineffective, we are not required to address both considerations of the Strickland v. Washington test if the defendant makes an insufficient showing on one of the prongs. Id. at 697, 104 S.Ct. at 2069. In fact, the Court explained that `[i]f it is easier to dispose of an ineffectiveness claim on *442 the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' Id. We defer to this guidance and address the `prejudice' prong, for `[w]ith respect to the prejudice component, the lack of merit of [Thomas's] claim is even more stark.' Id. at 699, 104 S.Ct. at 2070."
Thomas v. State, 511 So.2d 248, 255 (Ala.Crim.App.1987) (footnote omitted).
"Furthermore, to render effective assistance, an attorney is not required to raise every conceivable constitutional claim available at trial and on appeal. Holladay v. State, 629 So.2d 673 (Ala.Cr.App.1992), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994); McCoy v. Lynaugh, 874 F.2d 954, 965-66 (5th Cir.1989). Rather, counsel must be given some discretion in determining which claims possibly have merit, and thus a better chance of success, and which claims do not have merit, and thus have little chance of success. Heath v. State, 536 So.2d 142 (Ala.Cr.App.1988); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)."
Davis v. State, 720 So.2d 1006, 1014 (Ala.Crim.App.1998).
I.
First, the appellant argues that the circuit court improperly adopted verbatim the State's proposed orders.
"`While the practice of adopting the State's proposed findings of fact and conclusions of law is subject to criticism, the general rule is that even when the court adopts proposed findings and conclusions verbatim, the findings are those of the court and may be reversed only if clearly erroneous. Anderson v. City of Bessemer, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Hubbard v. State, 584 So.2d 895 (Ala.Cr.App.1991); Weeks v. State, 568 So.2d 864 (Ala.Cr.App.1989), cert. denied, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990); Morrison v. State, 551 So.2d 435 (Ala.Cr.App.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990).'
"Wright v. State, 593 So.2d 111, 117-18 (Ala.Cr.App.1991), cert. denied, [506] U.S. [844], 113 S.Ct. 132, 121 L.Ed.2d 86 (1992)."
Holladay v. State, 629 So.2d 673, 687-88 (Ala.Crim.App.1992). The record does not indicate that the circuit court's findings are clearly erroneous. In fact, it supports those findings.[1] Therefore, the appellant's argument is without merit.
II.
Second, the appellant argues that the circuit court improperly denied his motions to amend his petition and the discovery agreements. A review of the procedural history of the proceedings in the circuit court is essential to evaluate this claim. The appellant filed his Rule 32 petition on April 2, 1997, and the circuit court appointed counsel to represent him. After two attorneys had been appointed and granted leave to withdraw because of their lack of experience in death penalty cases, the circuit court appointed John W. Stahl. In August 1998, Stahl filed a motion to withdraw, citing the appellant's remarks to him that "he was going to be filing something himself asking that counsel be removed from the case and that he did not wish [Stahl] to represent him." (C.R. 113.) In *443 September 1998, the circuit court appointed Andrew A. Smith, and the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison appeared pro bono. New York attorneys Lauren Panora, Holly D. Jarmul, and Julia Tarver applied for pro hac vice admission to the Alabama State Bar. In April 1998, Smith filed a motion to withdraw, stating that he had a conflict in continuing to represent the appellant. In April 1999, the circuit court issued a scheduling order that provided that all discovery and amendments to the petition were to completed by November 15, 2000. The circuit court noted that all parties had agreed to this time table. In July 1999, Paula W. Watkins filed a notice of appearance as local counsel to assist the pro hac vice admittees. On September 29, 1999, the appellant filed an amended Rule 32 petition. On April 24, 2000, the circuit court issued an order dismissing 18 of the claims because they were procedurally barred. (C.R. 604-07.) In April 2000, the appellant moved to have his attorneys removed from the case because he was not satisfied with their representation and because they allegedly did not raise issues he wanted them to pursue. On June 8, 2000, he filed a second amended petition. On June 12, 2000, he filed a revised second amended petition, and the evidentiary hearing began.
On August 8, 2000, two months after the evidentiary hearing, the appellant moved to amend his Rule 32 petition, to examine six additional witnesses, and to hold another evidentiary hearing. The State objected, and the circuit court denied the motion on August 15, 2000. In September 2000, the appellant filed a pro se motion to nullify the proceedings in the circuit court on the ground that his attorneys were not licensed to practice law in Alabama. He also made other claims related to their performance, with which he was dissatisfied. In October 2000, attorneys Watkins, Panora, and Jarmul moved to withdraw, citing the comments the appellant had made in the motion to nullify and the disagreements they had had in their dealings with the appellant. In denying the motion to withdraw, the circuit court stated: "The Court takes notice of the fact that McWilliams has repeatedly attempted to manipulate these proceedings to affect delay in this matter. It is the opinion of the Court that this is simply another ploy to delay these proceedings." (C.R. 994.)
In January 2001, Stephen A. Strickland filed a notice of appearance. In February 2001, the circuit court allowed the appellant's New York attorneys to withdraw. In March 2001, the appellant moved to conduct additional discovery and to amend his Rule 32 petition. The circuit court denied that motion. Subsequently, in September 2001, the circuit court denied the Rule 32 petition.
The appellant argues that the circuit court erred in denying his motions to amend because Rule 32 proceedings are civil actions and therefore the liberal rules of amendment should be applied; because his attorneys in the Rule 32 proceedings rendered ineffective assistance;[2] because two of his attorneys never satisfied the requirements for pro hac vice admission to the Alabama State Bar; and because the State engaged in Brady violations.[3] He further argues that the State should be prohibited from arguing that he could not amend his Rule 32 petition because the State has "unclean hands."
Although Rule 32 petitions have been characterized as civil in nature, they are *444 governed by the Alabama Rules of Criminal Procedure. In this regard, Rule 32.4, Ala. R.Crim. P., provides, in part: "Proceedings under this rule shall be governed by the Rules of Criminal Procedure, except that the trial court in its sole discretion may allow the taking of depositions for discovery or for use at trial." Further, Rule 32.7(b), Ala. R.Crim. P., specifically addresses amending Rule 32 petitions and provides: "Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment." (Emphasis added.)
The appellant filed his original timely Rule 32 petition on April 2, 1997. He filed an amended petition, which the circuit court accepted, on September 29, 1999. The circuit court struck the second amended petition that he filed on June 8, 2000, four days before the scheduled evidentiary hearing, and the revised second amended petition that he filed on the day the evidentiary hearing began. On August 8, 2000, the appellant filed a motion to amend his petition, to call six additional witnesses, and to have a one day evidentiary hearing. The circuit court denied that motion. Nine months after the evidentiary hearing, the appellant filed another motion requesting leave to amend his petition and to obtain further discovery. The circuit court also denied that motion.
The facts of this case are similar to those presented to this court in Neelley v. State, 642 So.2d 494 (Ala.Crim.App.1993), and Cochran v. State, 548 So.2d 1062 (Ala.Crim.App.1989). In Neelley, the petitioner attempted to amend her Rule 32 petition after the evidentiary hearing had been held and after she had already filed one amended petition. In upholding the circuit court's denial of the motion to amend, this court stated:
"The appellant argues that the trial court abused its discretion in denying her second motion to amend her petition. In that amendment to her petition, the appellant alleged racial discrimination in the selection of jurors, an improper jury instruction on reasonable doubt, and the unconstitutionality of the Alabama statute concerning compensation of attorneys in capital cases, § 15-12-21, Code of Alabama. These latter two issues are addressed by the appellant on this appeal. The trial court denied the appellant's motion to amend on the grounds that the amendment `comes after the evidentiary hearing was completed in the case and is not based upon surprise, newly discovered evidence or changed circumstances.'
"`Rule 20.7(b) of the Alabama Temporary Rules of Criminal Procedure [now Rule 32.7(b), Alabama Rules of Criminal Procedure] reads as follows: "Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment." (Emphasis added [in Cochran].) The clear import of the language used in Rule 20.7(b) [Rule 32.7(b)] is that a petitioner does not have an absolute right to amend his petition prior to the entry of judgment.
"`"Amendments are to be freely allowed when justice requires." Ex parte Tidmore, 418 So.2d 866, 868 (Ala.1982). "[A]mendments should be freely allowed and ... trial judges must be given discretion to allow or refuse amendments.... The trial judge should allow a proposed amendment if it is necessary for a full determination on the merits and if it does not unduly prejudice the opposing party or unduly delay the trial." Record Data International, Inc. v. Nichols, 381 So.2d 1, 5 (Ala.1979) (citations omitted). "The grant or denial of leave to amend is a matter within the *445 sound discretion of the trial judge and is subject to reversal on appeal only for an abuse of that discretion. Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App.1977). The trial court acts within its discretion so long as its disallowance of an amendment of pleadings is based upon some valid ground, such as an actual prejudice or undue delay. Poston v. Gaddis, 372 So.2d 1099 (Ala.1979)." Ex parte Reynolds, 436 So.2d 873, 874 (Ala.1983). Although the cases cited in this paragraph deal with the interpretation of Rule 15, A.R.C.P. [Temp.], the principles expressed have equal application here.'
"Cochran v. State, 548 So.2d 1062, 1075 (Ala.Cr.App.1989). In Cochran, defendant attempted to amend his petition eight months after it had originally been filed, after the evidentiary hearing had begun, after the circuit court had ruled on a related ground asserted in his petition, and after having previously filed a motion to amend. This court held:
"`Cochran cannot claim that his proposed amendment was based on surprise, newly discovered evidence, or changed circumstances. "Courts may properly refuse permission to amend ... where there is no showing of diligence or that the facts were unknown to the applicant prior to his application." 61 Am.Jur.2d, § 312 at 301 (1981). See also Robinson v. Kierce, 513 So.2d 1005, 1006-07 (Ala.1987); National Distillers and Chemical Corp. v. American Laubscher Corp., 338 So.2d 1269, 1273-75 (Ala.1976).'
"Id. See also Whitehead v. State, 593 So.2d 126 (Ala.Cr.App.1991). In this case, where the appellant failed to file the motion for leave to amend until seven months after the evidentiary hearing had been held and because the claims asserted in that amendment were not based on surprise, newly discovered evidence, or changed circumstance, we find no abuse of discretion by the trial court. The appellant attempts to raise in her brief to this court the same claims that were included in the second amendment; these claims are procedurally barred. Rules 20.2(a)(3), 20.2(a)(5), 20.2(b), A.R. Cr. P. Temp."
642 So.2d at 496-97.
First, the circuit court struck the second amended petition and the revised second amended petition because the appellant filed them on the eve of or on the first day of the evidentiary hearing and because it would have unduly prejudiced the State in defending against the allegations. In this regard, the circuit court stated:
"Petitioner's Second Amended Petition and Revised Amended Petition were filed in violation of this Court's express scheduling order. (EH at 17-18) Moreover, Petitioner used this filing to add two new issues on the eve of the hearing that he was well aware of in time to have properly raised them before the Court. (EH at 20-21, 27; Issues V and VI of the trial brief) Petitioner has made no pretense that these issues were in any way the result of newly discovered evidence and, by deliberately delaying setting them forth until the eve of the hearing, Petitioner greatly prejudiced the Respondent's ability to adequately refute these claims.
"As the Court of Criminal Appeals has recently reaffirmed, Rule 32.7(d) does not grant an absolute right to amend a petition at any time. Siebert v. State, [778 So.2d 842 (Ala.Crim.App.1999)]. `The granting or denial of a motion to amend a Rule 32 petition is within the sound discretion of the trial court, whose ruling on such a motion will be reversed only for an abuse of discretion. Neelley *446 v. State, 642 So.2d [4]94, 497 (Ala.Cr.App.1993).' Siebert v. State, [778 So.2d at 848].
"Because Petitioner deliberately violated this Court's scheduling order to his own benefit, and to the detriment of the Respondent, Petitioner's untimely petition is, hereby, rejected by this Court. Based on the foregoing, this Court GRANTS Respondent's Motion to Strike Petitioner's Revised Second Amended Petition."
(C.R. 1754-55) (footnote omitted).
A review of the second amended petition and the revised second amended petition shows that the appellant raised two claims that he did not raise in the original petition or the first amended petition. The second amended petition added a juror misconduct claim. The revised second amended petition added a claim entitled "Destruction of Evidence." (C.R. 826.) The appellant's entire argument on this destruction of evidence claim consisted of the following: "Upon information and belief, the State and/or its agents, in bad faith, and/or recklessly, and with conscious disregard of petitioner's rights, lost or destroyed critical evidence, including the physical evidence from the crime. Scientific testing of this evidence would have exonerated the petitioner." (C.R. 826.) The appellant did not raise either of these claims in the timely filed Rule 32 petition. Further, neither claim related back to any claim he raised in the timely Rule 32 petition. Therefore, both of these claims were barred by the limitations period set forth in Rule 32.2(c), Ala. R.Crim. P. See Charest v. State, 854 So.2d 1102 (Ala.Crim.App.2002). The appellant filed both his second amended petition and his revised second amended petition in violation of the circuit court's express scheduling order; he filed both too near the scheduled evidentiary hearing; and both raised issues that were time-barred. Accordingly, the circuit court did not abuse its discretion in refusing to entertain the appellant's second amended petition and his revised second amended petition.
The circuit court also properly refused to allow the appellant to amend his petition in August 2000 two months after the evidentiary hearing. In its objection to this amendment, the State asserted:
"[The appellant] has made no representation that these six additional witnesses were unavailable at the time of the hearing or that he ever intended to call them as witnesses. In fact, Dr. John McDuffie was slated to testify on behalf of the State and was present in the court room during the third day of testimony. William Landrum was also present and was actually barred from the court room at McWilliams's request. Charles Freeman was on the State's witness list and McWilliams knew that he was available to testify on the fourth day of the hearing. Moreover, Lieutenant McFerrin assisted in providing security for this Rule 32 proceeding and was, therefore, certainly available for questioning. There is simply no reason why McWilliams could not have called the six witnesses during the week set aside for his evidentiary hearing."
(C.R. 897.) Further, the appellant did not raise his Brady claim in his timely Rule 32 petition. Rather, he first raised it when he filed an amended petition in September 1999, approximately two years after the expiration of the limitations period set forth in Rule 32.2(c), Ala. R.Crim. P. A Brady claim is subject to the procedural default grounds set forth in Rule 32, Ala. R.Crim. P.[4]See Williams v. State, 782 *447 So.2d 811 (Ala.Crim.App.2000). Therefore, even if the circuit court had granted leave to amend two months after the evidentiary hearing had been held, the appellant would be barred from litigating this claim because it was time-barred and it did not relate back to any claim contained in his timely petition. See Charest, supra.
Finally, the circuit court did not abuse its discretion in denying the motion to amend that the appellant's new attorneys filed nine months after the evidentiary hearing. When ruling on this motion, the circuit court stated:
"Petitioner filed a request to amend his Rule 32 petition and for this Court to grant his `motion for reconsideration of Petitioner's pro se motion to amend petition for relief and examination of additional witnesses.' As this Court correctly noted at the hearing, to grant such requests would be to violate this Court's express scheduling order. (EH at 17-18) This matter has been thoroughly litigated and now Petitioner seeks to add more issues after the close of the evidence. Petitioner has failed to specify what additional issues he wishes to raise and has made no pretense that these issues were in any way the result of newly discovered evidence. By deliberately failing to set forth these new claims and delaying mention of them until after the hearing, Petitioner's request serves only to further delay these proceedings.
"....
"... Petitioner states his primary claim as follows: `Based upon the State's pattern and conduct, it is entirely conceivable that the State in bad faith had this evidence intentionally destroyed.' (Petitioner's Motion at 5) `It is ludicrous for the physical evidence to be destroyed when anyone with a functioning brain would know that [sic] person on death row is going to challenge his conviction and sentence.' (Id.) Petitioner then concludes that, `Beyond a reasonable doubt (and the burden is only by a preponderance), the evidence is overwhelming that the State engaged in a pattern and practice of Brady violations, prosecutorial misconduct during his trial, at least one witness that committed perjury, and the evidence from this case has been thrown away, presumably at the request of the State. Therefore, the State has violated every equity principle known to our legal system.' (Id. at 15)
"It is based on these allegations that the Petitioner asks this Court to grant his requests as sanctions against the State for its alleged misconduct. (Id. at 15-16) Petitioner offers no evidence in support of these assertions of misconduct. Petitioner has known for some time that the physical evidence in this case is missing and, during the evidentiary hearing, was given every opportunity to offer evidence as to what happened to it and failed to do so. The Court takes notice of the fact that there is no indication that the State effected the destruction of this evidence, nor is there any evidence to support Petitioner's other generalized assertions of error.
"Because Petitioner has failed to offer any credible evidence to support his requests for permission from this Court to amend his petition, the Court hereby DENIES Petitioner's Motion to Amend and For Reconsideration."
*448 (C.R. 1674-76.) The circuit court did not abuse its discretion in denying the motion to amend that the appellant's new attorneys made nine months after the evidentiary hearing and after the close of the evidence. See Neelley, supra; Cochran, supra.
The appellant also argues, as part of this issue, that his New York attorneys were never admitted to practice law in Alabama. The record shows that attorney Panora was admitted pro hac vice to the Alabama State Bar in late 1998. However, it appears that there was some problem with Jarmul's application. The record shows that Jarmul submitted a pro hac vice application pursuant to Rule VII, Rules Governing Admission to the Alabama State Bar, on December 21, 1998, and that application was returned to her. This new application is stamped resubmitted to the circuit court on January 11, 1999. This application appears to fully comply with Rule VII. Attorney Julia Tarver is not referenced in any pleading until May 2000, when her name appears at the bottom of a pleading with a notation that she had applied for pro hac vice admission to the Alabama State Bar. The record also shows that only one attorney attorney Panora signed all of the pleadings in this case. In fact, her name is the only name that appears on the majority of the pleadings. Panora's application for pro hac vice admission was approved in the early stages of the proceedings before any pleadings were filed. With regard to this contention, the circuit court stated:
"1. Based on the correct representations of said counsel that their applications to proceed pro hac vice had been submitted to the Bar prior to the hearing date, this Court ordered that Julia Tarver and Holly Jarmul be admitted.
"2. This order was entered prior to the beginning of the Rule 32 evidentiary hearing in this case and, therefore, Julia Tarver and Holly Jarmul were both admitted pro hac vice so that their participation in the evidentiary hearing was proper.
"3. This Court knows of no evidence of misconduct on the part of McWilliams's attorneys and takes notice of their more than competent representation during the Rule 32 proceedings. Both attorneys exhibited a more than adequate knowledge of Alabama law and represented McWilliams to the best of their abilities."
(C.R. 983-84.) The circuit court correctly resolved this issue.
Finally, the appellant argues that the State should be estopped from arguing that he could not amend his petition because it has "unclean hands." He bases this argument on a contention that the State committed numerous Brady violations. As the Alabama Supreme Court noted in Friendly Credit Union v. Campbell, 579 So.2d 1288, 1291 (Ala.1991), "[t]his defense is sometimes applied in an equitable proceeding to deny relief to a plaintiff who has himself acted improperly, i.e., with `unclean hands,' in regard to the very transaction as to which he is seeking the aid of equity, the conscience of the court." We are not aware of any Alabama case that applies this equitable principle to Rule 32 proceedings. Therefore, the appellant's argument is without merit.
Under the facts presented in this case, the circuit court did not abuse its discretion in denying the appellant's motions to amend his petition. It is evident that the appellant caused the majority of the delays in this case. If we were to hold that the circuit court abused its discretion in denying the motions to amend, we would reward the appellant for his repeated and intentional efforts to delay and disrupt the circuit court proceedings. We would also *449 allow an attorney, who is appointed to a case at the final stages of a circuit court proceeding, to relitigate a case from start to finish. There is a point at which disputed issues are fully litigated and the circuit court can with some degree of confidence issue a final ruling on a Rule 32 petition. See Rhone v. State, [Ms. CR-02-0493, January 30, 2004] ___ So.2d ___ (Ala.Crim.App.2004). Here, the circuit court allowed the appellant to amend the Rule 32 petition, the State filed its answer to that amendment, and the court issued a ruling partially dismissing 18 claims as procedurally barred. Based on the facts presented in this case, we conclude that the circuit court did not abuse its discretion in denying the appellant's subsequent motions to amend his Rule 32 petition.
III.
Third, the appellant argues that the circuit court erred in dismissing several of his claims on the grounds that he did not sufficiently plead them. Specifically, he contends that the circuit court's ruling violates Rule 32.7(d), Ala. R.Crim. P., which provides that, if the court determines that the petition is not sufficient, it may allow the petition to be amended. In effect, he asserts that a circuit court should never bar a claim as insufficiently pled and should always allow a petitioner to amend his petition. He cites the commentary to Rules 8, 9, and 78, Ala. R. Civ. P., in support of his contention.[5] However, he does not cite any specific issue that he believes the circuit court erroneously dismissed as insufficiently pled. Instead, he simply makes broad, bare assertions.
As we previously stated, Rule 32 petitions are governed by the Alabama Rules of Criminal Procedure rather than by the Alabama Rules of Civil Procedure. See Rule 32.4, Ala. R.Crim. P. If we were to agree with the appellant's argument, we would be disregarding the plain language of Rule 32.7(d), Ala. R.Crim. P., which provides, in part:
"If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition."
(Emphasis added.) Accordingly, the appellant's argument is without merit.
IV.
Fourth, the appellant argues that the circuit court erred in holding that the following claims were procedurally barred:
1. The trial court erred because it did not adequately advise him of the dangers involved in assisting his counsel in his defense;
2. The trial court erred in not suppressing his lineup identification;
3. The prosecutor engaged in repeated and highly prejudicial misconduct throughout the trial; and
4. His trial attorneys rendered ineffective assistance due to allegedly inadequate compensation.
The circuit court found that Claims 2 and 3 were procedurally barred because they were raised or addressed at trial and were addressed on direct appeal. See Rule 32.2(a)(2) and (4), Ala. R.Crim. P. It also *450 found that all four claims were procedurally barred because the appellant could have raised them on appeal. See Rule 32.2(a)(5), Ala. R.Crim. P.
Claim 1 was procedurally barred because the appellant could have raised it at trial and on direct appeal. See Rule 32.2(a)(3) and (5), Ala. R.Crim. P. Moreover, the record from the direct appeal in this case shows that the appellant filed a motion to allow him to participate in the case. (A.C.R. 1514.) There was a discussion about this motion on the record, and it is clear that the circuit court advised the appellant against participating in his case. (A.R. 299-300.) Therefore, the appellant's argument is without merit.
The circuit court correctly found that Claims 2 and 3 were procedurally barred because the appellant raised them and we addressed them on direct appeal. See Rule 32.2(a)(4), Ala. R.Crim. P. Nevertheless, the appellant argues that we should reconsider his claims because "this brief has new evidence that this Court should consider under the `law of the case' doctrine." (Appellant's brief at p. 105.)[6] However, Rule 32.2(a)(4), Ala. R.Crim. P., specifically provides that, when an issue has been addressed on direct appeal, it cannot be relitigated in a Rule 32 proceeding. Therefore, the appellant's argument is without merit.
The circuit court erroneously held that Claim 4 relating to ineffective assistance of counsel was procedurally barred in this Rule 32 proceeding. However, this court may affirm a circuit court's denial of a petition if it is correct for any reason. See Reed v. State, 748 So.2d 231 (Ala.Crim.App.1999). With regard to this contention, the circuit court found:
"The only testimony elicited at the hearing on this issue demonstrated that trial counsel did not allow the compensation limits to prevent them from working on the case and that they did not neglect this case because of those limits. (EH at 100-101, 146, 210, 213, 282) Thus, there is no evidence in support of Petitioner's claim."
(C.R. 1820-21.) The record supports the circuit court's findings, and we adopt them as part of this opinion. Therefore, the appellant is not entitled to relief on this ground.
V.
Fifth, the appellant argues that his Rule 32 attorneys rendered ineffective assistance. He recognizes that we have held that, because there is not a right to counsel in a collateral proceeding, there cannot be a claim that counsel rendered ineffective assistance. However, he argues that, because Alabama has chosen to provide a postconviction remedy, it must ensure that that remedy complies with due process requirements. The Northern District of Ohio addressed a similar argument as follows:
"[Petitioner] asserts that because the Ohio post-conviction statutes create a due process property interest in his right to counsel during post-conviction proceedings, he has a concomitant right to constitutionally effective assistance of counsel during his collateral attack. While petitioner acknowledges that he has no constitutional right to post-conviction counsel, he asserts that, pursuant to Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), `when a State opts to act in a field where its action has significant discretionary elements, *451 it must nonetheless act in accord with the dictates of the Constitution and, in particular, in accord with the Due Process Clause.' Consequently, petitioner asserts, post-conviction counsel's failure to attach documents in support of his ineffective assistance claims unconstitutionally divested him of this property interest.
"The United States Supreme Court disagrees. In Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), the Court held that a post-conviction petitioner has no right to counsel. Noting that the source of the right to post-conviction counsel was created pursuant to Pennsylvania statute, the Court reasoned that it is the source of the right to counsel, combined with the type of proceeding, that implicates a constitutional right to counsel, and, thus, whether there can be a due process violation. Explicitly rejecting the argument the petitioner makes here, the Finley Court held Evitts inapplicable to state habeas proceedings because `the substantive holding of Evitts that the State may not cut off a right to appeal because of a lawyer's ineffectiveness depends on a constitutional right that does not exist in state habeas proceedings.' Id. at 558, 107 S.Ct. 1990."
Taylor v. Mitchell, 296 F.Supp.2d 784, 802-03 (N.D.Ohio 2003). Also, this court has stated:
"It is clear under Alabama law that there is no requirement that indigent petitioners be furnished counsel regarding post-conviction proceedings. Ex parte Cox, 451 So.2d 235, 237 (Ala.1983). Because a state prisoner `ha[s] no constitutional right to coram nobis [now Rule 32] counsel, see Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987), he cannot excuse a procedural default based upon ineffective assistance rendered by that counsel. See [Wainwright v.] Torna, 455 U.S. [586,] 587-88, 102 S.Ct. [1300,] 1301-02, [71 L.Ed.2d 475 (1982)].' Toles v. Jones, 888 F.2d 95, 99-100 (11th Cir.1989)."
Mayes v. State, 563 So.2d 38, 39 (Ala.Crim.App.1990). Therefore, the appellant's argument is without merit.
VI.
Sixth, the appellant argues that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, he raised only one of the claims he presents in his brief i.e., that there was evidence that two inmates who testified against him had a motive to lie, that their testimony was contradicted by evidence at the scene, and that the witnesses lied about receiving favorable treatment before the circuit court.[7] Moreover, he raised that claim in his amended petition, which he filed well outside of the limitations period set forth in Rule 32.2(c), Ala. R.Crim. P. The claim would be considered timely only if it related back to a claim in the original timely filed petition. See Charest, supra. However, it did not. Therefore, that claim is time-barred. See Rule 32.2(c), Ala. R.Crim. P. Accordingly, the appellant is not entitled to relief in this regard.
VII.
Finally, the appellant argues that his trial and appellate attorneys rendered ineffective assistance. In Chandler v. United States, 218 F.3d 1305 (11th Cir.2000), the United States Court of Appeals for the Eleventh Circuit stated:
*452 "The purpose of ineffectiveness review is not to grade counsel's performance. See Strickland, 104 S.Ct. at 2065; see also White v. Singletary, 972 F.2d 1218, 1221 (11th Cir.1992) (`We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.'). We recognize that `[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.' Strickland, 104 S.Ct. at 2067. Different lawyers have different gifts; this fact, as well as differing circumstances from case to case, means the range of what might be a reasonable approach at trial must be broad. To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.' Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987).
"....
"... Because the reasonableness of counsel's acts (including what investigations are reasonable) depends `critically' upon `information supplied by the [petitioner]' or `the [petitioner]'s own statements or actions,' evidence of a petitioner's statements and acts in dealing with counsel is highly relevant to ineffective assistance claims. Strickland, 104 S.Ct. at 2066. `[An] inquiry into counsel's conversations with the [petitioner] may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.' Id. (`[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.')."
Chandler, 218 F.3d at 1313-19 (footnotes omitted). Also, when ineffective-assistance-of-counsel claims involve the penalty phase of a capital murder trial, the focus is on "`whether "the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."' Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir.1992), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993), quoted in Daniels [v. State], 650 So.2d [544,] 568 [(Ala.Crim.App.1994)]." Jones v. State, 753 So.2d 1174, 1197 (Ala.Crim.App.1999). See also Williams v. State, 783 So.2d 108 (Ala.Crim.App.2000).
The appellant argues that neither the State nor the circuit court denied the fact that Rule 32 counsel was able to find additional mitigating evidence that his trial attorneys did not present. In his original brief, he does not state what additional mitigating evidence his attorneys did not present. In a supplemental brief, he presents a laundry list of evidence that he asserts his attorneys should have presented to the jury. The evidence related to his troubled childhood and his alleged bipolar disorder.
The only issue in the appellant's Rule 32 petition that is related to the presentation of evidence about his childhood is the claim that counsel did not investigate his background, conduct in depth interviews with his family members, or otherwise develop this type of evidence. With regard to this claim, the circuit court made the following findings:
"Petitioner contends that trial counsel failed to investigate his background, conduct in depth interviews with family members, or otherwise develop evidence relevant to an appropriate punishment. *453 As previously noted, trial counsel prepared this case in a reasonable and diligent manner and, based on the information gathered in their investigation, trial counsel reasonably determined to portray Petitioner as a man who had suffered from emotional problems most of his life that had gone untreated.... Petitioner now bases his contentions to the contrary upon the testimony of Jan Vogolsang, a social worker, and upon the allegation that trial counsel should have called Dr. Charles Herlihy to testify.
"As to Dr. Herlihy.... Petitioner has offered no additional argument in support of this claim and cites this Court to exhibit 35, an exhibit this Court admitted for a limited purpose. (Brief at 17-18; See Order On The Admission Of Exhibits Presented At The Rule 32 Evidentiary Hearing) This exhibit was admitted for the sole purpose of showing that the document was in [defense counsel's] file. Petitioner offered no evidence that anything in the exhibit is true. Petitioner was free to call Dr. Herlihy as a witness in support of his petition. Moreover, defense counsel specifically stated that it did not remember why Herlihy was not called. (EH at 251) When trial counsel has no memory of the reasoning behind a decision, it will be presumed that it acted properly. See Williams v. Head, 185 F.3d at 1236. Petitioner has offered nothing to rebut this presumption and has not even attempted to demonstrate that but for counsel's failure to call Herlihy as a witness, the outcome of the trial would have been different. In fact, Petitioner's counsel has, in this claim, argued that trial counsel was ineffective for failing to call a witness that they themselves failed to call. This claim is without merit.
"As to Jan Vogolsang, Petitioner's present counsel has failed to do exactly what it now contends trial counsel was ineffective for failing to do. Petitioner's counsel failed to call any of the `friends, relatives, neighbors, and even treating physicians' it alleges should have testified and, instead, offered the testimony of Jan Vogolsang, a social worker from South Carolina, as a `mitigation expert.' (Brief at 17) In short, rather than calling witnesses to testify where they can be subjected to cross-examination, Petitioner's counsel called a paid witness to tell what these witnesses allegedly would have said, had they been called, without attempting to offer proof that Vogolsang had even conducted these interviews, much less what these people actually said. In support of this one paragraph allegation of attorney misconduct, Petitioner provides only assertions and string cites."
(C.R. 1801-03.)
The record from the direct appeal shows that the appellant's mother testified during the penalty phase of the trial about the appellant's troubled childhood. (A.R. 1303-18.) The appellant also testified and echoed his mother's testimony about an accident that occurred when he was about 13 years of age in which his skull was fractured, the problems he experienced as a result of that accident, and the medication he took to control his headaches after the accident. In addition, he was allowed to read into evidence a psychological report that concluded that he had mental problems. Therefore, the record shows that the appellant's attorneys developed and presented evidence about his childhood during his trial. "Prejudicial ineffective assistance of counsel under Strickland cannot be established on the general claim that additional witnesses should have been called in mitigation. See Briley v. Bass, 750 F.2d 1238, 1248 (4th Cir.1984); see also Bassette v. Thompson, *454 915 F.2d 932, 941 (4th Cir.1990). Rather, the deciding factor is whether additional witnesses would have made any difference in the mitigation phase of the trial." Smith v. Anderson, 104 F.Supp.2d 773, 809 (S.D.Ohio 2000), aff'd, 348 F.3d 177 (6th Cir.2003). "There has never been a case where additional witnesses could not have been called." State v. Tarver, 629 So.2d 14, 21 (Ala.Crim.App.1993). Accordingly, the appellant has not satisfied his burden under Strickland as to this claim.
With regard to the appellant's claim that counsel rendered ineffective assistance by not presenting evidence about his mental disorder, the circuit court made the following findings:
"In support of his claim that trial counsel were ineffective in failing to call a mental health expert during the penalty phase, McWilliams presented the testimony of Dr. George Woods, a psychiatrist from California. (EH. 789) Dr. Woods diagnosed Mr. McWilliams as suffering from `bipolar disorder with symptoms of both mania, hypomania, and depression.' (EH. 872) Dr. Karl Kirkland, a forensic psychologist, testified as a rebuttal witness for the State. (EH. 927) He disagreed with Dr. Woods's diagnosis of bipolar disorder based in part on the fact that `that diagnosis has never appeared in all the records that are present, plus that [McWilliams] was never treated with a primary drug for bipolar disorder such as Depakote or Lithium.' (EH. 974) Dr. Kirkland testified that `a character disorder... is what explains more of his behavior than any other diagnostic category' and noted that this conclusion and diagnosis was consistent with the Taylor Hardin records. (EH. 964-65) For the following reasons, McWilliams's claim regarding counsel's failure to call a mental health expert is denied.
"....
"... McWilliams's claims based upon the testimony of Dr. Woods are without merit....
"`....
"The trial transcript reveals that on January 21, 1986, trial counsel filed a `Petition For Inquisition Upon Alleged Insane Prisoner.' (R. 1526) The request was granted by the trial court and McWilliams was sent to Taylor Hardin [Secure Medical Facility] to undergo a comprehensive mental evaluation. (R. 1528) During the evidentiary hearing, trial counsel testified that he requested the mental evaluation to address the issue of insanity, but also for the purpose of seeking mitigation in preparation for a possible penalty phase. (EH. 156-57) The trial record supports this testimony. The request for the evaluation itself is based upon the relevance of mental heath issues to the sentencing stage of a capital trial and the trial court's order specifically directed McWilliams to be evaluated `as to existence of mitigating circumstances.' (R. 1526, 1528) McWilliams remained at Taylor Hardin for an extended period of time. During his stay, he was continuously observed and was specifically evaluated by three psychiatrists. (R. 1544) The consensus opinion of the Lunacy Commission was that McWilliams did not suffer from a mental illness and two of the three psychiatrists specifically stated that they found no evidence of mitigation. (R. 1544-47)
"Trial counsel testified that, in addition to the request for a formal evaluation, he also obtained the help of a `local psychologist' to assist him in evaluating any mental health issues. (EH. 136-37) Specifically, trial counsel stated that Dr. Marianne Rosenzweig was recruited to help `with interpretation and understanding *455 of existing records' and in evaluating possible mitigation. (EH. 137) For example, counsel and Dr. Rosenzweig reviewed and discussed the Taylor Hardin records and determined that `there was nothing that we felt was going to be useful in mitigation.' (EH. 137) Counsel additionally made repeated attempts to make contact with a psychologist in Mobile (Dr. Rose) who had previously evaluated McWilliams. (EH. 133) They even subpoenaed Dr. Rhodes in an effort to obtain her presence during penalty phase, but she did not comply. (R. 1319) This Court finds that counsel made a reasonable decision not to enforce the subpoena that was not `outside the wide range of professionally competent assistance.' The record additionally establishes that counsel was successful in obtaining a neuropsychological assessment. (R. 1632) Specifically, the evaluation was conducted following the penalty phase, but prior to the final sentencing hearing. Dr. John Goff conducted the evaluation and his resulting report was admitted into evidence.
"Plainly, trial counsel considered, investigated and presented evidence relating to McWilliams's mental health. Both McWilliams and his mother testified at the penalty phase regarding the issue. (R. 1303, 1321) McWilliams was even allowed to read into evidence and subsequently admit into evidence a report prepared by Dr. Maurice K. Davis, a psychologist who had previously tested McWilliams. The fact that counsel's efforts did not result in a sentence less than death does not make their performance deficient."
(C.R. 1809-13.) The record supports the circuit court's findings, and we adopt them as part of this opinion.
The appellant also objects to the following comments from the introductory portion of the circuit court's order denying his petition:
"As a final introductory observation, this Court notes that, at the time of their representation of Petitioner, both [defense attorneys] were attorneys in private practice who were appointed to the case due to their status and responsibility as members of the Tuscaloosa County Bar. In these proceedings, Petitioner has been represented by members of the New York based law firm, Paul, Weiss, Rifkind, Wharton & Garrison. The firm is very large, having more than 100 partners alone and offices in Washington, D.C., Paris, France, Tokyo, Japan, Beijing, China, and Hong Kong. Moreover, Petitioner was represented at the Rule 32 hearing by three lawyers and had stand by local counsel.... Two other support personnel were additionally present on behalf of Petitioner."
(C.R. 1796.) We do not conclude that these comments, which were part of the introduction to the order and not the findings of the court, were objectionable.
The appellant further argues that his attorneys rendered ineffective assistance on direct appeal. His entire argument on this issue consists of the following: "James McWilliams' appellate counsel was ineffective to the extent that there were issues that they could have raised but he failed to raise on appeal." (Appellant's brief at p. 131.) In its order, the circuit court found that this issue merely consisted of "single sentence assertions" that did not satisfy the pleading requirements set forth in Rule 32.6(b), Ala. R.Crim. P. (C.R. 1822.) It also stated:
"In the alternative, this Court notes that at no time does Petitioner even suggest that he was prejudiced by these alleged instances of ineffective assistance of counsel. Moreover, Petitioner *456 bears the burden of proof in these proceedings and failed to offer any evidence, or additional argument, in support of these claims."
(C.R. 1823.) We agree with the circuit court's findings and adopt them as part of this opinion.
Finally, the appellant argues that the circuit court erred in striking attorney Kevin McNally's testimony. McNally was called as an expert to testify about what constituted ineffective performance of counsel. When it excluded his testimony, the circuit court stated:
"The Court, as the trier of fact in these proceedings, plainly does not need the assistance of McWilliams's expert to `understand the evidence' or `determine a fact in issue.' In fact, the Court is in a much better position than Mr. McNally to evaluate the legal issues presented by McWilliams's petition for relief. In addition to service on the bench, the Court has the benefit of the experience of having practiced law in Alabama for many years and was practicing law before, and at the time of, this trial. (EH at 436)
"Mr. McNally, on the other hand, is not a licensed attorney in Alabama and has never even represented a client in this State. (EH at 388) During voir dire, McNally repeatedly demonstrated his ignorance of Alabama law, but was offered as an expert both as to national and Alabama standards of practice."
(C.R. 1764.) We do not find that there was any error in the circuit court's ruling striking McNally's testimony. As the Supreme Court of New Mexico stated in Lytle v. Jordan, 130 N.M. 198, 211-12, 22 P.3d 666, 679-80 (2001):
"The issues of whether defense counsel performed below the level of a reasonably competent attorney and whether deficient performance affected the result of the trial `are mixed questions of law and fact,' Strickland, 466 U.S. at 698, 104 S.Ct. 2052, which `require[ ] the application of legal principles to the historical facts of this case.' Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The district court's determination of these questions represents `a conclusion of law rather than a finding of fact.' Id. at 341, 100 S.Ct. 1708....
"... We believe it is superfluous for expert witnesses to advise a court, whether it is the district court or an appellate court, about the proper application of existing law to the established historical facts and about the ultimate issue of trial counsel's effectiveness. See Provenzano v. Singletary, 148 F.3d 1327, 1331-32 (11th Cir.1998); Parkus v. State, 781 S.W.2d 545, 548 (Mo.1989) (en banc); State v. Thomas, 236 Neb. 553, 462 N.W.2d 862, 867 (1990); State v. Moore, 273 N.J.Super. 118, 641 A.2d 268, 272 (1994); Commonwealth v. Neal, 421 Pa.Super. 478, 618 A.2d 438, 439 n. 4 (1992)."
VIII.
After the United States Supreme Court released its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), extending its prior holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to capital defendants, we requested that the parties brief the applicability of that decision to the appellant's death sentence. In Ring, the United States Supreme Court held that "[c]apital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." 536 U.S. at 589, 122 S.Ct. at 2432. We have since held that the decision in Ring does not apply retroactively to cases pending on collateral review. For example, in *457 Boyd v. State, [Ms. CR-02-0037, September 26, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2003), we stated:
"[T]his court has held that Apprendi claims are not applied retroactively to postconviction proceedings. Sanders v. State, 815 So.2d 590, 592 (Ala.Crim.App.2001). Our retroactivity analysis of Apprendi applies equally to Ring. Accordingly, Ring claims are not applied retroactively to postconviction proceedings. Therefore, [the petitioner's] suggestion that Ring applies retroactively to his death sentence is without merit."
(Footnote omitted.)
Likewise, the appellant's death sentence does not violate Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in which the United States Supreme Court held that it was a violation of the Eighth Amendment to the United States Constitution to execute a mentally retarded individual. A review of the direct appeal record shows that the appellant had been married and is the father of two children. The presentence report contains the following comment: "School personnel at Blount High School remembered McWilliams as being capable (intellectually) but as having problems with respect to discipline." (Presentence report, p. 8.) The appellant held various jobs in the food industry, had been in the United States Army, and had worked on an oil ring outside of New Orleans. There is not any indication that the appellant falls within any definition of mental retardation. See Ex parte Perkins, 851 So.2d 453 (Ala.2002).
For the above-stated reasons, we affirm the circuit court's denial of the appellant's Rule 32 petition.
AFFIRMED.
McMILLAN, P.J., and SHAW and WISE, JJ., concur; COBB, J., concurs in the result.
NOTES
[1] We note that the circuit court did make certain modifications to the State's proposed final order denying the appellant's petition. The State's proposed order is 42 pages, and the circuit court's order is 43 pages.
[2] This claim is addressed in Part V of this opinion.
[3] This claim is addressed in Part VI of this opinion.
[4] A Brady claim may be presented as a newly discovered evidence claim. However, to constitute newly discovered evidence, the evidence must satisfy the requirements articulated in Rule 32.1(e), Ala. R.Crim. P. The appellant did not attempt to present his Brady claim as newly discovered evidence.
[5] Rule 78, Ala. R. Civ. P., provides, in part: "Unless the court orders otherwise, an order granting a motion to dismiss shall be deemed to permit an automatic right of amendment of the pleading to which the motion is directed within ten (10) days from service of the order."
[6] The appellant does not identify what new evidence exists that he alleges should be considered.
[7] Because he did not first present the remaining Brady claims to the circuit court, they are not properly before this court. See Morrison v. State, 551 So.2d 435 (Ala.Crim.App.1989).
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103 Cal.App.2d 832 (1951)
EUGENE S. KAYNOR et al., Plaintiffs and Respondents,
v.
SAUL FISCH, Appellant; JOHN O. SANIGER et al., Interveners and Respondents.
Civ. No. 17781.
California Court of Appeals. Second Dist., Div. Three.
Apr. 27, 1951.
Harry J. Miller for Appellant.
Martin & Bowker for Respondents.
WOOD (Parker), J.
Action for declaration of rights and to quiet title to an easement. Judgment was in favor of the plaintiffs and the interveners. Defendant appeals from the judgment.
Appellant asserts in part that the court erred in granting a wider right of way over defendant's ranch than the road which existed when defendant sold land to plaintiffs; that the court erred in enlarging the easement from a right of way for ingress and egress to include "all road purposes"; and that since there was a more convenient means of ingress and egress an easement over defendant's ranch was not necessary, and that no grant of easement by implication arose.
In 1931 defendant Fisch purchased the west half of Lot 72 of tract 102 in Los Angeles County. The front or south line of Lot 72 adjoins Foothill Boulevard. The lot is rectangular and extends northerly about 727 feet. In 1936 defendant Fisch purchased a parcel of land which adjoins the northeast corner of said Lot 72 (but it does not adjoin the west half of that lot), and in 1945 he sold said parcel to plaintiffs Kaynor. Thereafter, the Kaynors sold a portion of that property to the interveners, Mr. and Mrs. Saniger. The first parcel of land purchased by defendant will be referred to as the Fisch ranch, and the second parcel will be referred to as the Kaynor ranch.
Since 1913 there had been an unpaved road upon the Fisch ranch along the west line thereof, extending from Foothill Boulevard to the north line. A ranch known as the Ferree ranch adjoins said Lot 72 on the north. Along the south line of the Ferree ranch there was an unpaved road which was a continuation of the road that was on the Fisch ranch. That road adjoined a road that extended across the Kaynor ranch and upon lands to the north of the Kaynor ranch. In other words, there was a continuous open road from Foothill Boulevard to the lands north of the Kaynor ranch, which road extended north across the Fisch ranch along the west line thereof, and then east across the Ferree ranch along the south line thereof, and then across the Kaynor ranch. After defendant purchased the second parcel of land (the Kaynor ranch) in 1936, he used the road on the Ferree ranch and the road on the Fisch ranch to go from the Kaynor ranch to Foothill Boulevard and to return from that boulevard to the Kaynor ranch. *835 On March 31, 1948, Mr. and Mrs. Ferree, who owned the land adjoining the Fisch ranch on the north, by a deed of easement granted to plaintiffs an easement for ingress and egress within the south 20 feet of the Ferree ranch. (This action was filed on November 5, 1947.)
Plaintiffs alleged in their fourth amended complaint, in part, that at the time defendant sold the Kaynor ranch to plaintiffs the plaintiffs had "no access from" said property to a public highway; and they still have no access to a public highway; that they are entitled to a private way of necessity over defendant's land to Foothill Boulevard; that there is a private road along the westerly 20 feet of the Fisch ranch. In the second cause of action therein, they alleged that plaintiffs are the owners and entitled to possession of a right of way over and through the westerly 20 feet of the Fisch ranch "as appurtenant to" the Kaynor ranch; that defendant claims an interest in and to said easement and right of way adversely to the plaintiffs. In the third cause of action plaintiffs alleged that about April 1, 1945, defendant offered to sell the Kaynor ranch to plaintiffs together with an easement for all road purposes over the westerly 20 feet of the Fisch ranch for the sum of $10,500; that plaintiffs orally accepted said offer; that plaintiffs paid said consideration, and on April 13, 1945, defendant conveyed the Kaynor ranch to plaintiffs; that during negotiations regarding the sale the defendant told plaintiffs that an easement over defendant's land would be included in the property sold to plaintiffs; that until August 1, 1947, plaintiffs believed that they had acquired said easement; that the failure to include said easement in the deed was due to the fraud of defendant in omitting the easement from the deed. In the fourth cause of action plaintiffs alleged that by mutual mistake of plaintiffs and defendant the deed omitted a provision conveying said easement. In a fifth cause of action it was alleged that said mistake was brought about by the failure of plaintiffs and defendant to advise the scrivener, who prepared the deed, to include therein a provision conveying said easement.
In 1913 the person who owned the land which adjoins the Kaynor ranch on the north and the person who then owned the Kaynor ranch made a road, with the consent of the person who then owned the Fisch ranch, on the Fisch ranch along the west line of the ranch from the north line to the south line or Foothill Boulevard. A witness, called by plaintiffs, *836 who is the son of the person who owned the land north of the Kaynor ranch, testified that in 1913 he resided on the land north of the Kaynor ranch; that his mother still resides there; that he saw the road above referred to "staked out" and that it was made the width of two hayracks (with bales of hay on them) or 24 feet, and the road was straight; that the road was used to gain access to the land where he resided, and that it has been used continuously for such purpose since 1913; that at the present time the road is not 24 feet wide, the road "varies in width" and "isn't a straight line width"; when automobiles pass each other, it is necessary to "pull off on parts of the road that are not bare"; in order for automobiles to pass, it is necessary that one of them go upon plowed ground on the east side of the road and that the other one go upon hard surface and weeds on the west side.
There was evidence (plaintiffs' Exhibits 6 and 9A--plats of surveys) showing (1) that the easterly edge of the traveled portion of the road for a distance of 510 feet north from Foothill Boulevard was approximately 18 feet from the westerly line of the Fisch ranch; (2) that the easterly edge of said traveled portion of the road for the next 50 feet was approximately 17 feet from the said westerly line; (3) the easterly edge of the traveled portion for the next 40 feet was various distances from said westerly line, ranging from a maximum of approximately 17 feet to a minimum of 11 feet; (4) the easterly edge for the next 112 feet was various distances from said westerly line, ranging from a maximum of approximately 15 feet to a minimum of 11 feet; (5) the easterly edge for the last 16 feet (being at the turn in the road) was various distances from said westerly line, ranging from a minimum of approximately 15 feet to a maximum of 26 feet. The trial judge, with the consent and in the presence of counsel for the parties, made an inspection of the premises.
The court found, among other things, that at the time of the sale of the Kaynor ranch to plaintiffs that ranch did not front upon a public street, and there was no means of ingress or egress thereto or therefrom except over the Fisch ranch; that on the date of said sale to plaintiffs, and for more than 30 years prior thereto, there existed a road (particularly described in another finding) over the westerly portion of the Fisch ranch running from Foothill Boulevard to the north line of the ranch, and thence running across the Ferree ranch within the south 20 feet of that ranch; that defendant owned the Fisch ranch and the Kaynor ranch for more than *837 eight years prior to April 13, 1945, and used the road, referred to in the findings, continuously to gain access to the Kaynor ranch, and said road was the only means of ingress and egress to and from the Kaynor ranch, and connected the Fisch ranch and the Kaynor ranch; that said road was open, obvious and necessary for the use of the Kaynor ranch and on April 13, 1945, and prior thereto, was used obviously and permanently by defendant for the benefit of the Kaynor ranch; that the plaintiffs, and the interveners Mr. and Mrs. Saniger, own and hold an easement for ingress and egress over the Ferree ranch within the south 20 feet thereof; that said easement joins and connects the Fisch ranch with the Kaynor ranch; that by the deed from defendant to plaintiff(s) there was conveyed to plaintiff(s), and said plaintiff(s) acquired, an easement by implied grant and by necessity over the westerly portion of the Fisch ranch (which portion is particularly described in the findings by metes and bounds, including measurements by degrees and minutes). The said westerly portion, so described in the findings extended along the west line of the Fisch ranch from the south line of the ranch to the north line thereof, and easterly from the west line to the easterly edge of the traveled portion of the road, as shown by plaintiffs' Exhibits 6 and 9A (which exhibits are hereinabove referred to), and which easterly edge of the road is particularly defined and described hereinabove in referring to said exhibits.
The court further found that defendant was not guilty of fraud in connection with his agreement with plaintiffs; that the Kaynor ranch does not adjoin the Fisch ranch; that defendant has not interfered with plaintiffs' use of the road; that defendant did not represent that an easement or right of way over the entire westerly 20 feet of the Fisch ranch would be included in the property sold to plaintiffs; that defendant Fisch did not represent that an easement was included in the description of the property set forth in the deed; that the failure to include description of the road in the deed was not the result of any mistake on the part of plaintiff(s) and defendant.
The judgment provided that the plaintiffs and interveners are the owners and holders of an easement for ingress and egress and all road purposes over said westerly portion of the Fisch ranch (which westerly portion is designated hereinabove by reference to the findings and certain exhibits).
Appellant contends, as above indicated, that the court erred in finding that by the deed from defendant to plaintiffs made *838 in April, 1945, conveying the Kaynor ranch, the plaintiffs acquired "an easement by implied grant and necessity over more than the existing road"; and that the "court should have restricted the easement, if any, to the description of the road which existed on the Fisch ranch in April, 1945, when Fisch transferred the Kaynor-Saniger ranch to the respondents, Kaynor, and should not have allowed the wider right of way sought by the respondents." [1] The evidence shows that there is, and has been for more than 30 years, a road along the westerly line of the Fisch ranch which road is, and was during said time, used by various persons, who were owners of ranches north of the Fisch ranch, as the only means of ingress and egress to and from their ranches. Also, the evidence shows that the defendant during the eight years he owned the Kaynor ranch, used said road and the road along the south portion of the Ferree ranch in going from the Kaynor ranch to Foothill Boulevard and in going from the boulevard to the ranch. Also, the evidence shows that the Kaynors, at the time of trial and during the three and one-half years they owned the Kaynor ranch prior to the trial, were and had been using said roads in going from the ranch to the boulevard and from the boulevard to the ranch. It is clear that, at the time defendant conveyed the Kaynor ranch to plaintiffs, there was and had been for many years an easement over the road on the westerly portion of the Fisch ranch for the benefit of the Kaynor ranch. [2] The question as to the width of the existing road or easement over the Fisch ranch was one of fact for determination of the trial court. [3] There was evidence that the main traveled portion of the road was not in a straight line, and also that more space than the main traveled portion was required in order for automobiles to pass on that road. The easterly edge of the main traveled portion of the road was shown by a survey which was made by a licensed surveyor. The evidence was ample to support the findings of the court regarding the width of the easement. [4] Whether plaintiffs acquired an easement by implication over the Fisch ranch by the deed from defendant to them depended upon all the circumstances and the intention of the parties at the time the conveyance was made. Section 1104 of the Civil Code provides: "A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used *839 by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed." In Fristoe v. Drapeau, 35 Cal.2d 5, it was said at page 9 [215 P.2d 729]: "Section 1104 [Civ. Code], which relates to the creation of easements by implied grant, must be read with section 806 of the Civil Code, which defines the extent of all servitudes, and also in the light of the common law rules governing easements by implication. Section 806 provides that 'the extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.' ... When the grant is implied, its terms must be inferred from all of the circumstances of the case. The effect of section 806 is to establish intent as the criterion, and this is in accord with the rationale of the rules governing easements by implication." It was also said in that case at page 10: "[I]n determining the intent of the parties as to the extent of the grantee's rights, we are of the opinion that consideration must be given not only to the actual uses being made at the time of the severance, but also to such uses as the facts and circumstances show were within the reasonable contemplation of the parties at the time of the conveyance." [5a] It is reasonably to be inferred that defendant intended to convey a right to use the road over the westerly portion of his ranch and that the plaintiffs reasonably expected to take and hold that right. [6] The question as to the intent of the parties with reference to the easement was one of fact for the determination of the trial court. [5b] The evidence was sufficient to support the findings that the plaintiffs acquired an easement by implied grant and by necessity over said westerly portion of the Fisch ranch.
[7] Although the Kaynor ranch and the Fisch ranch were not adjoining parcels of land, the easement or right of way over the Ferree ranch, from the Kaynor ranch to the Fisch ranch, which had been used many years by various persons including the defendant, was appurtenant to the Kaynor ranch and was, under the circumstances here, a sufficient connection between the Kaynor ranch and the Fisch ranch. In Leonard v. Leonard, 2 Allen (Mass.) 543, a grantor had conveyed two lots of land referred to therein as lots A and B to different persons (plaintiff and defendant). Only Lot A fronted on a highway, and another lot referred to as Lot C (owned by a stranger) was between Lots A and B. There was a road which extended from the highway across Lots A *840 and C to Lot B, and the road had been used many years by the grantor of Lots A and B. The question therein was whether the owner of Lot B (defendant) had an easement over Lot A (owned by plaintiff). In that case it was said: "It follows that, by conveying to him [defendant] lot B, the easement over lot C passed as appurtenant, and a right of way by necessity passed by the grant over lot A. In other words, there was appurtenant to the land granted to the defendant a right of way to other land of the grantor, and there being no access to the highway except by the way appurtenant and by passing over the land of the grantor, a right of way by necessity was conveyed over lot A. In legal effect, the rights of the parties were the same as if the lots A and B adjoined each other, instead of being separated by lot C, over which the right of way by prescription existed."
The judgment is affirmed.
Shinn, P. J., and Vallee, J., concurred.
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283 S.W.2d 926 (1955)
Thomas W. WHITE, Respondent,
v.
James Martin NELSON, III, Appellant.
No. 29154.
St. Louis Court of Appeals. Missouri.
November 15, 1955.
William J. Becker, Clayton, for appellant.
Charles M. Shaw, Wayne C. Smith, Jr., Clayton, for respondent.
SAM C. BLAIR, Special Judge.
Litigation and various legal affairs were conducted by Thomas W. White, an attorney, for his client, James M. Nelson, III. Nelson entrusted $16,000-$18,000 to White for disbursement in his interest. To Nelson's satisfaction, White accounted for all of *927 this money except $4,500. This sum White retained as a partial fee for his services. This retention was with Nelson's full knowledge. Later White advised Nelson that he was charging, above and over the $4,500, an additional fee of $2,275. Not immediately, but a few weeks later, Nelson told White that he owed him nothing and that he would not pay the $2,275 or any part of it. Then White sued him for the additional fee of $2,275. White's petition alleged that Nelson and he had accounted together regarding all moneys that came to White's hands, agreed on a balance of $2,275 as being due White, and that Nelson had promised to pay that amount. Nelson answered by denying there had been any accounting and by asserting that he owed nothing. He counterclaimed for an accounting of all of the services White had rendered and for a refund of that part of the $4,500 which the court might find White had not earned as a fee. White answered the counterclaim by reiterating that the parties had already accounted and settled all of their affairs and by denying that Nelson was entitled to any further accounting. Before the court Nelson's counterclaim for the accounting was tried and the resulting finding denied him an accounting. Thereafter a trial by jury on White's petition resulted in a verdict for White for $2,275. Nelson appeals. White's integrity is not questioned. This is merely a dispute between Nelson and White regarding what White's services entitle him to charge as a total fee.
Supreme Court Rules compel us to notice conspicuous deficiencies in the transcript and brief filed by Nelson in this court. Absent from the transcript are both the decree denying Nelson an accounting and the judgment awarding White $2,275. The transscript merely quotes the verdict of the jury for $2,275, and then continues: "Upon which judgment was then and there entered as follows: (Judgment entered as above verdict on May 13, 1954)." These mere recitals are no compliance with Section 512.110, V.A.M.S., or Supreme Court Rule 1.04, 42 V.A.M.S., providing: "The transcript on appeal, required by Section 135 (1943 Act), as amended [V.A.M.S. § 512.110], shall always include, in chronological order * * *," specified documents and rulings and "the judgment or order appealed from * * *." And there is no reference anywhere to any decree denying the accounting.
The notice of appeal recites that Nelson "hereby appeals * * * from the judgment and order (sic) overruled defendant's motion for new trial." Nelson cannot appeal from the order overruling the motion for a new trial. Weller v. Hayes Truck Lines, 355 Mo. 695, 700, 197 S.W.2d 657, 659 [3]; Edwards v. Sittner, Mo.App., 206 S.W.2d 578, 580; Section 512.020, V.A. M.S., note 92. His appeal must be, if at all, from the decree and judgment, and both have been omitted from this record. This omission alone is sufficient reason for dismissal of this appeal. S.C. Rule 1.15; Mo.Dig., Appeal & Error, Vol. 2A.
We are mindful of the authority granted us to require the clerk of the trial court, of our own motion, "to send up a complete transcript or any portion thereof or any original documents or exhibits." S.C. Rule 1.03. A different record could lead us to call for the decree and judgment, but the circumstances existing in this one would render such action unavailing. For Nelson's brief palpably fails to comply with S.C. Rule 1.08(a) (3) and (d) requiring the points relied on to show what actions or rulings of the court are sought to be reviewed and requiring those points to state briefly and concisely why the court was wrong in such actions or rulings. The rule is express that "Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule." S.C. Rule 1.08(d). All of the points relied on here are the merest abstract statements of law. All fail entirely to state what actions or rulings of the court are claimed to be erroneous and why it is claimed they were wrong.[1]
*928 Obedience to this rule calls for no cryptic or unique legal discernment or technique. Points relied on need only be a "concise outline of the part of the brief called `an argument.'" Ambrose v. M. F. A. Co-operative Ass'n, Mo., 266 S.W.2d 647, 650. "All that is required to comply with Rule 1.08(a) (3) is a concise statement of what the Court did that is claimed to be wrong and a concise statement of why it is contended the Court was wrong. The purpose of having this in the `points relied on' is to tell the Court what the appellate issues are so it will know what the argument is about." Ambrose v. M. F. A. Co-operative Ass'n, supra, 266 S.W.2d 651.
Repeatedly the bar has been admonished that obedience to this rule will be enforced. In this there is no arbitrariness or injustice. "The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. * * * If they are not to be obeyed, they should be done away with once for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men, viz., those who labor to obey it the very ones it should not injure." Sullivan v. Holbrook, 211 Mo. 99, 104, 109 S.W. 668, 670.
Our authority to consider "errors affecting substantial rights", although not properly preserved for review so as to prevent a "manifest injustice or miscarriage of justice", has not been forgotten. S.C. Rule 3.27. But our examination of the whole record, and it has been examined closely, suggests nothing at all to justify application of this rule. On the contrary, our study convinces us that the ruling which denied Nelson an accounting and the verdict awarding White $2,275 were both arrived at without error and warranted by this record. Consequently we are not at liberty to condone the present violations of Rules 1.04 and 1.08(a) (3) and (d). Ambrose v. M. F. A. Co-operative Ass'n, supra, 266 S.W.2d 648-651; Bonnot v. Tackitt, Mo.App., 265 S.W.2d 748, 751; Berghorn v. Reorganized School Dist. No. 8, Mo., 260 S.W.2d 573, 580; Daugherty v. Maddox, Mo., 260 S.W.2d 732, 734; Townsend v. Lawrence, Mo.App., 267 S.W.2d 489, 490; Farmer v. London & Lancashire Ins. Co., Mo.App., 274 S.W.2d 517, 520; Banks v. St. Louis Cab Co., Mo.App., 271 S.W.2d 195, 196; State ex rel. Highway Comm. v. Schade, Mo.App., 271 S.W.2d 196, 198; Joseph v. Mutual Garage Co., Mo.App., 270 S.W.2d 137, 143; Jones v. Giannola, Mo. App., 252 S.W.2d 660, 663; Baker v. Atkins, Mo.App., 258 S.W.2d 16, 22.
This appeal must be dismissed. It is so ordered.
ANDERSON, P. J., and FRANKLIN FERRISS, Special Judge, concur.
NOTES
[1] These are Nelson's "points relied on": "I. An attorney who comes into possession of his client's money and retains part or all of it as his attorney's fees is required to account to his client for it. II. Unless a new agreement to pay is made and a new obligation is entered into by the debtor, after a dispute as to what is due, the theory of `account stated' cannot be made to apply. III. The question as to whether a case of account stated was made is a question of law for the Court and not for the jury. IV. The giving of an instruction on two inconsistent and conflicting theories of the case is reversible error."
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436 F.3d 137
UNITED STATES of America, Appellee,v.Jey SONG, Defendant-Appellant.
Docket No. 05-1802-CR.
United States Court of Appeals, Second Circuit.
Submitted: January 13, 2006.
Decided: January 27, 2006.
Lee Greenstein, Law Office of Lee Greenstein, Albany, NY, for Defendant-Appellant.
Edward P. Grogan, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney for the Northern District of New York, Robert P. Storch, Assistant United States Attorney, on the brief), United States Attorney's Office for the Northern District of New York, Albany, NY, for Appellee.
Before: CABRANES and SACK, Circuit Judges, and AMON, District Judge.*
JOSÉ A. CABRANES, Circuit Judge.
1
Defendant Jey Song appeals from a judgment of conviction, signed March 15, 2005, after a jury found him guilty of one count of transporting an illegal alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18 U.S.C. § 2. The District Court sentenced Song principally to a term of fifteen months' imprisonment and three years' supervised release.
2
On appeal, Song contends that the District Court (1) abused its discretion in excluding as hearsay certain statements that Song sought to include during his testimony — namely, instructions he received from an unnamed "manager" and his assistant, "Mrs. Kim," on the day of his arrest; (2) denied Song a fair trial by admitting into evidence "irrelevant and prejudicial" testimony by government agents, as well as related statements during the Government's summation, regarding the alleged notoriety of the area where Song was arrested as a site for illegal entry into the United States; and (3) erred in imposing an "excessive" sentence that not only failed to take into account certain "ameliorating and positive factors that existed in Song's favor," but also improperly punished him for failing to cooperate with the Government.
3
We address here Song's most significant argument on appeal — namely, that the District Court erred when it precluded Song from testifying as to certain statements made to him by the "manager" and Mrs. Kim, who allegedly had hired Song to serve as a tour guide after he had responded to an advertisement on a Korean language website seeking "drivers" for an unspecified purpose. As a preliminary matter, we agree that much or all of the excluded testimony was not in fact hearsay, inasmuch as the challenged statements were offered not for the truth of the matters asserted, but rather, to demonstrate the motivation behind Song's actions, which were taken in response to the assertedly false statements made to him by the "manager" and Mrs. Kim. See United States v. Puzzo, 928 F.2d 1356, 1365 (2d Cir.1991) (concluding that excluded testimony "apparently was not offered for the truth of the matters asserted" where "the conversations ... would assertedly have established that [the defendant] had been duped ... into thinking he would be carrying back a package of gold jewelry, not cocaine"); United States v. Dunloy, 584 F.2d 6, 11 (2d Cir.1978) ("Although [defendant's] testimony as to what he had been told by [his friend] regarding the contents of [a] package [later found to contain cocaine] was inadmissible to prove the truth of the statement itself, since for that purpose it was hearsay, the testimony was clearly admissible to prove that the statement had been made, which was relevant to the material issue of whether [defendant] believed that the package contained valuables or securities rather than narcotics.").
4
Despite this error, we conclude that Song's explanation for his activities on the day of his arrest — namely, that he was an innocent tour guide who had been deceived into traveling to the Canadian border to pick up what he believed to be a group of tourists — was adequately presented to the jury, and thus the erroneous exclusion of the challenged testimony did not affect Song's "substantial rights." See Fed. R.Crim.P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."). In addition to Song's written statement to law enforcement on the day of his arrest, which indicated that Song expected to "pick[ ] up tourists and show[ ] them sightseeing," the jury was also permitted to consider Song's testimony at trial, much of which conveyed, without objection by the Government, the alleged instructions Song had received from the "manager" and his assistant as they directed Song through various parts of upstate New York until he unwittingly arrived at the Canadian border. See, e.g., Trial Tr. at 265 ("Initially, there was another driver who would work for them, but he wasn't able to do so; therefore, the manager asked me to do the job."); id. at 266 ("It's ... common for a change of plans in terms of tourism. Therefore, yes, the plan was changed from what I was originally told to do . . . ."); id. at 268 ("When I was near Champlain or I-87... I was told to go to Roxham Road."). Although it is certainly the case that Song was unable to convey the entirety of the instructions he had received from his handlers, Song was nevertheless permitted to testify in relatively great detail as to his state of mind as he continued traveling toward the Canadian border:
5
Q: Now, during this conversation when the terms changed, what did you say?
6
A: Well, first, I was thinking of my own business schedule. They continued to be telling me how desperate they were and the car was already rented and I was driving. I had a difficult time saying no.
7
....
8
Q: What were your reasons [for] going further north to Watertown[?]
9
A: I was angered while I was waiting for them at ... Watertown, first, because they didn't keep their promise. So at that point I had to choose to either follow through and carry out what I was going to do, or go back and just attend [my] own business trip. However, I was in [a] dilemma because ... if I chose to go back, it would be a waste of time for me and [a] waste of money.... So I was debating whether I should go back.... So ... if I choose to pick them up and then take them to ... New York City as I was supposed to, then I figure that I ... still ... could make the money and make the profit and still follow through with my business plan.
10
....
11
A: I was also thinking of the fact that they were desperate of the driver. I couldn't ignore that fact. Therefore, I had decided to ... give the ride to those people.
12
Trial Tr. at 266-68. Accordingly, because Song was permitted to testify in sufficient detail as to his theory of the case, and because the Government presented overwhelming evidence that Song had acted with "reckless disregard" of the undocumented or illegal status of his alien passenger,1 we conclude that the District Court's error in excluding the challenged evidence was harmless. See Puzzo, 928 F.2d at 1366 ("Although the district court erroneously cut short some questioning the responses to which would not have been hearsay, [defendant] was ultimately able to testify, and his counsel to argue, in support of the theory that [his accomplice] had misled [him] . . . ."); United States v. Lawal, 736 F.2d 5, 9 (2d Cir.1984) (erroneous exclusion of state of mind evidence harmless because "the jury was fully apprised, through the unchecked testimony of the agents, of the major aspects" of the defendant's claim); Dunloy, 584 F.2d at 12 ("Any error in the trial judge's initial ruling... was ... cured or rendered harmless by the admission into evidence ... of the essential testimony relied on by appellant.").
13
* * * * * *
14
We have carefully considered defendant's remaining arguments and find each of them to be without merit. Accordingly, for the reasons stated above, the judgment of the District Court is hereby AFFIRMED.
Notes:
*
The Honorable Carol B. Amon, United States District Judge for the Eastern District of New York, sitting by designation
1
In addition to relying on the surveillance videotape recording Song's arrival at the border and his subsequent flight from the scene after picking up his passenger, the jury, in finding Song guilty, could also have justifiably relied on the implausibility of Song's explanations for his behavior, which the District Court later deemed "incredible" and "fabricated."See United States v. Torres, 901 F.2d 205, 240 (2d Cir.1990) (erroneous exclusion of proffered testimony harmless where "[t]he evidence of [defendant's] guilt was strong, [another witness] was allowed to testify concerning the planned outing to the beach, and the excluded testimony was inherently implausible").
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4289
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT MINTER, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:04-cr-00026)
Submitted: September 27, 2006 Decided: October 23, 2006
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deirdre H. Purdy, BAILEY & GLASSER, LLP, Charleston, West Virginia,
for Appellant. Charles T. Miller, United States Attorney,
Stephanie L. Haines, Assistant United States Attorney, William P.
Margelis, Third Year Law Student, Huntington, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Minter, Sr. appeals his sentence at the low end of
his advisory guideline range to forty-one months in prison and
three years of supervised release after pleading guilty to
distributing a quantity of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (2000). On appeal, Minter contends the district court
violated the Due Process Clause of the Fifth Amendment by finding
his relevant conduct and determining his advisory range based on a
preponderance of the evidence. We affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
A sentence within a properly calculated advisory guideline range is
presumptively reasonable. United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). This
presumption can only be rebutted by showing the sentence is
unreasonable when measured against the factors under 18 U.S.C.
§ 3553(a) (2000). United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006), pet. for cert. filed, ___ U.S.L.W. ___ (July
21, 2006) (No. 06-5439). In considering the district court’s
calculation of the advisory range, we review its factual findings
for clear error and its legal conclusions de novo. United
States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
- 2 -
As we have recognized, judges continue to base sentencing
decisions after United States v. Booker, 543 U.S. 220 (2005), on a
preponderance of the evidence. See United States v. Morris, 429
F.3d 65, 72 (4th Cir. 2005). Moreover, a district court’s findings
by a preponderance of the evidence after Booker do not violate the
Due Process Clause. See United States v. Okai, 454 F.3d 848, 851-
52 (8th Cir. 2006); United States v. Vaughn, 430 F.3d 518, 525 (2d
Cir. 2005), cert. denied, Lindo v. United States, 126 S. Ct. 1665
(2006). Because Minter’s sentence was within a properly calculated
advisory guideline range, and he has not rebutted the presumption
of reasonableness, we conclude the sentence is reasonable.
Accordingly, we affirm Minter’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 3 -
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16 Cal.App.4th 184 (1993)
19 Cal. Rptr.2d 809
RICHARD B. HOFFMAN et al., Plaintiffs and Appellants,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Respondent.
Docket No. B048538.
Court of Appeals of California, Second District, Division Four.
June 1, 1993.
*186 COUNSEL
Perona, Langer & Beck, Major A. Langer and Ellen R. Serbin for Plaintiffs and Appellants.
Cummins & White, James O. White, Horvitz & Levy, Barry R. Levy and Douglas G. Benedon for Defendant and Respondent.
*187 OPINION
EPSTEIN, J.
In this case, we conclude that property owners are not entitled to recover under an "all risk" homeowners policy indemnifying them against damage to their property unless there is some manifestation of physical damage to the property during the policy period. Since there was no such manifestation during the policy period in this case (which extended until the sale of the subject property), there was no covered loss. Because of our resolution of this issue, we do not reach other issues tendered by the parties concerning the efficient proximate cause of damage the property is alleged to eventually have suffered, and the effect of a change in the exclusion provisions of the policy when it was renewed.
FACTUAL AND PROCEDURAL SUMMARY
This case reaches us after a general demurrer was sustained without leave to amend. (1) We therefore review the pleadings under established principles that require that we take as true all material factual allegations in the complaint, and that a demurrer should not be sustained unless the complaint, liberally construed, fails to state a cause of action on any theory. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497 [86 Cal. Rptr. 88, 468 P.2d 216]; Lloyd v. California Pictures Corp. (1955) 136 Cal. App.2d 638, 642 [289 P.2d 295].)
We take the following summary from the allegations of the fourth amended complaint, the charging pleading, and the policy which was attached to and incorporated within that pleading.
Factual Allegations
Appellants, Richard and Carol Hoffman, were the owners of a home in the city of Rolling Hills. The property is on the perimeter, but within, an area described as the "Flying Triangle" landslide. Earth movement was discovered in the opposite side of this area. "However, at that time, there was neither earth movement on plaintiffs' property nor reasonable cause to expect the earth movement to spread onto plaintiffs' property." Appellants sold their property in May 1984. By that time the Flying Triangle landslide had grown in scope and magnitude, but "it was not known and could not have reasonably been known from either a layman's point of view or from knowledgeable geotechnical personnel, that the Flying Triangle landslide had actually engulfed and/or was physically damaging plaintiffs' structure, and plaintiffs reasonably believed that at the time they sold their property there was no land movement and/or physical damage on their property."
*188 Nevertheless, appellants alleged, they received less than fair market value for their property because other parts of the area were in an active landslide. Almost a year later, in April 1985, they submitted a claim to their carrier, respondent State Farm Fire and Casualty Company, based on diminution of value to the property. At the time they did so, they "had not yet discovered, nor reasonably could have discovered ... that their property in 1983/1984 was actually moving and was in the active Flying Triangle landslide."
A few days later they sued State Farm, again alleging diminution in the value of their property as shown by the depressed sale price they received. It was only later in 1985 that plaintiffs received a geotechnical report and learned for the first time that their former home was engulfed within and actually moving as part of the Flying Triangle landslide. Appellants then amended their claim to allege actual damage to the residence, but again alleged that, until they received the report, "it could not have been known to a layperson and was not known to any geotechnical experts and could not have been known to any geotechnical experts that it was first moving and actually in the Flying Triangle landslide in 1983/1984."
Policy Provisions
The fourth amended complaint attached as an exhibit the policy in force when appellants sold their property. In pertinent part, the policy insured "for accidental direct physical loss to the" residence, except as provided in specific exclusions. Damage caused by earth movement was one of the excluded perils.[1]
*189 Procedural History
Appellants filed their original complaint on May 1, 1985. It was amended four times, the last amendments brought about by the sustaining of general demurrers. The fourth amended complaint was filed on August 14, 1989. It was in three causes of action: breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of statutory duty. In its general demurrer, State Farm argued (among other things) that appellants did not sustain a covered loss because there was no manifestation of damage to their property while they owned it, and whatever damage manifested itself later did not involve any insurable interest on their part. If there was no coverage, respondent argued, there could not have been a breach of the implied covenant or of the statutory duty (under Ins. Code, § 790.03, subd. (h)) to indemnify. The trial court sustained the demurrer, this time without leave to amend. A judgment of dismissal was duly entered, and appellants filed a timely notice of appeal.
DISCUSSION
As just discussed, this case reaches us on a demurrer. The demurrer was based on the pleadings, including the provisions of the insurance policy which appellants claim State Farm has breached. (2) In reviewing the pleadings, we are not bound by the determination of the trial court, but are required to render our independent judgment on whether a cause of action has been stated. (Miller v. Bakersfield News-Bulletin, Inc. (1975) 44 Cal. App.3d 899, 901 [119 Cal. Rptr. 92].) Having done so, we conclude that the trial court's ruling was correct.
I
(3) (See fn. 2.), (4) The original bases of appellants' claim, and of their lawsuit, was that the value of their property was diminished by its location in a landslide area and the effect that had on what buyers were willing to pay.[2]
The claim lacks merit. A policy of property insurance is a contract in which the insurer agrees to indemnify against covered perils. For these purposes, "perils" are "`fortuitous, active, physical forces such as lightning, wind, and explosion, which bring about the loss.'" (Garvey v. State Farm *190 Fire & Casualty Co., supra, 48 Cal.3d at p. 406.) Diminution in market value is not a covered peril. (State Farm Fire & Casualty Co. v. Superior Court (1989) 215 Cal. App.3d 1435, 1444, 1445 [264 Cal. Rptr. 269].) In fact, insuring land values is illegal in California, and doing so is a felony-misdemeanor. (Ins. Code, § 12660.)
II
(5) Appellants' principal claim is that their former residence did suffer a physical loss, even though they were unaware of it until after they had sold the property. They argue that their amended complaint, putting forth this theory, relates back to the original pleading, which was filed within the one-year limitations' period of the policy and Insurance Code section 2071.
The pertinent issues were extensively discussed by the Supreme Court in Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674 [274 Cal. Rptr. 387, 798 P.2d 1230]. The statute requires that suit on a policy be commenced within one year of the "commencement of the loss." That point, the court held, "should be determined by reference to reasonable discovery of the loss and not necessarily turn on the occurrence of the physical event causing the loss. Accordingly, we find that California law supports the application of the following delayed discovery rule for purposes of the accrual of a cause of action under section 2071: The insured's suit on the policy will be deemed timely if it is filed within one year after `inception of the loss,' defined as that point in time when appreciable damage occurs and is or should be known to the insured, such that a reasonable insured would be aware that his notification duty under the policy has been triggered." (51 Cal.3d at pp. 686-687; italics added.)
The insured must be diligent in the face of discovered facts (51 Cal.3d at p. 687), but the time for suit is tolled during the period that the insurer is reviewing a claim presented by the insured. (51 Cal.3d at p. 693.)
The importance of the point in time when appreciable damage occurs to rights under the policy was reemphasized by the court's treatment of the issue of allocation of coverage among successive insurers in cases of progressive loss. The court reviewed previous decisions, of its own and by the intermediate courts (51 Cal.3d at pp. 694-699), and concluded that "in first party progressive property loss cases, when ... the loss occurs over several policy periods and is not discovered until several years after it commences, the manifestation rule applies." (51 Cal.3d at p. 699.) Later insurers are not responsible for potential claims relating to a previously discovered and manifested loss. (Ibid.) Putting the concepts together, the court concluded *191 that the manifestation of the loss occurs at the inception of the loss; the concepts are the same, both defined by the time that there is appreciable damage that is known to the insured such as to trigger a duty to notify the insurer. (Ibid.)
Appellants have negatived any manifestation of damage to their former residence during the period of their ownership. Their pleading specifically and repeatedly alleges that there was no physical damage to the property while they owned it, that they were unaware of such damage and could not have been reasonably aware of it, and that an expert could not have reasonably known that the property was suffering damage from the Flying Triangle landslide. It would be difficult to allege the absence of manifestation with greater clarity.
Appellants say that at a point over a year after they sold the property, they did learn of damage due to the landslide. In legal terms, their allegation amounts to a claim that damage to the property became manifest at that time. The problem, of course, is that by then appellants no longer owned the property. Without ownership at the time of the manifestation of the loss, they lacked an insurable interest in the property. It is, of course, fundamental that an insurable interest is a requisite to a right to recover under a policy of indemnity. (Ins. Code, §§ 280, 286; International Service Ins. Co. v. Gonzales (1987) 194 Cal. App.3d 110, 117 [239 Cal. Rptr. 341].)
III
It follows that State Farm did not breach its contract with appellants by refusing to pay them for their claimed diminution in the value of their former residence, or for damage to the property. Since that is so, it did not breach the implied obligation to deal in good faith and fairly under the policy, nor its statutory duty to do so.[3]
*192 DISPOSITION
The judgment is affirmed. Respondent is to have its costs on appeal.
Woods (A.M.), P.J., and Soven, J.,[*] concurred.
NOTES
[1] The original policy excluded damage caused by earth movement. In a series of cases, including principally Sabella v. Wisler (1963) 59 Cal.2d 21, 25 [27 Cal. Rptr. 689, 377 P.2d 889] and Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 401 [257 Cal. Rptr. 292, 770 P.2d 704], our Supreme Court has explained that an exclusion of this kind will not preclude coverage if the "efficient proximate cause" of loss is a covered peril. The typical example is third party negligence (a covered peril) which proximately causes earth movement which, in turn, damages the insured property. In an apparent effort to avoid the result of that case, homeowner policies have been amended to exclude coverage for damage caused by earth movement, whether or not the earth movement was brought about by a covered peril. The policy in force when appellants sold their residence included such language. They dispute whether the notice of renewal adequately informed them of the change in coverage, and whether, in any case, such a change is permissible. The argument that it is not is based on Insurance Code section 530, which has been construed to require a property insurer to provide coverage whenever an insured peril is the "efficient proximate cause" of the loss. (See Howell v. State Farm Fire & Casualty Co. (1990) 218 Cal. App.3d 1446, 1456 [267 Cal. Rptr. 708], and conc. opn. of Merrill, J., at p. 1461.) Because of our conclusion that no covered loss occurred during the time appellants owned the insured property, we need not and do not reach these issues, or the related issue of whether appellants' allegation in previous pleading that earth movement (rather than third party negligence) was the proximate cause of their loss, is a binding admission by pleading. (See 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 412, p. 458.)
[2] Appellants appear to have abandoned this claim in argument before the trial court but resurrect it here. They are entitled to do so, since the rule that a litigant cannot argue matters for the first time on appeal does not apply to questions of law. (Carman v. Alvord (1982) 31 Cal.3d 318, 324 [182 Cal. Rptr. 506, 644 P.2d 192].)
[3] Appellants recognize that private lawsuits under Insurance Code section 790.03, subdivision (h) are no longer cognizable in light of the overruling of Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880 [153 Cal. Rptr. 842, 592 P.2d 329], by Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 [250 Cal. Rptr. 116, 758 P.2d 58], but correctly assert that their suit falls within the "window" recognized by Moradi-Shalal for pending cases.
[*] Judge of the Los Angeles Superior Court sitting under assignment by the Chairperson of the Judicial Council.
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975 F.2d 1551
Mooney (Dennis)v.Benasa Realty Company, t/a Wild Acres, t/a Wild Acres CountyClub, t/a Wild Acres, Inc. Benasa Holdings, Inc., WildAcres, Inc., Sylvan Pools, Inc., KDI Corporation, BenasaRealty Co., c/o First Eastern Bank, N.A., BenasaInvestments, Inc., c/o Corporation Guarantee and Trust Co.,Wild Acres Country Club, Inc., MLA Management Associates,Inc., Mountain Leisure Assocs., Inc., Wild Acres LakesProperty & Homeowners Assoc., KDI Sylvan Pools, Inc., Wild Acres
NOS. 91-5738, 91-5782
United States Court of Appeals,Third Circuit.
Aug 31, 1992
1
Appeal From: M.D.Pa.
2
VACATED IN PART AND AFFIRMED IN PART.
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22 F.3d 1104NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Daniel R. STEWART, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 94-3044.
United States Court of Appeals, Federal Circuit.
March 16, 1994.
Before RICH, LOURIE, Circuit Judges, and MILLS, District Judge.*
DECISION
PER CURIAM.
1
Daniel R. Stewart petitions for review of the June 25, 1993, Initial Decision of an Administrative Judge (AJ), Docket No. DC0752930399-I-1, dismissing as untimely filed Stewart's appeal of the Department of the Air Force's July 9, 1990, decision separating Stewart for failure to accept a return assignment to the United States. The AJ's decision became the final decision of the Merit Systems Protection Board (Board) on September 23, 1993, when the Board denied review of the AJ's decision. We affirm.
DISCUSSION
2
The Air Force's July 9, 1990, notice clearly informed Stewart that an appeal of its decision to separate him had to be "submitted within 20 days after the effective date" of his separation, indicated as being September 8, 1990. The notice also explained in detail how to file such an appeal and what type of information to include therein. The Air Force even attached to the notice an optional form for use in filing such an appeal. Finally, in addition to the foregoing, the notice also informed Stewart that he had the right to review all records pertaining to his separation and to see a copy of the regulations pertaining to return assignment.
3
Stewart did not appeal his separation to the Board until April 17, 1993, approximately two and one-half years after his effective separation date. Upon receipt of Stewart's untimely appeal, the AJ informed him in an Acknowledgment Order dated April 22, 1993, that he had the burden of proof on timeliness. The AJ ordered him to file "evidence and argument showing that [his] appeal was timely filed or that good cause existed for the delay."
4
In response, Stewart argued to the AJ that the twenty day time period in his separation notice should not be enforced. Stewart contended that the fact that he was stationed in Israel when he recieved his separation notice effectively prevented him from reviewing the regulations and records located in Greece pertaining to his separation, and therefore, the notice regarding his appeal rights was somehow invalid. The AJ was unpersuaded and noted that there was no evidence of record that Stewart ever made any attempt to obtain this information while he was in Israel or that access to this information was denied. The AJ further noted that Stewart had failed to explain how his failure to review the pertinent regulations affected his ability to file a timely appeal. Accordingly, the AJ found that Stewart had failed to establish good cause for waiver of the filing requirement and consequently dismissed his appeal, stating in pertinent part:
5
Under these circumstances, and especially because the delay in filing was substantial, the appellant has failed to demonstrate due diligence or ordinary prudence in filing his appeal.
6
The Board has broad discretion in deciding whether or not to waive the time limit for filing an appeal, and this court will not substitute its own judgment for that of the Board. Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed.Cir.1992) (in banc). In addition, this court reviews Board decisions under a very narrow standard, affirming them unless they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, (2) obtained without procedures required by law, rule, or regulation having been followed, or (3) unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c) (1988). In this case, Stewart has failed to persuade us that the AJ's decision, based on Stewart's failure during the relevant time period to take any action to gain access to the pertinent regulations and records, falls within any of these categories. We therefore affirm the decision below.
*
The Honorable Richard Mills of the Central District of Illinois sitting by designation
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED APRIL 15, 2015
NO. 03-15-00022-CV
Beacon Hill Staffing Group, LLC; Cody Cox; and Brannon Ross, Appellants
v.
Kforce, Inc., Appellee
APPEAL FROM 98TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND FIELD
DISMISSED ON JOINT MOTION -- OPINION BY CHIEF JUSTICE ROSE
This is an appeal from the order signed by the district court on December 19, 2014. The parties
have filed a joint motion to dismiss the appeal with prejudice, and having considered the motion,
the Court agrees that the motion should be granted. Therefore, the Court grants the motion and
dismisses the appeal. Each party shall pay the costs of the appeal incurred by that party, both in
this Court and the court below.
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Filed 1/19/16 In re J.J. 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
(San Joaquin)
----
In re J.J. et al., Persons Coming Under the Juvenile C077920
Court Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No. J06087)
AGENCY,
Plaintiff and Respondent,
v.
LAURA J.,
Defendant and Appellant.
Laura J., mother of the minors, appeals from orders of the juvenile court entered at
the six-month review hearing terminating her reunification services. (Welf. & Inst. Code,
§§ 395; 366.21, subd. (e).)1 Mother contends the court erred in terminating her
reunification services because the proper statutory scheme was not employed.
1 Further undesignated statutory references are to the Welfare and Institutions Code.
1
Alternatively, mother argues the court erred in terminating her services because there was
a substantial probability the minors could be returned to her custody by the 12-month
review date. We affirm.
FACTS
In March 2011, Alameda County Social Services filed a petition to remove two of
mother’s five children, S.H., age five, and V.J., age six. The other three children, S.D.,
age eight; J.J., age six; and S.J., age three, remained in mother’s custody.2 The petition
alleged mother physically abused S.H. and V.J., had neglected all the minors, and her
mental disabilities interfered with her ability to care for the minors. The juvenile court
sustained the petition.
The disposition report noted mother was developmentally delayed and had not
used services which were available to her in the past. At the disposition hearing, the
court placed S.D. with the maternal grandmother and dismissed jurisdiction as to her.
S.H. and V.J. were placed in foster care with a reunification plan and J.J. and S.J.
remained with mother under a family maintenance plan.
By September 2011, mother had moved to another county and was accessing
services through the Regional Center. Family maintenance and family reunification
services were continued.
The next review report recommended another six months of services. Mother was
beginning overnight visits with S.H. and V.J. In March 2012, the court ordered further
services. The court granted a seven-day trial visit for S.H. and V.J. and returned the two
minors to mother’s custody in July 2012 with family maintenance services.
2 S.D., S.H., and V.J. are not subjects of this appeal.
2
The status review report said mother was fully engaged in her case plan and
cooperating with the service providers. In August 2012, the court continued family
maintenance for all four minors and transferred the case to San Joaquin County.
San Joaquin County accepted the transfer of the ongoing family maintenance case.
In February 2013, the San Joaquin County Human Services Agency (Agency) filed a
status review report noting ongoing concerns with mother’s ability to adequately care for
the four minors. The concerns related primarily to the poor state of the minors’ clothing
and their inadequate hygiene. V.J. and mother were both Valley Mountain Regional
Center (VMRC) clients and had wrap around services to work on V.J.’s aggressive
behaviors. The wrap around provider had concerns about mother’s yelling at the minors
and her ability to care for them. The wrap around provider believed mother needed
further parenting instruction although mother had completed her parenting and
counseling services in Alameda County.
In March 2013, prior to the review hearing, the Agency filed a supplemental
petition (§ 387) to remove V.J. alleging that V.J. was out of control and mother had anger
management and alcohol abuse issues. Mother’s services were terminated as to V.J., who
remained out of the home.
The December 2013 review report for the remaining three minors stated mother
was struggling with all three minors due to their serious behavioral problems. Mother
had been provided ongoing wrap around services, therapy, and VMRC services. The
Agency assessed that there continued to be complaints and problems because mother did
not know how to control the minors and did not follow up with clothing and grooming
issues. Mother was not utilizing the parent classes available to her through VMRC.
Despite extensive services, many issues still needed to be worked on and the Agency
recommended further family maintenance services. The court adopted the
recommendation.
3
The Agency filed a section 387 petition in March 2014 to remove J.J., age nine;
S.H., age eight; and S.J., age six, from mother’s custody due to ongoing care and neglect
concerns, alleging mother took care of her own needs but not those of the minors, left the
minors alone when she went out with her boyfriend, and did not use the parenting skills
she had been taught. There were also ongoing hygiene issues and the minors were out of
mother’s control. The court ordered the minors detained.
The disposition report filed in May 2014 reviewed mother’s difficulties in
parenting and discipline. The Agency continued to believe that mother needed additional
services but now suggested that a psychological evaluation could help determine whether
she could benefit from further services. Mother had visited several times since the
minors were removed. On at least one occasion mother became violent and yelled at the
minors, threatening them. The court sustained the section 387 petition as amended,
ordered reunification for J.J. and S.J. and terminated services as to S.H.
The October 2014 status review report for J.J. and S.J. stated mother continued to
have difficulty parenting the two minors. The report said services were not helping
mother at all and visits were chaotic. The psychological evaluation found that, although
mother was provided services that accounted for her cognitive and adaptive delays,
service providers reported that she had not seemed to make progress over the last two
years. The evaluation concluded that mother would not be able to benefit from services
within either a six- or 12-month time frame. The evaluation said that mother’s inability
to benefit from services stemmed from her cognitive limitations, limited motivation,
inconsistent retention of parenting skills, and limited capacity for managing relationship
conflict. Even with services, mother was likely to use maladaptive coping techniques and
it was unlikely she could ensure her own or her child’s physical and emotional safety.
The Agency recommended termination of services and setting a section 366.26 hearing
because the minors needed consistency and stability but mother was unpredictable,
seeking reunification one day and later claiming she did not know how she would be able
4
to take care of the minors. Mother’s ongoing variability affected her visits and the
minor’s reaction to the contact.
At the six-month review hearing held in November 2014, eight months after the
minors were removed from mother’s custody, the Agency changed the recommendation
for a permanent plan to long-term foster care. Mother testified she would like further
services. She acknowledged that there had been behavior problems at visits but she was
doing better keeping her temper and now brought games and toys to visits as her
parenting teacher had suggested. Mother’s Community Builders worker also testified,
explaining the support she was providing mother in parenting and homemaking skills.
Mother was receiving 30 hours a month of services to help her with the minors. The
provider testified mother’s home was currently in good condition, she was learning to
plan and prepare healthier meals and was working on issues of adequate clothing and
bedding for the minors.
Mother argued that she had consistently participated in services and had made
some progress in spite of the prognosis in the psychological evaluation. Distinguishing
other cases in which services were terminated before the statutory limit, mother
contended she should be given the full 12-month period for reunification. In ruling, the
court observed that this was not the usual case in that mother was getting VMRC
assistance before the minors were removed and the circumstances still required removal.
The court relied on the results of the psychological evaluation that there would be no
substantial change in mother’s ability to comprehend and address the issues in another six
months. The court adopted the amended findings and orders, finding by clear and
convincing evidence that mother’s progress toward alleviating or mitigating the causes
necessitating placement of the minors in foster care was minimal and that return of the
minors to mother’s custody would create a substantial risk of detriment to the safety,
protection, physical or emotional well-being of the minors.
5
DISCUSSION
I
Mother contends the juvenile court erred as a matter of law in terminating her
services at the six-month review hearing because the minors were over the age of three at
the time of removal and she was entitled to 12 months of services. She argues that the
statutory scheme contemplates a procedure which includes a petition pursuant to
section 388, subdivision (c) and a hearing on the petition in order to prematurely
terminate reunification services and that the court could not do so at the six-month review
hearing.
“[R]eunification services constitute a benefit; there is no constitutional
‘ “entitlement” ’ to those services.” (In re Aryanna C. (2005) 132 Cal.App.4th 1234,
1242 (Aryanna C.).) Aryanna C. held the juvenile court had the “authority, on a proper
record and after conducting a hearing, to exercise its discretion and terminate
reunification services at any time.” (Id. at p. 1237.) In Aryanna C. the juvenile court
terminated services for a minor under the age of three prior to the six-month hearing
where the father did little to comply with the service plan and was unlikely to do better in
the future. (Id. at pp. 1237-1238, 1241-1242.) The court found that the juvenile court
had “the discretion to terminate the reunification services of a parent at any time after it
has ordered them, depending on the circumstances presented.” (Id. at p. 1242) Where
the record shows that the likelihood of reunification is extremely low, continuing services
wastes scarce resources and delays permanency; thus, early termination of services is
consistent with the purposes of the dependency system. (Id. at p. 1242.)
Two years later, the court in In re Derrick S. (2007) 156 Cal.App.4th 436 (Derrick
S.) applied the reasoning of Aryanna C. to a case where the child was over the age of
three and the mother had done nothing in the first six months to comply with the case
plan. (Derrick S., at p. 448.) The court emphasized that the exercise of discretion to
terminate services prematurely would be infrequent and warranted only where the parent
6
has already received or been offered services, giving the court a basis for evaluating
whether further services would be utilized in the time remaining. (Id. at p. 450.) The
historical perspective of the case would assist the juvenile court in assessing the
likelihood of reunification. (Id. at p. 450.)
Following these two cases, the Legislature amended sections 361.5 and 388 to
provide a procedure for early termination of services which included a hearing and
criteria by which the court could exercise its discretion to terminate services. (In re
Katelynn Y. (2012) 209 Cal.App.4th 871, 878-879.) The statutes clarified what Derrick
S. surmised, i.e., that early termination of services would be infrequent.
Section 361.5, subdivision (a)(2) provides that any hearing to terminate services
prior to the 12-month or, for a child under three, the six-month hearing shall be made
pursuant to the requirements of section 388, subdivision (c). Section 388, subdivision
(c)(1) provides in relevant part: “Any party . . . may petition the court, prior to the [six-
month or 12-month review] hearing . . . to terminate court-ordered reunification services
provided under subdivision (a) of Section 361.5 only if . . . [¶] (B) The action or inaction
of the parent . . . creates a substantial likelihood that reunification will not occur,
including, but not limited to . . . the failure of the parent . . . to participate regularly and
make substantive progress in a court-ordered treatment plan.”
The current statutory scheme clearly requires the party seeking early termination
of reunification services to file a petition to secure such an order. As with all issues
arising under section 388, the court may order a hearing if “it appears that the best
interests of the child . . . may be promoted by the proposed” order. (§ 388, subd. (d).)
This new statutory procedure was intended to protect the parents’ due process rights of
notice and opportunity to be heard as suggested in Aryanna C., supra, 132 Cal.App.4th at
page 1237. No petition pursuant to section 388, subdivision (c) was filed in this case.
7
However, failure to follow a statutory procedure will not result in reversal unless
the procedure which is used fails to provide the same constitutional protections. (Cal.
Const., art VI, § 13.) The procedure used in this case did afford the parties due process.
While we agree that a section 388, subdivision (c) petition would have framed the
issues more clearly, mother did have notice from the six-month review report that the
Agency intended to seek early termination of reunification services and that the order
would promote the best interests of the minors. These issues were tendered at the review
hearing, giving mother an opportunity to be heard in opposition and mother did testify on
the matter. The court did make findings by clear and convincing evidence that mother’s
progress in services was minimal and that returning the minors to her care would be
detrimental to them. While the findings were not in the statutory language, mother did
not object to the precise wording of the court’s findings and may not now complain about
the variance. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S.
(2000) 85 Cal.App.4th 494, 501-502.) Any error in failing to follow the section 388,
subdivision (c) procedure was harmless.
II
Mother further argues that the court erred in terminating her services because there
was a substantial probability of return of the minors by the 12-month review hearing.3
We disagree.
3 Mother’s argument relies, in part, on the portion of section 366.21, subdivision (e)(3)
relating to minors under the age of three, which states that if “the court finds there is a
substantial probability that the child, who was under three years of age on the date of
initial removal . . . , may be returned to his or her parent . . . within six months . . . , the
court shall continue the case to the 12-month permanency hearing.” None of the minors
in this case were under the age of three at the initial removal in 2011. The “substantial
probability” language does not apply to minors who are three or older at the time of
initial removal due to the presumption in section 361.5, subdivision (a) that the older
minors will be afforded up to 12 months of services. The only language applicable to the
8
Section 366.21, subdivision (e)(1), which governs the six-month review hearing,
states in relevant part: “[T]he court shall order the return of the child to the physical
custody of his or her parent . . . unless the court finds, by a preponderance of the
evidence, that the return of the child to his or her parent . . . would create a substantial
risk of detriment to the safety, protection, or physical or emotional well-being of the
child. . . . The failure of the parent . . . to participate regularly and make substantive
progress in court-ordered treatment programs shall be prima facie evidence that return
would be detrimental.” (Italics added.)
By the time the six-month review hearing occurred, only four months remained
before the 12-month review hearing would be scheduled. The evidence of mother’s
ability to have the minors returned in that time was in conflict. Mother testified visits
were going better and she did not blow up as easily. The Community Builders worker
said mother’s home was currently in good condition, mother was working on issues of
adequate clothing and bedding, and mother was learning meal planning. In contrast, the
evidence over the last two years when mother was receiving continuous family
maintenance services showed she made little or no progress in addressing the issues of
inadequate parenting and neglect. Mother’s psychological evaluation noted that service
providers reported mother was making no progress and concluded mother was unable to
benefit from services within six months due to her cognitive limitations, limited
motivation, inconsistent retention of parenting skills, and limited capacity for managing
relationship conflict.
In finding mother had made minimal progress, the court resolved the conflicting
evidence adversely to mother while recognizing the efforts she had made. (In re Jason L.
(1990) 222 Cal.App.3d 1206, 1214.) The court made the findings by clear and
return or continuation in foster care for the older minors is the detriment of return
language quoted above.
9
convincing evidence that mother had not made substantial progress and that return of the
minors would be detrimental. These findings also support the ruling that services should
not be extended to 12 months. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
DISPOSITION
The orders of the juvenile court are affirmed.
/s/
Blease, J.
We concur:
/s/
Raye, P. J.
/s/
Duarte, J.
10
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193 F.2d 889
ZAMLOCHv.UNITED STATES.
No. 12753.
United States Court of Appeals Ninth Circuit.
January 14, 1952.
Rehearing Denied February 7, 1952.
Leo R. Friedman, San Francisco, Cal., for appellant.
Chauncey Tramutolo, U. S. Atty., Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before HEALY, ORR and POPE, Circuit Judges.
ORR, Circuit Judge.
1
In April 1949 one Marie Basom was charged with having concealed and facilitated the concealment of a certain lot of heroin on April 15, 1949. After trial she was found guilty. Appellant Zamloch represented her as attorney at the trial.
2
Subsequent to the trial and conviction of Marie Basom, appellant, together with one Steffen and one Benevedes, was charged in the first count of an indictment of two counts, with the crime of conspiracy to defraud the United States of its lawful powers in the due administration of justice by procuring the said Marie Basom to testify falsely, by procuring her to refrain from further testifying, and conspiring to conceal and suppress from officers of the United States information that Steffen and Benevedes were principals, with Marie Basom, in the ownership, control and concealment of the narcotics for the concealment of which Marie Basom was previously convicted; and was charged with the same defendants, in the second count of the indictment, with having given Marie Basom money, and a promise and agreement therefor, upon an agreement and understanding that her testimony was in fact and should be influenced to the end that she, as a witness in her case, should not disclose or testify that Hugh Basom, Steffen and Benevedes were principals in her case. Steffen and Benevedes plead guilty. Marie Basom and Hugh Basom, while alleged to be members of the conspiracy, were not indicted.
3
Appellant's specification of errors relates, in most part, to the admission of evidence and instructions given the jury.
4
I. During the course of the trial the Court admitted in evidence a wire recording of a conversation held on April 25, 1950, between Hugh Basom and Albert Benevedes. Its introduction was objected to upon the ground that the proffered evidence was not the statements of alleged conspirators in furtherance of the conspiracy but was merely a narrative of past events.
5
The wire recording purports to detail a conversation between coconspirators Hugh Basom and Benevedes. It was taken pursuant to a plan agreed upon by Colonel George H. White, then District Supervisor of the Bureau of Narcotics, and Hugh Basom.
6
The purpose of arranging to get the wire recording, as stated by White, was "that the whole history of the case would be reviewed during the conversation from the lips of Benevedes" and as stated by Hugh Basom, its purpose "was to get Benevedes to give the full narrative of all that had taken place in the past." Appellant takes some comfort from these statements of purpose as sustaining his contention that the conversation is but a narrative of past events. The conversation must be judged on what was said and in it we find very definite statements of a determination to further the conspiracy.
7
Marie Basom, at her trial, testified that a man named Carl had given her the narcotics found in her possession. The facts were that she had received the narcotics from Hugh Basom who in turn had received them from Steffen with the aid and connivance of Benevedes. The conspiracy charged was the endeavor of appellant, Steffen, Benevedes, and Hugh Basom, to seal the lips of Marie Basom so that she would not disclose the participation of the main culprits, Steffen and Benevedes. Steffen had paid $4,500 for this purpose. The money was handled by Zamloch, who retained $500 as a commission. It was essential to the interests of the conspirators that Marie Basom remain silent at least until the statute of limitations ran. The reasons for preventing Marie Basom from talking were as strong and compelling at the time the conversation was had between Basom and Benevedes as it was the day it was entered into. In the course of the conversation Benevedes exhibited changing moods and attitudes in relation to the alleged threat conveyed to him by Hugh Basom of Marie Basom to talk. The plan agreed upon by the narcotics agents and Hugh Basom was for Basom to represent to Benevedes that a woman (fictitious) had conveyed a message from Marie Basom to Hugh Basom to the effect that she, Marie Basom, was threatening to go to the United States attorney and tell all. At first, Benevedes used braggadocio; next, he pictured the extremes to which Steffen would go to dispose of an informer, relating that one informer was no longer around and, in direct terms, he, Benevedes, threatened that if Marie Basom, by carrying information to the officers, caused him to be imprisoned he would kill the s.o.b. himself. Rather a forceful way and one, which he no doubt considered an effective way, to cause Marie Basom to continue to remain silent. True, some of the recorded conversation was concerned with past acts but it seems such a result was inevitable because the conspirators would necessarily discuss the conspiracy in stating terms which would most probably insure its effective continuance. While we entertain no doubt as to the correctness of the trial court's ruling in admitting the recording yet, if we be wrong in our conclusion, we cannot subscribe to the dire effects on the minds of the jury which appellant ascribes to it. Surely it is disgusting and revolting for a jury to be required to listen to language such as was used, but the jury doubtless formed, from observations they were in a position to make, an opinion of the character and depravity of the individuals concerned in the dope racket and that it, the jury, would not expect from them too much in the way of refinement of speech. Also, the jury would know from its observation, that Zamloch was incapable of the use of such disgusting language and to say they would be so inflamed by the language used by others as to be unable to fairly weigh the evidence as to him seems rather overdrawn. The admission in evidence of the wire recording was not error.
8
II. Complaint is made that the Court erred in instructing the jury as to the evidentiary value of the wire recording. The exception taken in the trial court followed the contention that the recording was confined to statements of past events. We have rejected that contention in our treatment of the question of the admissibility of the evidence. The admissibility was a question of law for the Court. It correctly ruled that the evidence was admissible. The jury was then permitted to consider it in connection with all the evidence in the case. That the conversation contained statements in furtherance of the conspiracy had been determined by the Court; that function was thus withdrawn from the jury: its task was to determine the weight and credibility. United States v. Nardone, 2 Cir., 127 F.2d 521; Wigmore, § 2550. Further, no request was made by appellant to have included in the instruction the matter now urged as essential and, under Rule 30 of the Rules of Criminal Procedure, 18 U.S.C.A. in order to have considered an assignment of error in the failure to give a specific instruction a request that it be given must first be made to the Court.
9
III. Appellant next assigns as error the admission into evidence of a certain mortgage from Paul and Ida Steffen to James Martin MacInnis.
10
The theory upon which the mortgage was admitted, insofar as we are able to determine from the remarks of the trial court, was that the mortgage was relevant to the extent that it shed some light upon the relations of Zamloch, as a member of a law firm, and its (the firm's) relations with their client Steffen. The evidence then before the trial court seems to have convinced it that Zamloch could reasonably be charged with knowledge of the execution of the mortgage. The size of the mortgage was evidence of how valuable the client Steffen was to the firm. Zamloch undoubtedly would be anxious that the firm secure a client able to pay such a large fee. Hence, with that thought in mind, he would have been all the more willing to further the conspiracy to protect Steffen. The $2,000 fee for defending Marie Basom he had earned. A motive must have existed for Zamloch to enter into the hazardous business of obstructing justice. The gaining and retention of a client capable of paying large fees could have been the inducement. The mortgage was relevant in this respect. Its weight was for the jury. The matter of the admission of evidence rests in the sound discretion of the trial court and we are unable to say that it abused its discretion in admitting the mortgage; further, we see no prejudice to appellant resulting from such admission.
11
IV. The admission into evidence of a mortgage from Paul and Ida Steffen to Richard M. Siegel, an associate of the firm of Hallinan, MacInnis and Zamloch, is assigned as error.
12
What we have said in relation to the admission of the mortgage from Steffen to MacInnis has equal application here. Again, the district court concluded that Siegel's connection with the firm was such as to bring notice of this mortgage to Zamloch. This evidence would have value and relevancy as shedding light upon Zamloch's motive in entering the conspiracy, an additional circumstance indicating that Steffen was the sort of client worth going to great lengths to protect.
13
V. Appellant urges that the Court erred in admitting in evidence the portion of the testimony of Hugh Basom relating to a conversation between Basom and Mr. and Mrs. Benevedes in August of 1949.
14
This proffered evidence was objected to on the ground that it called for a narrative of past events. The conversation was an attempt on the part of Benevedes to bring Hugh Basom, a co-conspirator, down to date on the effectiveness of the conspiracy. He, Hugh Basom, had been absent for some time at sea. Benevedes knew Hugh had influence with Marie Basom. She was threatening to get out of hand. He was requested to see Zamloch who informed him of the $4,000 which had been paid to purchase Marie's silence and arrangements were made for its disposition. There is no question in our minds but that the conversations had were for the purpose of insuring the continuance of the conspiracy to induce Marie Basom to remain silent. It was designed to move a co-conspirator, absent for some time, to resume active cooperation as such.
15
VI. It is urged that the Court erred in instructing the jury as to the use that could be made of the mortgages from the Steffens to MacInnis and Siegel.
16
This instruction in essence merely stated to the jury their right and duty to give the mortgage evidence such weight as they deemed proper. That such is the right and duty of the jury is not disputed.
17
VII. It is contended that the jury's verdict of guilty was coerced by a supplementary instruction given by the trial court.
18
This assignment was made at a time when the record failed to state the entire contents of the instruction complained of. The record has since been corrected and discloses that the instruction given conforms to one approved by the United States Supreme Court in the case of Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528.
19
VIII. Appellant maintains that the evidence was insufficient as a matter of law to establish the charge of conspiracy, and asserts that the conspiracy, and defendant's connection therewith, must be established by proof aliunde the acts and declarations of a co-conspirator and cites Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680, in support thereof. Appellant urges that neither the conspiracy charged nor a defendant's connection therewith can be established by testimony of the acts and declarations of a co-conspirator done and said out of the defendant's presence. Even so, that is not this case. We give much more significance to the testimony of witnesses Marie Basom, Hugh Basom, appellant Zamloch, and Werlhof than does appellant. We find the evidence amply sufficient to support the verdict. For example: As has been stated, Marie Basom told the officers that she had received the key to the locker in which the narcotics were stored from a man named Carl, the fact of the matter being, as she later testified, that she received the key from Hugh Basom who, in turn, had received it from Steffen. Marie Basom further testified that prior to her trial Zamloch had knowledge as to the true facts but that he, Zamloch, advised her to stick to the false story when testifying in court. After Marie Basom was convicted she testified that Zamloch visited her and at that time informed her that he had $4,000 for "my being convicted." And, "I didn't know what to do with it. I couldn't take $4,000 to Alderson with me, so he said he would hold it for me for ten per cent;" that Zamloch retained possession of the money and later sent her a cashier's check for $3,600.
20
Zamloch testified that he received the money from Benevedes; that he, Zamloch, had been informed by Hugh Basom that the money had been paid Marie Basom for taking the "rap", and knowing this, he, Zamloch, had sent the $3,600 to Marie Basom.
21
Hugh Basom testified that in a conversation between him and Zamloch, he, Basom, threatened to tell all the facts to the officers and that Zamloch warned him that to do so would result in the murder of Hugh and Marie.
22
Witness Werlhof testified that Zamloch told him that the "idiot Benevedes" had "opened up" and convicted himself which made it look very bad for him, Zamloch, and that it did look bad for him.
23
IX. It is said that the Court erred in instructing the jury that the case of United States against Marie Basom was still pending.
24
We are unable to attach any significance to this assignment. Appellant argues that the case against Marie Basom had terminated and that much testimony was given by Hugh Basom, Marie Basom, Siegel, Werlhof, and the narcotics agents as to conversations and events taking place long after the Marie Basom case had ceased to be pending. Appellant has urged objections to the admissibility of evidence. The validity of the objections in some respects was concerned with the pendency of the action against Marie Basom. We have decided these questions. The instruction complained of is said to be erroneous only insofar as it stated that the action against Marie Basom was still pending at the time of trial. No prejudicial effect insofar as we can determine has resulted. None has been pointed out.
25
Appellant argues that the indictment failed to state an offense under 18 U.S.C.A. § 1503, the obstruction of justice statute, because a violation of § 1503 can occur only when there has been an interference with the operation of the functions of federal courts. Subdivision (C) of the indictment, which is the part of the indictment under attack, alleges in part that the defendants conspired to obstruct justice "by corruptly endeavoring to influence, obstruct and impede the due administration of justice in that the said defendants and said co-conspirators well knew and were informed that after the return of the said verdict of guilty in the said case the United States attorney for the Northern District of California and his assistants and the Federal Bureau of Narcotics and its duly authorized agents did continue to investigate and attempt to prosecute the offenses involved in said case to the end and with the purpose that an indictment he brought against those persons, in addition to the said Marie Basom, whoever they might be, known to have owned, controlled and concealed the narcotics which were the subject of the said case, in that the said defendants and co-conspirators having knowledge of all of the facts hereinabove alleged did endeavor to corruptly influence, obstruct and impede the due administration of justice by corruptly and by threat and by force concealing the fact and suppressing the knowledge that the defendants Paul Steffen and Albert Benevedes were in truth and in fact principals with the said Marie Basom in the ownership and control and concealment of the heroin which was the subject of said case hereinabove referred to."
26
Section 1503, in express terms, applies to anyone who "* * * corruptly * * * endeavors to influence, obstruct, or impede, the due administration of justice". Surely a conspiracy to induce a person to withhold information from officers charged with the administration of the law is impeding and obstructing the administration of justice, and, if done for the payment of a price, it is corruptly done. We find no merit in this contention.
27
This was rather a long trial resulting in a record of substantial length. An unbiased reading of this record leaves us with the conviction that this appellant was afforded a fair and impartial trial and that the verdict of guilty finds ample support in the evidence and applicable law.
28
It appeals to us as being a case where the provisions of Rule 52(a) of the Rules of Criminal Procedure have significant application. Painstaking counsel, after a careful examination of the record, has been able to point to some claimed error, some defect, and some irregularity or variance occurring during the trial. We are convinced that such claimed error, defect, irregularity or variance, as may exist, did not affect the substantial rights of appellant, and that "guilt has been found by a jury according to the procedure and standards appropriate for * * * trials in the federal courts." Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 406, 90 L.Ed. 350.
29
Judgment affirmed.
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105 So.2d 901 (1958)
Violet C. WILLIAMS, Appellant,
v.
J.W. NOEL and Isabella G. Noel, Appellees.
No. 58-87.
District Court of Appeal of Florida. Third District.
October 2, 1958.
Rehearing Denied November 14, 1958.
*902 Sturrup & Gautier, Miami, for appellant.
Jepeway & Dauber, Miami, for appellees.
CARROLL, CHAS., Chief Judge.
The appellees J.W. Noel and his wife Isabella G. Noel filed a suit in the circuit court against the appellant Violet C. Williams, for specific performance of a contract, for sale of certain real estate, under which they were the sellers and appellant Williams was the purchaser. The contract submitted with the complaint was signed by the purchaser Williams and by J.W. Noel, but not by Isabella G. Noel. The complaint alleged Noel acted as agent of the owner, his wife Isabella. The allegation of agency was denied in the answer.
The plaintiffs (sellers) moved for summary final decree. Their motion was heard on the pleadings only, consisting of the complaint with its three exhibits, the answer and a counterclaim for the return of the deposit and the answer to the counterclaim. The exhibits attached to the complaint were a copy of the contract and an exchange of letters dealing with a question as to the title, in one of which the husband of the owner had offered to perform and had demanded performance by the purchaser. No affidavits or other evidentiary matter were presented, except some evidence as to attorney fees.
The chancellor entered a summary decree for specific performance against the defendant purchaser, who has appealed from that decree.
The appellant argues two points: that the pleadings raised a genuine issue relating to the husband's alleged agency for his wife; and, that the trial court could not *903 properly find that plaintiffs were entitled to a summary decree for specific performance as a matter of law.
The rule relating to summary judgments not only provides that the moving party must show there is no genuine issue as to any material fact, but in addition must show that he is entitled to a summary judgment as a matter of law. Rule 1.36(c), 1954 Fla.Rules of Civ.Proc., 30 F.S.A.; Farrey v. Bettendorf, Fla. 1957, 96 So.2d 889, 892. Here the complaint showed that Isabella Noel was the owner of the property involved, and that she did not sign the contract. A married woman's contract for sale of her property is not enforceable against her unless signed by her before two subscribing witnesses. See Berlin v. Jacobs, 156 Fla. 773, 24 So.2d 717; Dixon v. Clayton, Fla. 1950, 44 So.2d 76; Zimmerman v. Diedrich, Fla. 1957, 97 So.2d 120; and Lindgren v. Van Fleet, Fla.App. 1958, 101 So.2d 155.
Appellant argued that the unenforceability against the seller Isabella Noel precluded the granting of specific performance against the purchaser. That argument, in effect, is that lack of mutuality of remedy prevents specific performance. We hold that in the instant case the sellers were entitled to the benefit of an exception to the rule contended for by the appellant. The owner Isabella Noel offered to perform by joining as plaintiff in the suit for specific performance. See Pinckney v. Morton, 5 Cir., 1929, 30 F.2d 885, 886, and cases cited there.
Equity deems the married woman's tender of performance to be equivalent to performance. Schmidt v. Kidden, 100 Fla. 1684, 132 So. 194, 197.
The action of the married woman, in joining with her husband in the suit for specific performance of the contract, showed a ratification of his alleged agency for her, and amounted to an offer of performance by her creating mutuality of remedy at the time of the filing of the suit. See Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729, 732, where the Supreme Court said:
"So far as the principle of mutuality is involved as a prerequisite to the maintenance of the suit, it is mutuality of remedy in equity at the time of the filing of the bill that is required and not a mutuality in the terms of the contract when the contract was made."
On first reading, it would appear that the holding in Gautier v. Bradway, 87 Fla. 193, 99 So. 879, was contrary to our decision in this case. However, as pointed out by the Supreme Court in the Schmidt case, the Gautier case is distinguishable because "the complainant had not completely performed the contract, nor was it made to appear that she had tendered performance." [100 Fla. 1684, 132 So. 197.]
Furthermore, the protection given her as a married woman, by making such contracts unenforceable against her when not signed in a certain manner, was intended to operate "as a shield of defense and not as a sword of offense." Edgar v. Bacon, 97 Fla. 679, 122 So. 107, 110.
Appellant's argument that the Statute of Frauds, F.S.A. § 725.01 was not complied with was without merit, because the party against whom the contract was sought to be enforced signed it. Cf. United Hardware-Furniture Co. v. Blue, 59 Fla. 419, 52 So. 364, 366, 35 L.R.A.,N.S., 1038. See also, Corbin, Contracts, Vol. 5, § 1192, p. 840; Williston, Contracts, Rev. Ed., Vol. V, § 1437, p. 4017; 49 Am.Jur., Statute of Frauds, § 384, p. 686.
Returning now to the first question by which the appellant contended that the pleadings disclosed a triable issue relating to the husband's alleged agency for the seller wife, in connection with the contract he made for sale of her land, we conclude, as did the able chancellor, that the issue raised by defendant's denial of such agency was not a genuine issue within the rule relating to summary judgment. As an issue to be tried, its only purpose would be to establish the existence or otherwise of the *904 alleged agency. But as we have stated above, by joining with her husband in bringing suit for specific performance, the seller Isabella Noel supplied ratification of her husband's acts, and thus adopted the contract for her own benefit. See 2 Am. Jur., Agency, §§ 212-213, pp. 169-171. Nor was that agency issue material in consideration of the question raised as to the Statute of Frauds, for the reason we set out above in dealing with the contention relating to that statute.
The trial court ruled without error in finding an absence of any genuine issues and that plaintiffs were entitled to a decree for specific performance as a matter of law, and the decree appealed from should be and hereby is affirmed.
Affirmed.
HORTON and PEARSON, JJ., concur.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16–743V
Filed: July 14, 2017
UNPUBLISHED
HELENE MELANCON,
Special Processing Unit (SPU);
Petitioner, Attorneys’ Fees and Costs
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On June 23, 2016, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine
Act”). Petitioner alleged that she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) caused by her influenza vaccine administered on October 10,
2013. On March 17, 2017, the undersigned issued a decision awarding compensation
to petitioner based on respondent’s proffer. (ECF No. 32.)
On May 12, 2017, petitioner filed an application for attorneys’ fees and costs.
(ECF No. 36). Thereafter, on July 6, 2017, petitioner filed an amended application for
attorneys’ fees and costs. (ECF No. 39). Petitioner requests attorneys’ fees in the
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
amount of $15,401.50 and attorneys’ costs in the amount of $1,209.21. (Id. at 1.) In
compliance with General Order #9, petitioner filed a signed statement indicating that
petitioner incurred no out-of-pocket expenses. Thus, the total amount requested is
$16,610.71.
On May 23, 2017, respondent filed a response to petitioner’s initial application.
(ECF No. 38.) Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.3
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no cause to reduce the requested hours or rates.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS petitioner’s amended application for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $16,610.714 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel,
Ronald Craig Homer.
The clerk of the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
On 7/10/2017, respondent’s counsel indicated that respondent did not intend to file a response to
petitioner's amended application for fees, but maintains the position set forth in his response to
petitioner's initial application for fees. Informal Communicated dated 7/14/2017.
4
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).
5
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
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895 N.E.2d 139 (2008)
ROSS
v.
STATE.
No. 49A05-0803-CR-134.
Court of Appeals of Indiana.
October 17, 2008.
FRIEDLANDER, J.
Disposition of case by unpublished memorandum decision. Affirmed.
DARDEN, J. Concurs.
BARNES, J. Concurs.
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945 So.2d 1111 (2005)
STATE
v.
DWIGHT LEE YARNELL
No. CR-04-2286
Court of Criminal Appeals of Alabama
August 19, 2005.
Decision without published opinion. Dismissed.
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321 F.2d 224
63-2 USTC P 9657
UNITED STATES of America, Acting by and through the INTERNALREVENUE SERVICE, Appellant,v.William R. BRADLEY, Trustee, Appellee.
No. 20023.
United States Court of Appeals Fifth Circuit.
Aug. 8, 1963.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D.C., H. M. Ray, U.S Atty., Oxford, Miss., Frederick E. Youngman, Joseph Kovner, Attys., Dept. of Justice, Washington, D.C., for appellant.
John E. Stone, Jackson, Miss., Leon L. Porter, Jr., Clarksdale, Miss., for appellee.
Before PHILLIPS,* WISDOM and GEWIN, Circuit Judges.
GEWIN, Circuit Judge.
1
This is an appeal by the United States from an order of the District Court for the Northern District of Mississippi affirming the opinion of the Referee in Bankruptcy, wherein he found that certain state and county tax liens, having arisen prior in time to certain United States tax liens, are superior to the latter and are to be paid out of the limited assets held by the trustee before the latter.
2
The United States argues that, although the local liens did arise first in time, the United States liens take first claim to the assets because the United States liens became perfected choate liens as of the day of assessment, while the local liens require attachment or levy before becoming choate, and only choate liens which were first in time may take precedence over such perfected United States liens. The United States further argues that the question of whether a lien is choate depends not on state law, but is always a federal question.
3
At the outset, the Federal Priority Statute, 31 U.S.C.A. 1911 must be put aside. Numerous cases have held that this statute does not apply in bankruptcy proceedings, and that it yields to 67 of the Bankruptcy Act. See In re Taylorcraft Aviation Corp., 168 F.2d 808 (6 Cir., 1948); In re Knox-Powell-Stockton Co., 100 F.2d 979 (9 Cir., 1939); Reese, Inc. v. U.S., ex rel. Collector of Internal Revenue, 75 F.2d 9 (5 Cir., 1935); Bennett-Ireland, Inc. v. American Alum. Products, 59 Wash.2d 670, 369 P.2d 957 (1962); United States v. Sampsell, 153 F.2d 731 (9 Cir., 1946). See also Collier on Bankruptcy, 14th Ed. 67.24 at p. 264:
4
'* * * the Supreme Court precedents subordinating liens to the federal priority under Rev.Stat. Sec. 3466 have no application in ordinary bankruptcy proceedings initiated under Sec. 59. These precedents applied the section when the debtor's estates involved were in the hands of nonbankruptcy liquidators, and it accords with the manifest intent of Congress to treat the scheme of distribution it provided in sections 64 and 67b and c as exclusive of the incompatible order of priority provided for non-bankruptcy liquidations in Sec. 3466.'
We look then to the Bankruptcy Act:
Sect. 67, sub. b:
5
'* * * Statutory liens for taxes and debts owing to the United States or to any State or any subdivision thereof, created or recognized by the laws of the United States or of any State may be valid against the trustee, even though arising or perfected while the debtor is insolvent * * *.'
Sect. 64, sub. a:
6
'The debts to have priority, in advance of the payment of dividends to creditors, * * * shall be (1) the actual and necessary costs * * *; (2) wages * * * (3) (costs of contesting discharge); (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof.'
7
It is clear that neither of these sections answers the question before us, i.e., whether United States Tax liens are superior to state tax liens which arose prior to the United States liens. We therefore look for guidance to the statutes creating the liens. The United States liens are created by the Internal Revenue Code of 1954.
Sect. 6321:
8
'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (* * *) shall be a lien in favor of the United States upon all property and rights to property, whether, real or personal, belonging to such person.'
Sect. 6322:
9
'Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made * * *.'
Sect. 6323:
10
'* * * the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed * * *.'
11
The state liens are created by the following state statutes, Mississippi Code of 1942 (Recomp.):
Sect. 9744:
12
'Taxes, state, county and municipal, assessed upon lands or personal property, * * * shall be a lien upon and bind the property assessed, * * *.'
Sect. 10119:
13
'* * * the tax imposed by this act (the Revenue Act of 1934 imposing 'sales tax') * * * shall constitute a debt due the State of Mississippi from the time the tax is due until it is paid, and shall be a lien upon the property or rights to property of any person subject to the provisions of this act.'
14
It will be seen that both the United States and the State statutes are clear and definite on the question of when the liens arise. However, neither provides any guidance as to priority. The United States concedes that the State liens arose first, but argues that since the State did no attach the bankrupt's property or levy on it prior to bankruptcy, he State's liens are imperfect, and are in fact nothing more than inchoate general liens. It is difficult to understand how the State liens are inchoate, because there has been no attachment or levy, while the United States liens upon which there has likewise been no attachment or levy, are choate. The United States cites several cases as authority for its contention that before the lien can be perfected and made specific, the following three conditions must exist: (1) the identity of the lienor must be certain; (2) the amount of the lien must be certain; and (3) the property to which the lien attaches must be made definite and certain. The United States concedes that the first 2 conditions existed, but contends that the third one did not at the time its liens arose; and therefore, the State liens are inchoate. If the first 2 conditions are met, and the statute attaches the lien to all of the property, real and personal, of the debtor, or to 'the property assessed', we conclude that the line is not thereby necessarily rendered 'inchoate'; it is merely rendered 'general' rather than specific. Regardless of such considerations, we agree with the holding in United States v. Sampsell, 153 F.2d 731 (9 Cir., 1946):
15
'There is nothing in the Bankruptcy Act or in the Internal Revenue Code * * * directly providing that perfected liens shall have priority over prior inchoate liens which is the claim of the government. We are of the opinion that the government can get no support of any kind from the statutes in aid of its proposition.'
16
The Ninth Circuit held in Sampsell that the State liens being first in time, though inchoate as to the amount, were first in order of payment out of the limited assets.
17
The Eighth Circuit in Adams v. O'Malley, 182 F.2d 925 (1950) followed Sampsell:
18
'The United States asserts that it should be given priority because its liens are specific and perfected, while those of the County are general and inchoate, isnce the County had not levied upon the property of the bankrupt prior to bankruptcy. It is unnecessary in this case to determine whether that would be of any importance, since, in our opinion, the statutory liens of the County were no more general and inchoate than were the liens of the United States; and, if a seizure was a prerequisite to the perfection of the County's liens, they were perfected after bankruptcy by the filing of notice with the court as permitted by 67, sub. b, of the Bankruptcy Act, 107, sub. b, of Title 11 U.S.C.A. 'Our conclusion is that R.S. 3466, 191 of Title 31 U.S.C.A., is not, expressly or inferentially, applicable to proceedings in bankruptcy, and that the tax liens of the County were on a partity with those of the United States. * * *'
19
The opinion of the Referee in this case is a scholarly, well written discourse on the subject under consideration. The District Court carefully considered the Referee's opinion and agreed with it. We agree with both opinions. It is our conclusion that the Referee properly applied the doctrine of 'first in time, first in right'. United States v. City of New Britain, Conn., 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1947); Rankin v. Scott, 12 Wheat. 179, 6 L.Ed. 592.
20
The judgment is affirmed.
*
Of the Tenth Circuit, sitting by designation
1
'Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.'
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43 F.3d 1472
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.H.S. HUMPHREYS CO., INC., Plaintiff-Appellant,v.BORDEN, INC., Defendant-Appellee.
No. 93-5463.
United States Court of Appeals, Sixth Circuit.
Dec. 12, 1994.
On Appeal from the United States District Court for the Western District of Tennessee, No. 91-02410; Odell Horton, Judge.
W.D.Tenn., 822 F.Supp. 1279.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
Before: NELSON, SUHRHEINRICH, and BATCHELDER, Circuit Judges.
PER CURIAM.
1
Appellant H.S. Humphreys Co., Inc. appeals the district court's order granting summary judgment to Appellee Borden, Inc. on Humphreys's claims for breach of contract and fraud. Humphreys appeals as well the district court's orders denying Humphreys's procedural motions filed after the initial grant of summary judgment.1 For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
2
* From 1977 through 1991, Humphreys was a broker of foods manufactured by Borden. The contract between Borden and Humphreys contained an exclusivity clause:
3
A Broker in whose territory a customer's buying office is located shall have sole and exclusive rights to solicit orders for [p]roducts unless otherwise provided by Borden in writing. A Broker in whose [t]erritory a shipping address is located shall have the first option to provide retail services, unless otherwise mutually agreed upon by Borden and Broker in writing.
4
Under the contract, Humphreys was entitled to be paid a commission on all sales of Borden product which Humphreys made directly to customers within the territory and on all product within Humphreys's territory on which Humphreys performed retail services, regardless of whether Humphreys had made the direct sale. Claiming that Borden was violating the exclusivity clause, Humphreys terminated the contract with Borden and brought this action alleging fraud, breach of the contract's express terms, and breach of the contract's implied duty of good faith and fair dealing.
5
The essence of Humphreys's contract claim, which is contained in one count of the complaint but includes allegations of both express breach and breach of good faith, is that Borden breached the brokerage contract's exclusivity clause by permitting, encouraging, or failing to prevent a phenomenon called diversion, with the result that Humphreys was in fact not the exclusive source of Borden's products within Humphreys's territory. Diversion involves a buyer's purchase of a product in one region at an advantageous price and sale of the product at a higher price in another region. Diversion disadvantages authorized brokers because they must sell the product at the price dictated by the manufacturer, whereas the diverter will sell the product at any price which is above the diverter's purchase price but below the price offered by the authorized broker.
6
The fraud claim alleges that prior to entering into the brokerage contract, Borden failed to disclose to Humphreys that Borden operated a dual sales system resulting from Borden's participation in a national brokerage program as well as a clandestine program for selling its product through diverters. Further, Humphreys claims that Borden fraudulently misrepresented to Humphreys that it would attempt to control and prevent the diversion of product into Humphreys's territory, that Humphreys relied on this misrepresentation and continued in the contract rather than terminating it, and that Borden intended that Humphreys rely on this misrepresentation.
7
Humphreys claims two kinds of loss as a result of Borden's alleged breach of contract and fraud. Humphreys claims first that, due to diversion, it lost commissions on sales of Borden's product within Humphreys's territory, and second, that it was required by Borden to expend money to provide retail services on product within the territory which had actually been sold by diverters and on which Borden failed to pay Humphreys any commission.
8
The district court held that Humphreys had failed to demonstrate that there remains for trial any genuine issue of material fact as to the breach of contract claim or either of the claims of fraud and that, applying the law of Tennessee to the undisputed facts, Borden was entitled to summary judgment on all claims. We review a district court's grant of summary judgment de novo. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880 (1988). We also give de novo review to a district court's determination of state law. Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).
II
9
We conclude that the district court did not err in holding that Humphreys failed to establish a genuine issue of material fact as to Borden's alleged misrepresentations, and that the facts, when viewed in the light most favorable to Humphreys, do not support either of Humphreys's fraud claims under Tennessee law. We therefore affirm the judgment for Borden on the fraud claims.
10
We review for abuse of discretion Humphreys's claims that the district court erred (1) in denying Humphreys's motion to strike portions of Borden's summary judgment brief containing assertions of fact based on inadmissible evidence and (2) in granting summary judgment without permitting Humphreys additional time to complete discovery. We find that the district court did not abuse its discretion and we affirm.
III
11
The district court held that Borden was entitled to judgment on Humphreys's contract claim. First, the court held that the record could not support a claim of express breach of contract because Humphreys failed to provide any evidence that Borden made any direct sales to unauthorized brokers in competition with Humphreys. Further, the district court found Borden entitled to judgment on Humphreys's claim of breach of the duty of good faith and fair dealing with respect to the exclusivity clause because Humphreys had failed to establish that any genuine issue of fact remained for trial on that claim. The district court held that whether Borden had breached the duty of good faith and fair dealing with respect to the exclusivity clause was to be determined on the basis of the reasonableness of Borden's business decisions, citing Davidson v. Cincinnati Milacron Inc., No. 91-3606, 1992 WL 133062 (6th Cir. June 16, 1992), an unpublished Sixth Circuit opinion. The court concluded that Borden's business decisions could not be found to be unreasonable.
12
Addressing the good faith claim first, we think that the standard used by the district court to determine whether to grant summary judgment on that claim was improper. Cincinnati Milacron is inapposite, because there the court dealt with the good faith issue only as to a claim brought under the Age Discrimination in Employment Act, and summarily dismissed, without addressing the merits, the plaintiff's pendent state law claim for breach of the implied duty of good faith and fair dealing, which would have been determined in any event under Ohio rather than Tennessee law. Id. at * 1, 4.
13
The district court did, however, properly recognize that in every Tennessee contract, there is an implied duty of good faith and fair dealing in the performance and enforcement of the contract. Davidson & Jones Dev. Co. v. Elmore Dev. Co., Inc., 921 F.2d 1343, 1350 (6th Cir.1991); Oak Ridge Precision Industries, Inc. v. First Tennessee Bank Nat'l Ass'n, 835 S.W.2d 25, 29 (Tenn.Ct.App.1992). What satisfies this duty depends on the facts of each case. TSC Industries, Inc. v. Tomlin, 743 S.W.2d 169, 173 (Tenn.Ct.App.1987). In defining the obligation of good faith, the court must fairly and reasonably construe the language of the contract to arrive at the intent of the parties. See, e.g., Covington v. Robinson, 723 S.W.2d 643, 645-646 (Tenn.Ct.App.1986).
14
Humphreys offered a considerable body of evidence in support of its contention that the good faith obligation had been breached. A careful review of that evidence reveals that it boils down to two central issues of fact: (1) whether micromarketing is the primary cause of diversion and (2) whether Borden in bad faith failed to police the exclusivity of Humphreys's brokerage contract. As to the first issue, the parties agree that micromarketing enables diversion. For purposes of this summary judgment analysis, we will assume that in fact micromarketing is the primary cause of diversion.
15
As to the second issue, the district court held, albeit under an analysis which we have found was incorrect, that the record could not support a finding that Borden intentionally enabled the diversion occurring in Humphreys's territory or failed to make a good faith attempt to control that diversion; rather, the record established that Borden had utilized a variety of measures specifically designed to control the problem. Our review of the record leads us to conclude that the district court's factual findings in this regard were not clearly erroneous. We hold that on these facts, Borden is entitled to summary judgment on the good faith claim.
16
With respect to the claim of express breach, we conclude that the district court correctly held that Humphreys had failed to present evidence that Borden made any direct sales to unauthorized brokers in competition with Humphreys. No Tennessee court has extended express breach to indirect sales such as those complained of here. However, we think that Humphreys did present sufficient evidence to preserve for trial the narrow issue of whether Borden refused to pay Humphreys commissions on product diverted into Humphreys's territory on which Humphreys was required to provide retail services, and if it did, whether this refusal constituted a breach of the exclusivity provision of the brokerage contract. Accordingly, we reverse the grant of summary judgment in favor of Borden, Inc. on count one of the complaint, the breach of contract claim.
IV
17
For the foregoing reasons, we AFFIRM the judgment of the district court on count two of the complaint, REVERSE the judgment on count one of the complaint, and REMAND this case to the district court on the narrow issue of whether Borden's failure to pay commissions, if any, constituted a breach of the contract.
1
After the district court granted summary judgment in favor of Borden, Humphreys filed a number of procedural motions, including a motion to vacate and a motion to alter and amend. The district court eventually undertook a de novo review of the defendant's motion for summary judgment and again entered summary judgment for Borden
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162 Ga. App. 120 (1982)
290 S.E.2d 341
WILLIAMS
v.
THE STATE.
63400.
Court of Appeals of Georgia.
Decided April 15, 1982.
Winship E. Rees, for appellant.
Bryant Huff, District Attorney, Steve Franzen, Johnny R. Moore, Assistant District Attorneys, for appellee.
CARLEY, Judge.
Appellant appeals from his conviction of one count of aggravated assault on a police officer.
1. Appellant argues that the trial court erred in submitting the case to the jury without instructing the jury as to the form of their verdict in the event it found appellant guilty of the lesser included offense of simple assault. The record before us demonstrates that appellant made no request to charge on the lesser included offense of simple assault. See State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). Moreover, the record shows that appellant waived any objection to the charge as given. See White v. State, 243 Ga. 250 (253 SE2d 694) (1979). Furthermore, even assuming that such a request had been made and an objection to the failure to give it not been waived, under the evidence in the instant case no error would be shown. See Harper v. State, 127 Ga. App. 359, 360 (3) (193 SE2d 259) (1974).
2. Immediately prior to the call of the case, defense counsel was served with notice of appellant's prior convictions which would be offered in aggravation of punishment. Defense counsel's objection to consideration of these convictions in the sentencing phase was overruled. Citing Queen v. State, 131 Ga. App. 370 (205 SE2d 921) (1974), appellant urges that the state did not satisfy the notice requirement of Code Ann. § 27-2503 and that the trial court's consideration of the prior convictions requires reversal of appellant's sentence. As this court has previously noted, any holding in Queen that notice on the day of trial is insufficient compliance with the statute has been obviated by the Supreme Court's decision in Corbett v. State, 233 Ga. 756 (213 SE2d 652) (1975). See Taylor v. State, 149 Ga. App. 30, 32 (4) (253 SE2d 428) (1979). In Corbett, the Supreme Court held that the purpose of the predecessor statute to existing Code Ann. § 27-2503 was "to prevent the defendant from being surprised by the state's use of evidence in aggravation during the sentencing phase of the trial and to bar the use of such evidence when the defendant receives no notice of it before he is put on trial." (Emphasis supplied.) Corbett, 233 Ga. at 758, supra. It is clear in the *121 instant case that, before appellant was put on trial, he received notice that his prior convictions would be offered in aggravation of punishment. See Franklin v. State, 245 Ga. 141, 149 (5) (263 SE2d 666) (1980). Thus, the state satisfied its obligation under the statute and if appellant were of the belief that such notice was insufficient to prevent the use of his prior convictions from constituting a "surprise," a motion for a continuance premised upon such grounds should have been made. See Taylor v. State, 149 Ga. App. at 32 (4), supra; Morrison v. State, 155 Ga. App. 234 (3) (270 SE2d 397) (1980). No such motion for a continuance was made in the instant case. "[S]o if [appellant] suffered any detriment the fault was his own. [Cit.]" Morrison, 155 Ga. App. at 235, supra.
Judgment affirmed. Quillian, C. J., and Shulman, P. J., concur.
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Filed 5/17/16 P. v. Dean CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B263505
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA073219)
v.
DANIEL CARL DEAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Valerie Salkin, Judge. Affirmed.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant and appellant Daniel Dean appeals from a judgment revoking his
probation and imposing a previously suspended four-year sentence, resulting from an
earlier plea to felony assault. We affirm.
BACKGROUND
In April 2012, a felony complaint alleged that Dean committed second degree
robbery (Pen Code, § 211)1 and assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(4)). On September 24, 2012, he pleaded no contest to felony
assault, and, on December 4, 2012, sentence was suspended and he was placed on three
years’ formal probation on the condition he serve 222 days in jail. In lieu of additional
jail time, he was ordered to complete 30 days of Caltrans or community labor.
Dean violated probation and, at his June 12, 2014 probation violation hearing,
the trial court gave him a choice: two years in prison or, if he waived back time
(i.e., presentence custody credits), remain on probation and receive a four-year suspended
sentence. After Dean conferred with his counsel, Dean elected to remain on probation.
He was accordingly sentenced, on August 4, 2014, to the high term of four years for
assault with a waiver of back time, which sentence was suspended.
Dean, in January 2015, was living in a vacant apartment without the owner’s
permission, for which he was charged with trespass. At the probation violation hearing, a
deputy testified that when he arrived, Dean resisted arrest. While being transported to the
police station, Dean said he was having a seizure and panic attack. But medical
personnel found nothing wrong with Dean. Ruben Vargas, a psychiatric social worker,
found Dean to be “somewhat delusional.” Vargas suggested a more thorough psychiatric
evaluation and, possibly, antipsychotic medication. Dean’s mental issues, however,
stemmed also from drug abuse.
The trial court found that Dean violated probation by failing to complete
community labor and by trespassing. After finding Dean ineligible for sentencing under
Proposition 47 and declining to place Dean in a program to address his alleged mental
1
All further undesignated statutory references are to the Penal Code.
2
illness, the court, on March 6, 2015, sentenced him to four years in prison. He had
88 days of presentence custody credits (44 actual plus 44 good time/work time).
DISCUSSION
After review of the record, Dean’s court-appointed counsel filed an opening brief
which raised no issues and asked this court to conduct an independent review of the
record, under People v. Wende (1979) 25 Cal.3d 436, 441. By letter dated December 24,
2015, we advised Dean that he had 30 days to submit by brief or letter any contentions or
argument he wished this court to consider. Dean submitted two letter briefs raising
several contentions.
First, Dean asks the court to “take into consideration my mental illness and
problems.” The trial court, however, disagreed that Dean has a mental illness and the
record, namely, Vargas’s testimony, supports that finding.
Second, Dean contends his counsel “poorly advised” him, because he didn’t
understand the terms related to a suspended sentence, namely waiving presentence
custody credits. To the extent Dean intends by this to raise an ineffective assistance of
the record claim, we reject it. (See generally Strickland v. Washington (1984) 466 U.S.
668, 684; People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) The trial court repeatedly
told Dean at the June 12, 2014 probation violation hearing that the only way it would
reinstate probation was if Dean waived back time. Dean also conferred with his counsel
before agreeing to have probation reinstated.
Finally, to the extent Dean contends his felony assault conviction should have
been reduced to misdemeanor battery under Proposition 47, he did not fall within the
ambit of that law. (See generally § 1170.18.) To the extent Dean asks this court to
consider in the first instance a petition for redesignation of his assault to misdemeanor
battery under Proposition 47, such a petition must be filed in the trial court that entered
the judgment of conviction. (§ 1170.18, subd. (a).)
We have examined the record and are satisfied Dean’s appellate attorney has fully
complied with the responsibilities of counsel and no arguable issue exists. (People v.
Kelly (2006) 40 Cal.4th 106, 126; People v. Wende, supra, 25 Cal.3d at p. 441.)
3
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, Acting P. J.
We concur:
LAVIN, J.
HOGUE, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
4
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65 Ill. App.2d 268 (1965)
212 N.E.2d 719
The People of the State of Illinois, Plaintiff-Appellee,
v.
Bernard Blunt, Defendant-Appellant.
Gen. No. 10,645.
Illinois Appellate Court Fourth District.
December 21, 1965.
Dwight H. Doss, of Monticello, for appellant.
Ray Moss, Special State's Attorney, of Clinton, for appellee.
SMITH, J.
The sole issue in this case is whether the 23-year-old prosecuting witness was so mentally deficient that she could not give effective consent to an act of intercourse. The jury found the defendant guilty of rape. He appeals from a denial of his motion for new trial and the resultant sentence to the penitentiary for a term of 3 to 5 years.
Ill Rev Stats 1963, c 38, ¶ 11-1, so far as here pertinent, reads:
*269 "Intercourse by force and against her will includes, but is not limited to, any intercourse which occurs in the following situations:
(1) ...
(2) Where the female is so mentally deranged or deficient that she cannot give effective consent to intercourse."
Bernard Blunt was 25 Joy Bates was 23 neither was married. They met for the first time that day, entered a motel in Clinton about 6 p.m. as friends, stayed the night, had intercourse twice and parted on a friendly basis the next morning. Their testimony as to the situational events might well have been carbon copies. It is not in dispute. The record is utterly devoid of any evidence of force, resistance, outcry, outrages or complaint on the part of Joy. The psychologists for both sides affirmatively state that Joy was not mentally deranged. On its face, this record shows two adults engaging in the time-honored pleasures of the flesh, without a solitary discordant note and with apparent mutual consent and satisfaction. Indeed the People do not claim otherwise. Their position is that Joy was so mentally deficient that she could not give effective consent and thus the pleasant sensuality of the night is converted by the statute into rape.
Witness Jones had for four years been Supervisor of Services for the Mentally Handicapped and taught in the Champaign school system for 5 years prior thereto. He had known Joy for 9 years, gave her an IQ of 78, said she was not mentally deranged, was without psychosis, was mentally deficient and declined an opinion as to whether Joy was so mentally deficient that she could not distinguish between right and wrong.
Witness Wollersheim was a psychologist teaching at the University of Illinois and working on her doctorate. *270 She gave Joy an IQ of 77, considered her a borderline case and would not say that she was so mentally deficient that she could not distinguish between right and wrong. She felt that Joy could have a sense of guilt in some areas.
Witness Gromoll was a Doctor of Psychology, had 4 years experience with the Veterans Administration, had 3 years with the Macon County Mental Health Clinic and was head of the Department of Psychology at Millikin University. He gave her a verbal IQ of 68, a performance IQ of 78, and a full scale IQ of 71. He found she was not mentally deranged or psychotic, that she knew the act of intercourse was wrong when she did it, but did it anyhow, that there was no question about her feeling badly and feeling guilty, that she said she wished it hadn't happened and didn't think it would happen again. In his opinion, she was mentally deficient, but capable of giving effective consent to an act of intercourse. He further stated that others might disagree on this matter and it was purely a matter of opinion.
Joy's mother testified that she had always been slow to learn, had been in special education classes, graduated from high school at the age of 18 with her senior class in four years and was issued a certificate of completion. As abstracted she testified that Joy "traveled alone by bus to visit her friend, Joan, in Decatur. She can cook and prepare a full meal, cleans the house, does domestic work, does quite a bit of her own personal shopping, and goes out once a week with 5 or 6 girl friends, attends movies, baby-sits, and I could always depend upon her, and I have explained the facts of life to her, she knows what sexual intercourse is, but I don't think she had ever had sexual intercourse before. Joy has been visiting in Decatur at least 4 or 5 times." She further stated "that she had nothing to drink, wasn't mistreated and was not unconscious nor drugged. I did give her sex education *271 and she does know what sexual intercourse is, and she knew what it meant on July 11, 1964. I had told her there was a possibility of contracting a venereal disease, of becoming pregnant by reason of sexual intercourse, and she knew what being pregnant meant. Since July 11th Joy has a feeling of being ashamed and unclean, and had the feeling of committing adultery because she goes to Church and understands the Ten Commandments."
The record shows that Joy visited with her friend, Joan, in Decatur for several days before the occurrence; that Joan was then pregnant and was unmarried and was delivered of a woods colt shortly before the trial; that they returned from a date with a couple of boys about 5 a.m. in the morning and these boys offered to take Joy back to her home in Champaign; that instead they went to Carter's Lake near Clinton and Joy had intercourse there with one Ronnie Provin; that they went to a place on Salt Creek called Possum Hollow where the defendant joined them; that after one act of intercourse at the motel, defendant went to get some beer and while gone Joy had a second act of intercourse with Ronnie; that Ronnie then left and Joy and defendant had a second act of intercourse and, as Joy testified, she turned over, went to sleep, and awakened about 6 o'clock, defendant awakened, said "Good Morning, Doll", took a shower, said he had to go to work and gave her a dollar for breakfast. Joy did not become pregnant as a result of the day's events.
Joy testified on behalf of the People. It is suggested that it is impossible to reflect in the printed record her appearance, demeanor and intelligence and the difficulty both counsel had in eliciting her answers. This is, of course, true. The record does show a failure to answer some questions, that at one point the witness cried and her cross-examination resulted largely in monosyllabic *272 answers. Joy had a high palate with a resultant speech difficulty but could be readily understood. As against this circumstance, we necessarily weight the testimony of her mother, the psychologists and the others who observed and conversed with her under more relaxed circumstances. Joy herself testified largely by way of yes or no answers to direct and specific questions to the following.
"I had intercourse with Bernard Blunt twice on the evening of July 11, 1964, and he was not cruel to me at any time and was always kind and he did not hurt me in any way. I have had conversations with my mother with respect to what an act of intercourse is and I know and understand that you might contact a venereal disease if you have intercourse and that it is possible to become pregnant. I enjoyed intercourse with Bernard Blunt and he did not make any profane arguments or nasty remarks to me at any time.
"... I understand that is an act of intercourse, and I think it was wrong to have committed an act of intercourse with Bernard Blunt and I am ashamed of it and sorry for it and feel guilty by reason of it, and I do not want Bernard Blunt prosecuted for having committed an act of intercourse with me or have him brought into Court. What he was doing with me was agreeable to me. I am not now pregnant. I understand what pregnancy is, and I know what menstrual periods are and I have menstrual periods and have had menstrual periods since July 11, 1964. If I were with the defendant or the other boys I had mentioned again I would not commit an act of intercourse with them."
*273 The deputy sheriff who interviewed her during the morning after she left the motel stated:
"... Joy did say she didn't want to face the boys again, that she was going to break her leg or run away from home so she wouldn't have to face the boys. I think she might have had a guilty feeling or possibly just her own personal feeling that she didn't want to face the boys."
[1] In our judgment our inability to see and hear Joy on the witness stand does not absolve us from our obligation to carefully scrutinize the evidence. People v. Faulisi, 25 Ill.2d 457, 185 NE2d 211; People v. Qualls, 21 Ill.2d 252, 171 NE2d 612. This is even more impelling as we deal with a new statute which gives new legislative impact to the words "by force and against her will." The use of the word "so" in the statute assumes proportions beyond its size. Mere mental derangement or mental deficiency is not enough. Its thrust must be of sufficient magnitude to throttle effective consent. To what does the term "mentally deficient" relate? Does it imply the lack of mental capacity and training to understand calculus, the provisions of the Internal Revenue Code or the doctrine of dependent relative revocation in wills? We think not. Is the mental deficiency equated with the inability to pursue ordinary educational standards? If so, our inquiry is at an end, for Joy's schooling throughout was in special educational classes and she graduated from high school in special education. Does it mean the inability to distinguish between right and wrong in moral areas? One psychologist refused to express an opinion; another "would not say that she is so mentally deficient that she could not distinguish between right and wrong"; and the third felt that she could so distinguish. Joy's own testimony suggests that *274 she could so distinguish. Does it mean the inability to understand and comprehend the act of sexual intercourse, its moral aspects and the evil consequences which may flow from it? Again this record establishes such comprehension. The girl friend with whom she visited certainly had some information on the subject and was Exhibit No. 1 as to its consequences. We would be naive to assume that they did not discuss it.
[2] In other jurisdictions where punishment is imposed upon those having sexual intercourse with females who through unsoundness of mind are incapable of effective consent, the capacity to consent "presupposes an intelligence capable of understanding the act, its nature and possible consequences." 44 Am Jur Rape, § 10, Ann Cas 1912B 1050. We think this record attributes to Joy that intelligence. The bizarre events of this record cannot be equated with Joy's lack of knowledge of the nature of the act nor of its moral reprehensibility nor of the possible fruits of its enjoyment. Morally distasteful as it is, it is not within the proscription of criminal sanctions under our Criminal Code relating to forcible rape. Accordingly, the judgment of the Circuit Court of DeWitt County must be and it is reversed.
Reversed.
TRAPP, P.J. and CRAVEN, J., concur.
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963 N.E.2d 246 (2012)
357 Ill. Dec. 293
MUNIZ
v.
HERRIN MEDICAL CLINIC, LTD.
No. 113331.
Supreme Court of Illinois.
January 1, 2012.
Disposition of petition for leave to appeal Denied.
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750 P.2d 436 (1988)
STATE of Montana, Plaintiff and Respondent,
v.
Donald Allen KINNEY, Jr., Defendant and Appellant.
No. 87-181.
Supreme Court of Montana.
Submitted on Briefs December 31, 1987.
Decided February 10, 1988.
J. Dirk Beccari, Missoula, for defendant and appellant.
Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Betty T. Wing, Deputy County Atty., Missoula, for plaintiff and respondent.
GULBRANDSON, Justice.
Defendant/appellant Donald A. Kinney (Kinney) appeals his conviction by jury and judgment by the Fourth Judicial District Court, Missoula County, on the offense of driving under the influence (DUI) pursuant to MCA § 61-8-401, et seq. Kinney claims he was unfairly prejudiced by the State's introduction into evidence of prior convictions of DUI. We affirm.
The only issue we have before us is whether the District Court erred in allowing the State to introduce evidence of Kinney's prior convictions for DUI.
We initially note that appellant has included only a partial transcript on this appeal. There is no notice in the file as required pursuant to Rule 9(b), M.R.App.P. We are limited on the facts in this review because of lack of information concerning the circumstances of the arrest. Further, the partial transcript causes problems in determining the issue at bar, admissibility of the prior convictions, due to a lack of the District Court's substantive rulings.
According to the information filed February 20, 1986, Kinney was charged with three counts. Count I charged Kinney with the offense of DUI, third or subsequent *437 offense, a high misdemeanor under § 61-8-401, MCA; Count II charged him with operating a motor vehicle with improper license plates pursuant to § 61-3-301, MCA; and Count III charged Kinney with operating a motor vehicle with a revoked driver's license under § 61-5-212, MCA.
The affidavit and motion for leave to file information stated that Missoula County Deputy Steve Peterson stopped Kinney for speeding on January 25, 1986. Peterson smelled alcohol on Kinney's breath and requested performance of a number of field sobriety tests which Kinney failed. Kinney was arrested and taken to the police department for processing. He refused a blood alcohol test. When asked if he had been drinking, Kinney replied that he had. When asked if he was "under the influence," he stated, "naturally."
At an April 3, 1986 omnibus hearing, the State gave Kinney notice that it intended to introduce evidence of previous convictions pursuant to Rule 404, M.R.Evid. A checklist at the omnibus hearing required the State to file formal notice as required under State v. Just (1979), 184 Mont. 262, 602 P.2d 957, by April 18, 1986. This notice was never filed and on November 20, 1986, the District Court granted Kinney a motion in limine disallowing the State from introducing any evidence of the prior convictions.
Kinney originally entered a plea of not guilty to all three counts but changed the plea to guilty on all counts except driving under the influence on November 20, 1986. Trial occurred November 20 and 21, 1986. At trial, the following testimony was elicited from Kinney:
[On direct examination by defense counsel]:
Q. Are you familiar with the term "under the influence," Mr. Kinney?
A. I am now, yes.
.....
Q. I'm going to ask you the critical question. Were you under the influence of alcohol at the time you were arrested?
A. I don't believe so.
Q. You're quite sure?
A. Yes.
.....
Q. Do you recall when I was talking to the jury earlier and I explained the difference between "under the influence" or "having one drink and driving under the influence?"
A. Yes.
Q. When the officer asked you if you were under the influence, were you or were you not assuming that "under the influence" meant just having a sip of beer?
[Prosecutor]: Objection, leading the witness, Your Honor.
[The court]: Sustained. Rephrase your question.
Q. [Defense Counsel]: Why did you tell the officer you were under the influence, when obviously from your testimony, you did not have very many beers?
A. Well, I didn't understand what "under the influence" meant. I thought even if you took like a teaspoon full of alcohol, you'd be under the influence since you had the alcohol in your system.
.....
[On cross-examination, Kinney testified as follows]:
.....
Q. [Prosecutor] I guess I will rephrase may question and ask you to answer my question. My question is you just testified you do not understand the term, "under the influence." My question to you is, is that the reason why you answered the officer in response to his question, "Naturally?"
A. Yes.
[Defense Counsel]: Your Honor, I think he should be allowed to explain that question more. The first time [the prosecutor] asked that he had begun to answer by explanation.
[The court]: Did you have more of an answer you wanted to give?
A. Yes. The reason I answered, "Naturally," is because the previous question was, "Had I been drinking?" And the next question was, "Was I under the *438 influence?" And I didn't understand what the term meant, so I said, "Naturally."
.....
Q. [Prosecutor]: Mr. Kinney, your testimony has been that you don't understand the meaning of "under the influence of alcohol," is that correct?
A. I didn't at the time, I do now.
Q. Mr. Kinney, isn't it also true that you have two prior convictions before this incident for driving under the influence of alcohol?
A. Yes.
[No objection was made to the question and there was no motion to strike the answer.]
The general rule is that failure to timely object or make a motion to strike does not preserve the record for claiming error on appeal. Rule 103, M.R.Evid., states that "[e]rror may not be predicated upon a ruling which admits evidence unless ... a timely objection or motion to strike appears of record ..." See, Clark v. Norris (Mont. 1987), 734 P.2d 182, 188, 44 St.Rep. 444, 450; Poindexter & Orr etc. Co. v. Oregon R.R. Co. (1905), 33 Mont. 338, 83 P. 886.
As evidenced in the partial transcript, however, the District Court, on the following day of trial, let defense counsel object on the record to the questioning regarding the prior convictions. Due to the ruling of the District Court we will consider the evidence as if the objection had been timely made.
At the close of the trial, the District Court properly instructed the jury on prior convictions:
The State has offered evidence that the defendant at another time engaged in other crimes. That evidence was not admitted to prove the character of the defendant in order to show he acted in conformity therewith. The only purpose of admitting that evidence was to show knowledge or absence of mistake or accident. You may not use that evidence for any other purpose.
Kinney claims the District Court erred when it allowed questioning regarding the prior DUI conviction evidence because it was inadmissible under Rule 609, M.R. Evid., and the State violated the notice requirements of State v. Just, supra. Kinney claims his character was degraded in contravention of § 26-2-302, MCA, when the prosecutor asked him about his prior DUI convictions. This statute is cross-referenced with Rule 609, M.R.Evid., which states: "For purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible."
Rule 404(b), M.R.Evid., also deals with the question of when prior conviction evidence is admissible. It states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Emphasis added.)
Prior conviction evidence is generally admissible in two ways. The first, requires compliance with the standards set out in State v. Just, supra. Alternatively, however, when the defendant puts before the jury the issue of his character or misguides the jury by statements of his good moral attributes, he "opens the door" and the prosecution may introduce evidence of prior crimes, wrongs or acts.
We have stated that the trial court has wide discretion in determining whether previous conviction evidence should be allowed. Absent an abuse of discretion, the Court will not overturn a District Court's weighing of the danger of prejudice to the defendant against the probative value of the prior conviction evidence. Rule 403, M.R.Evid.; State v. Pease (Mont. 1986), 724 P.2d 153, 162, 43 St.Rep 1417, 1428; State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380.
In Austad, supra, we affirmed the District Court when it allowed evidence of a previous conviction even though the strict procedure of Just was not followed. The defendant in Austad, stated that he would *439 not have committed the crime of burglary because it was not in his nature. The prosecution then presented evidence that the defendant had indeed previously been convicted of burglary. We stated that despite the defendant's answer being elicited from the State, the pertinent trait of the defendant's character was thrust before the jury and therefore the defendant's statement came "[w]ithin the exception of Rule 404(a)(1), and open[ed] the door for the State to present rebuttal evidence of a pertinent trait of the character of the accused." Austad, 641 P.2d at 1383.
The defendant in Austad primarily relied on Rule 609, M.R.Evid., just as Kinney is in this case. Under the facts of this case, Rule 404(b) is also applicable.
Here, the evidence of defendant's prior felony conviction was admitted to prove not that defendant committed the crimes of which he was charged, but that defendant lied under oath.
Austad, 641 P.2d at 1384.
In the instant case, the evidence was not presented by the State to prove that, because Kinney had previously committed the offense of DUI that he would commit it again, but instead the previous crime evidence was allowed to prove that he had knowledge of what "under the influence" meant. As we said in Austad, this type of case falls outside of Rule 609 and the strict procedural requirements of Just, supra, and its progeny of case law.
Here, on cross-examination, defendant answered a question with an unnecessary, self-serving statement which he knew to be untrue, intended to place him in a better light with the jury.
Austad, 641 P.2d at 1384.
We stated that Austad's testimony "open[ed] the door" for the state to present rebuttal evidence. The testimony in this case shows Kinney also made statements which were self-serving and placed him in a better light with the jury on direct examination. Specifically, when Kinney said he was not familiar with the term "under the influence" at the time of the arrest and did not believe he was under the influence when he was arrested, he opened the door to evidence of the previous DUI convictions.
Once the issue is presented to the jury by the defendant, the prosecution may introduce evidence of prior crimes. In State v. Wilson (Mont. 1981), 631 P.2d 1273, 1277, 38 St.Rep. 1040, 1044, we stated:
If [a defendant in a criminal case] takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. "[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts." ... Brown v. United States (1958), 356 U.S. 148, 154-155, 78 S.Ct. 622, 626, 2 L.Ed.2d 589, 596-597.
Kinney's statements fall precisely under the exception stated in Rule 404(b) that prior crimes can be presented to prove defendant's knowledge. Having been convicted of DUI on a number of prior occasions, Kinney undoubtedly had knowledge of what "under the influence" encompassed. In his testimony, Kinney attempted to misguide the jury by claiming he did not understand the term.
When a defendant understands the intricacy of proving a legal term of art and attempts through his own testimony to subvert proof of this element, he has clearly shown knowledge. There is no question that Kinney's knowledge was relevant in this case and fell into the category of exceptions stated in 404(b).
Under the facts of this case, we hold that the District Court did not abuse its discretion by allowing evidence of the prior DUI convictions.
Affirmed.
TURNAGE, C.J., and WEBER, SHEEHY and HUNT, JJ., concur.
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213 B.R. 1008 (1997)
In re John Wayne BARCAL, Debtor.
John Wayne BARCAL, Appellant,
v.
Kathleen LAUGHLIN, Trustee,
and
United States of America, Appellees.
BAP No. 97-6050 NE.
United States Bankruptcy Appellate Panel of the Eighth Circuit.
Submitted September 9, 1997.
Decided November 14, 1997.
*1009 *1010 John W. Barcal, Ninwood, NE, pro se.
Marilyn N. Abbott, Omaha, NE, for Kathleen Laughlin.
Robert D. Metcalfe, Loretta C. Argrett and Robert S. Watkins, on the brief, Washington, DC, for U.S.
Before KRESSEL, SCHERMER and SCOTT, Bankruptcy Judges.
SCHERMER, Bankruptcy Judge.
The Debtor, John Wayne Barcal, ("Debtor") appeals the bankruptcy court[1] order dismissing his Chapter 13 bankruptcy case on the basis that the Debtor's unsecured, disputed tax liabilities exceeded the statutory limit for eligibility under § 109(e) of the Bankruptcy Code.[2] For the reasons outlined below, we affirm the decision of the bankruptcy court holding that the court should include disputed claims in considering a debtor's eligibility for Chapter 13 relief, and we further affirm the bankruptcy court's determination that a debtor is not entitled to a full judicial determination of the amount and validity of disputed claims where the debtor's schedules and proofs of claim on file reveal that debts exceed the eligibility limits of § 109(e).
I. FACTUAL BACKGROUND
Debtor filed a petition for relief under Chapter 13 of the United States Bankruptcy Code on January 21, 1997. At that time, the *1011 Debtor also filed his Schedules, Statement of Affairs and his Chapter 13 Plan. The Debtor's only scheduled claims were unsecured non-priority claims owed to the United States Internal Revenue Service (the "Service"), and to the State of California. In Schedule F, "Creditors Holding Unsecured Non-priority Claims," the Debtor listed the Service as holding an unsecured claim in the amount of $406,720.20 for tax years 1989, and 1990 through 1992. The Debtor also scheduled two taxing authorities of the State of California as holding unsecured claims in the amount of $23,872.22 and $12,446.30. The Debtor's total scheduled, unsecured claims at filing were $443,038.72, of which a maximum of $27,203.19 could have been secured, based upon the Debtor's valuation of assets.
The Debtor placed an "X" in the column on his bankruptcy schedules to declare that he disputed these tax liabilities, but he did not check the other columns to indicate that he considered the obligations unliquidated or contingent. The Chapter 13 trustee, Kathleen A. Laughlin (the "Trustee"), filed a Motion to Dismiss the Chapter 13 case based upon the Debtor's ineligibility to file a Chapter 13 petition under § 109(e) because his non-contingent, liquidated, unsecured debts exceeded the statutory limit of $250,000. The Service joined in the Trustee's Motion.
In its amended proof of claim, the Service asserted that it held unsecured non-priority claims against the Debtor in the amount of $498,992.51; a secured claim in the amount of $2,203.19; and an unsecured priority claim in the amount of $952.76. The Debtor objected to the Service's proof of claim and responded to the Motion to Dismiss by asserting that the Court should not count the Service's claim for eligibility purposes because the claim was both disputed and fraudulent. The Debtor maintained that the claim was fraudulent because it represented tax liabilities which, in part, the Service abated as a result of prior civil litigation. Further, he objected that the Service released some of the tax liabilities when the Service released certain prior tax liens. Other taxes, he asserted, were improper because the Service sent its notices of assessment and deficiency to incorrect addresses. Finally, he contended that the Service overstated some liabilities because the Service improperly disallowed various deductions.
At the hearing on the Motion to Dismiss, the Service introduced certified Certificates of Assessments and Payments ("Certificates of Assessment") which reflected an unpaid balance of tax assessments in excess of $250,000 for the tax years 1987, 1989, 1990 and 1991. In addition to these assessments, the Service's proof of claim, which the court received in evidence, reflected total interest of $170,508.21 and penalties of $110,112.49 on the unsecured claims. In opposition, the Debtor introduced various tax records along with his own declaration or affidavit in which the Debtor enumerated his objections summarized above.
By order dated May 22, 1997, the bankruptcy court dismissed the Debtor's Chapter 13 case, holding that the Debtor's non-contingent, liquidated, unsecured debts exceeded $250,000 and concluding that the Debtor was therefore not entitled to relief under Chapter 13. The Debtor now appeals.
II. ISSUES ON APPEAL
The Debtor asserts three issues on appeal. First, the Debtor challenges the bankruptcy court's legal conclusion that the court should count disputed tax claims in determining a debtor's maximum debt for Chapter 13 eligibility. Second, the Debtor asserts that the court erred in its determination that the liabilities were non-contingent and liquidated. And, third, the Debtor protests that the court failed to consider fully the amount and validity of the tax claims, or the merits of the Debtor's objection thereto as part of its analysis of the Debtor's Chapter 13 eligibility.
III. STANDARD OF REVIEW
Whether the amount of a disputed debt should be included in an eligibility determination under Chapter 13 requires examination of the rules governing statutory construction and is, therefore, a question of law. Nicholes v. Johnny Appleseed of Washington (In re Nicholes), 184 B.R. 82, 86 (9th Cir. BAP 1995). Similarly, whether a debt is liquidated or unliquidated, contingent or non-contingent is a question of law. We review *1012 questions of law de novo. First Nat'l Bank of Olathe Kansas v. Pontow, 111 F.3d 604, 609 (8th Cir.1997); Estate of Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir.1997). Finally, the Debtor's third challenge asks whether the bankruptcy court has the obligation to fully determine the amount of disputed claims when determining Chapter 13 eligibility. This question, too, requires statutory construction and is a question of law subject to de novo review.
IV. ANALYSIS
Chapter 13 Statutory Background
Section 109(e) of the Bankruptcy Code sets forth the eligibility requirements for Chapter 13 relief. That section states in relevant part:
(e) Only an individual with regular income that owes, on the date of the filing of the petition, non-contingent, liquidated, unsecured debts of less than $250,000 and non-contingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual's spouse, . . . may be a debtor under chapter 13 of this title.
11 U.S.C. § 109(e). The Bankruptcy Code defines a "debt" as "liability on a claim." § 101(12). A "claim" means a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured." § 101(5)(A). Although the definition of a "claim" explicitly includes debts that are contingent and unliquidated, § 109(e) excludes unliquidated and contingent debts from Chapter 13 eligibility computation. Nicholes, 184 B.R. at 88. Section 109(e) does not, however, exclude from such calculation debts which a debtor merely disputes.
The Bankruptcy Code, does not provide definitions for the terms "contingent," "liquidated" or "disputed." While courts have assigned different meanings to these terms, their definitions often overlap, thereby enabling a disputed claim to be both unliquidated and contingent. See In re Lambert, 43 B.R. 913, 920 (Bankr.D.Utah 1984). Indeed, it is the Debtor's assertion that the Service's claims are both unliquidated and contingent because of the nature of the Debtor's dispute.
As an initial matter, consistent with the majority of courts, we hold that disputed, non-contingent and liquidated debts must count toward the debt limitations for Chapter 13 eligibility. United States v. Verdunn, 89 F.3d 799, 801 n. 9 (11th Cir.1996). Accord In re Sylvester, 19 B.R. 671 (9th Cir. BAP 1982); Vaughan v. Central Bank of the South (In re Vaughan), 36 B.R. 935 (N.D.Ala.1984); Craig Corp. v. Albano (In re Albano), 55 B.R. 363 (N.D.Ill.1985); In re Madison, 168 B.R. 986 (D.Hawai'i 1994); In re Jordan, 166 B.R. 201 (Bankr.D.Me.1994); In re Ekeke, 198 B.R. 315 (Bankr.E.D.Mo.1996). In other words, a court should not exclude from the computation of debts for Chapter 13 eligibility an obligation that the debtor merely disputes.
The Court in Vaughan explained the rationale behind such policy, and we adopt that explanation here.
Congress sets the limits as to who qualifies to file for bankruptcy under Chapter 13. This Court cannot find in any legislative history where Congress contemplated allowing disputed claims to be excluded from the calculation of the maximum allowable debt. This Court can only speculate that any such statutory language would cause a flood of "disputes" over liabilities which, if allowed to translate a claim into an unliquidated claim could utterly thwart the judicial process in bankruptcy proceedings. It is easy to envision debtors regularly using such a "dispute" technique as a stalling device. If such a device were given judicial recognition it would create havoc. The unscrupulous would file a Chapter 13 petition and then "dispute" the unsecured debts, allow the litigation to continue under Chapter 13, and then after months of costly delay the bankruptcy court would find that all had been in vain because the "disputes" were only imagined and that the bankruptcy court lacked jurisdiction to adjudicate the claims.[3]
*1013 Thus, unless the debts to the Service are contingent or unliquidated, although the Debtor disputes those debts, they must be counted for Chapter 13 eligibility purposes and, when counted, they render the Debtor ineligible.
Are the Debts Contingent?
While the terms contingent and liquidated are not statutorily defined, case law has developed an established definition of each term. With respect to "contingent," "[I]t is generally settled that `if all events giving rise to liability occurred prior to the filing of the bankruptcy petition,' the claim is not contingent." In re Keenan, 201 B.R. 263, 264-65 (Bankr.S.D.Cal.1996), quoting In re Nicholes, 184 B.R. 82, 88 (9th Cir. BAP 1995). Accord In re Loya, 123 B.R. 338, 340 (9th Cir. BAP 1991); In re Albano, 55 B.R. 363, 366 (N.D.Ill.1985). In Albano, the court provided the following conceptual distinction between contingent and disputed debts, observing that the determinant factor is whether the challenge involves conditions subsequent or conditions precedent.
1. Contingent debts (in the sense of dependency on a future event) involve no liability unless the condition precedent occurs (e.g., in the case of a guarantee-default by a principle).
2. Disputed debts involve presumptive liability unless cut off by a condition subsequent (e.g. entry of a judgment for the debtor).
Id. at 366.
Contingent liabilities therefore are a class of liabilities in which the obligation to pay does not arise until the occurrence of a "triggering event or occurrence . . . reasonably contemplated by the debtor and creditor at the time the event giving rise to the claim occurred." Id. quoting In re All Media Properties, 5 B.R. 126, 133 (Bankr.S.D.Tex.1980) aff'd per curiam, 646 F.2d 193 (5th Cir.1981).
In this matter, the Debtor's liabilities to the Service do not await a "triggering event" or some condition precedent for the debts to exist. Rather, the obligations presently exist with liability having been determined at the time of assessment. While the Debtor disputes the amount of his tax liability, the Service's Certificates of Assessment established the amount owed. Those certificates listed not only the dates and amounts of assessment by the Service for each of the tax years in issue, but also contained the dates on which the Debtor made payments, or on which credits were applied to the various assessments. Additionally, the Debtor's Schedules admitted the existence of these tax liabilities. On such facts, the court correctly determined that the Service's claims were non-contingent liabilities.
Are the Debts Liquidated?
Bankruptcy courts have consistently held that a debt which is "readily calculable," or "readily determinable" is a liquidated debt, regardless of whether the debtor disputes the obligation. In re Keenan, 201 B.R. 263, 266 (Bankr.S.D.Cal.1996). See In re Nicholes, 184 B.R. 82, 91 (9th Cir. BAP 1995); In re Loya, 123 B.R. at 340-41 (9th Cir. BAP 1991); In re Wenberg, 94 B.R. 631, 634 (9th Cir. BAP 1988). The question of whether the claim is liquidated then turns on whether the Debtor's disputed debts were "readily calculable."
In an attempt to define what is meant by "readily calculable" or "readily determinable," some courts have focused on the extent of the evidentiary hearing required to resolve the dispute. For example, In re Wenberg, the Ninth Circuit Bankruptcy Appellate Panel explained that "[t]he definition of `ready determination' turns on the distinction between a simple hearing to decide the amount of a certain debt, and an extensive and contested evidentiary hearing in which substantial evidence may be necessary to establish amounts or liability." Id. at 634. Similarly, in Nicholes, the court attempted a clarification by stating that ". . . if the dispute itself makes the claim difficult to ascertain or prevents the ready determination of the amount due, the debt is unliquidated and excluded from the § 109(e) computation." Id. at 91 (emphasis added). Based upon *1014 such definitions, the Debtor in the instant matter contends that his tax liabilities are not "readily calculable" (and therefore are not liquidated) because the tax liabilities have been, and are still, the subject of extensive and protracted litigation disputing the amount of the tax assessments.[4]
We hold that the key factor in distinguishing liquidated from unliquidated claims is not the extent of the dispute nor the amount of evidence required to establish the claim, but whether the process for determining the claim is fixed, certain, or otherwise determined by a specific standard. This definition is in accord with the early distinction between contract and tort claims addressed in In re Sylvester, 19 B.R. 671 (9th Cir. BAP 1982). There, the court contrasted the unliquidated nature of tort claims with the liquidated nature of contract claims and held that a disputed contract liability was liquidated even though adjudication of the debt required submission of evidence at trial. While tort claims were not fixed as to liability or amount until a juridical award, the court stated that contract claims were subject to ". . . ready determination and precision in computation of the amount due. . . . [and] the amount due [was] capable of ascertainment by reference to an agreement or by simple computation." Id. at 673.
Under such test, the instant Debtor's tax liabilities were indeed readily determinable and liquidated because at the time of filing, the liabilities had already been fixed or established by the Service's Certificates of Assessment. The assessment of a tax liability is essentially a bookkeeping function whereby a representative of the Service establishes an account against the taxpayer on the Service's tax rolls. Hempel v. United States, 14 F.3d 572, 572 n. 1 (11th Cir.1994) citing Laing v. United States, 423 U.S. 161, 170 n. 13, 96 S.Ct. 473, 479 n. 13, 46 L.Ed.2d 416, (1976). The "assessment" sets in motion the collection powers of the Service, and once the Service makes an assessment, the taxpayer's only recourse is to pay the tax and bring a suit for refund. Hempel, 14 F.3d at 573 n. 1 and n. 2. Prior to making an assessment, however, the Service is required to send the taxpayer a statutorily required notice of deficiency, or "90-day letter." Id. at 573.
While the Debtor disputes receipt of the Service's deficiency notices, the Service's Certificates of Assessment state the date on which the Service issued such notices for each year at issue as a preliminary step in its assessment process. A notice of deficiency is a statutorily authorized document that the Service must send whenever its agents determine that the taxpayer owes a deficiency. Benzvi v. Commissioner of Internal Revenue, 787 F.2d 1541, 1542 (11th Cir.1986). The Internal Revenue Code defines a "deficiency" as the difference between the taxpayer's liability and the liability shown on the taxpayer's return. Id. Thus, to send a notice of deficiency, an agent of the Service must first have examined the taxpayer's return and determined (or calculated) the amount of the deficiency. Id. (citations omitted). The notice of deficiency then states that a definite sum of money is owed by the taxpayer to the Service, and that the stated amount is payable unless the taxpayer can prove otherwise. In re Lamar, 111 B.R. 327, 329 (D.Nev.1990).
For each tax year involved in the instant case, the Certificates of Assessment state the date the Debtor filed his tax return, the date thereafter that the Service issued its deficiency notices, and the determined amount of the deficiency which the Service then assessed. Whether or not the Debtor agrees that he properly received notices of deficiency for each year does not alter the fact that the taxes were determined or liquidated through the Service's process of assessment. Accordingly, the Debtor's tax liabilities, having been determined, are liquidated debts which were properly included in calculating the Debtor's Chapter 13 eligibility at the time of filing. See also In re Madison, 168 B.R. 986 (D.Hawai'i 1994) (rejecting similar arguments concerning eligibility for Chapter 13 where tax liabilities were disputed).
*1015 Is the Debtor Entitled to have the Bankruptcy Court Resolve the Tax Claim Dispute and Fully Determine his Tax Liability?
The Debtor lastly contends that the court erred in failing to conduct a full evidentiary hearing to determine the amount of his tax liabilities and in failing to fully consider the merits of his objections to the Service's proof of claim. We hold that the court appropriately refused to resolve the tax dispute or determine the merits of the tax claim, and we further conclude that the court's canvassing of the evidence at hearing on the Motion to Dismiss constituted an appropriate review of the claims for § 109(e) eligibility purposes. The purpose of Chapter 13 debt limitations is "to limit the availability of a Chapter 13 adjustment of debts to individual wage earners and `small sole proprietor[s], for whom a chapter 11 reorganization is too cumbersome a procedure.'" In re Albano, 55 B.R. 363, 365 (N.D.Ill.1985), quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 319-20, reprinted in 1978 U.S.Code Cong. & Ad. News 5963, 6276-77. Such limited eligibility is intended to implement the expeditious administration of Chapter 13 reorganizations. To require the bankruptcy court to decide the merits of disputed claims before determining eligibility imposes an impractical burden and delay upon the Chapter 13 court. In re Madison, 168 B.R. 986, 989 (D.Hawai'i 1994). Alternatively, it has been said that requiring the bankruptcy court to pass on the merits of all claims before the proceeding could even get under way, would generate a circular and self-defeating barrier to the prompt administration of Chapter 13 proceedings. In re Albano, 55 B.R. at 368. See Comprehensive Accounting Corp. v. Pearson, 773 F.2d at 751, 756 (6th Cir.1985). Thus, the bankruptcy court was not obligated to fully determine the amount of the tax claims, and in fact, to do so would have been contrary to Chapter 13 policy of expediency.
Rather than making final determinations on disputed liabilities, it is appropriate for a court considering eligibility to rely primarily upon a debtor's schedules and proofs of claim, checking only to see if these documents were filed in good faith. Comprehensive Accounting Corp., 773 F.2d at 756. In so doing, however, the court should neither place total reliance upon a debtor's characterization of a debt nor rely unquestionably on a creditor's proof of claim, for to do so would place eligibility in control of either the debtor or the creditor. In re Madison, 168 B.R. at 989. At a hearing on eligibility, the court should thus, canvass and review the debtor's schedules and proofs of claim, as well as other evidence offered by a debtor or the creditor to decide only whether the good faith, facial amount of the debtor's liquidated and non-contingent debts exceed statutory limits.
In light of this standard, the bankruptcy court correctly reviewed the proof of claim and the evidence offered by the Service as well as the Debtor's Schedules and declaration tendered at hearing on the Motion to Dismiss. Such evidence showed that the Service made its deficiency determination and assessed taxes due the United States in an amount which exceeded Chapter 13 eligibility limitations. While the court correctly refrained from making a final determination of the amount of the Debtor's tax liabilities, the court did not clearly err in determining that the Debtor's unsecured claims exceeded the statutory limits for eligibility at the time of filing. A subsequent resolution of the tax dispute before an appropriate tribunal may result in a determination that the Debtor's tax liability is less than $250,000; however, for the purposes of Chapter 13 eligibility at the time of filing, such a final resolution is immaterial where the Debtor's schedules and proofs of claim on file reveal that the debts exceed the limits of § 109(e). Comprehensive Accounting, at 758.
The foregoing conclusion is further supported by the fact that § 109(e) does not require a hearing to determine eligibility[5] and by the fact that Chapter 13 must move very quickly with the debtor filing a plan within 15 days of the petition. Comprehensive *1016 Accounting, at 756. Further, to afford a debtor a full determination on the merits concerning his disputed tax liabilities would permit, and indeed encourage, improper forum shopping. Clearly, this Debtor was already litigating the subject tax liabilities in two proceedings in district court at the time he filed his Chapter 13 petition, and given that the only debts to be treated in this Chapter 13 proceeding were tax obligations owed to the United States and the State of California, litigating on the merits before the bankruptcy court would condone such forum shopping and delay prompt and appropriate administration of the Chapter 13 proceeding.
V. CONCLUSION
For the foregoing reasons, the decision of the bankruptcy court is affirmed.
NOTES
[1] John C. Minahan, Jr., Judge, United States Bankruptcy Court for the District of Nebraska.
[2] The Bankruptcy Code is 11 U.S.C. §§ 101-1330. All future references are to Title 11 unless otherwise indicated.
[3] While we agree with the rationale stated by the bankruptcy court in Vaughan, we note that the Eighth Circuit has stated that the question of eligibility under Chapter 13 is not a question of jurisdiction. Rudd v. Laughlin, 866 F.2d 1040, 1042 (8th Cir.1989) (holding a bankruptcy court did not lack jurisdiction to convert a Chapter 13 proceeding to Chapter 7 where debts exceed Chapter 13 eligibility limits).
[4] The Debtor challenged the disallowance of certain deductions concerning his 1987 and 1988 returns in Barcal v. United States, Civil No. CIV-S-93-1267(E.D.Calif.). He thereafter filed a second action, Barcal v. Unites States, Civil No. CIV-S-94-1462(E.D.Calif.) to challenge, among other matters, the ineffectiveness of the Service's notice of deficiency for subsequent years.
[5] The issue is properly raised as an objection to confirmation of the debtor's plan or preferably, as it was here, by a motion to dismiss.
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905 F.2d 557
UNITED STATES of America, Plaintiff, Appellee,v.Francisco Rodrigo GARCIA, Defendant, Appellant.
No. 89-1955.
United States Court of Appeals,First Circuit.
Heard May 7, 1990.Decided June 19, 1990.
Rachel Brill, Old San Juan, P.R., by appointment of the Court, for defendant, appellant.
Carlos A. Perez, Asst. U.S. Atty., San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for plaintiff, appellee.
Before TORRUELLA, SELYA and CYR, Circuit Judges.
PER CURIAM.
1
Francisco Rodrigo Garcia appeals from a judgment of conviction of the United Stated District Court for the District of Puerto Rico on three counts of possession with intent to distribute and import cocaine under 21 U.S.C. Secs. 841(a)(1), 952 and 955, and 18 U.S.C. Sec. 2. Appellant was sentenced to prison terms of 160 months for each count, to be served concurrently. We affirm.
FACTS
2
On December 13, 1989, after the arrival of a commercial airline flight from Colombia, customs inspectors at the Luis Munoz Marin Airport screened and interviewed passengers for evidence of illegal drugs. They stopped appellant and requested to see his passport, boarding pass and airline ticket. A customs inspector noticed that the airline ticket showed that appellant had checked four pieces of luggage but only had one claim stub. Appellant, a musician, stated he was just carrying one suitcase with his clothes and an accordion. He was travelling with a woman who was later indicted with appellant.1
3
Thereafter, the customs inspectors went to check the in-transit luggage where they found a music amplifier with the claim ticket number corresponding to appellant's suitcase. After perceiving a strong smell of glue--a technique commonly used to confuse drug sniffing dogs--a search of the amplifier was made, revealing a white powdery substance that, when field tested, reacted positive for cocaine. A second amplifier was found with a claim stub number consecutive to the first one.
4
Customs officials then proceeded to read appellant and his companion their rights, and took them to separate rooms. While inside this room, Garcia voluntarily signed a sworn statement. He also informed custom officials that the cocaine was not his, and stated that although he was not sure, he believed there were at least 21 kilograms of cocaine. (The actual amount of cocaine was 20.78 kilograms). He claimed that while at the airport in Colombia, a friend of his had approached the couple and asked them to carry the two amplifiers.
5
Garcia and his female companion were both charged and both pled not guilty. Garcia moved to suppress the evidence collected during the luggage search and the statements made to the customs officials while at the airport. A hearing was held and the motions were denied. The jury found Garcia guilty on all three counts and acquitted the woman.
DISCUSSION
I. Illegal search
6
Appellant argues that he was not subjected to a border search, but rather was confronted and seized by authorities at the airport based upon an unsupported drug courier profile. He further alleges that there was insufficient cause for the nonconsensual search and seizure. This claim is based on the allegations that there was no intent on appellants part to enter into the United States and that he had no knowledge of the in-transit stop in Puerto Rico.
7
It is well settled that such in-transit searches are considered border searches. E.g., United States v. Levy, 870 F.2d 37 (1st Cir.1989). Clearly, the United States Customs Service has the authority to routinely search, without a warrant or suspicion, baggage and persons in-transit from one foreign country to another. It is also authorized to decline to immunize international travelers who pass through this country however briefly. United States v. Muench, 694 F.2d 28 (2d Cir.1982). Furthermore, the fact that appellant did not know that the plane would stop in the United States is immaterial. United States v. Franchi, 838 F.2d 585 (1st Cir.1988); see also United States v. Montoya, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985).
8
Irrespective of his in-transit status or his lack of knowledge that a stop would be made in the United States, the search conducted of appellant and his luggage is clearly within the scope of those labeled "border crossing searches." The level of suspicion to search the persons and/or the luggage of persons crossing borders is minimal, and was clearly met in this case.
II. Garcia's statements
9
Appellant avers that any statement made by him was the product of the inherent coercion present in any airport encounter with officials. He also alleges that under the circumstances, his statements before or after the waiver were neither spontaneous nor voluntary. He further contends that the government failed to prove that appellant voluntarily signed the waiver form. Finally, he avers that the court's failure to suppress appellant's post arrest statements was not harmless error.
10
The evidence presented at trial established that the initial questioning was conducted as a routine Customs Service stop after deplaning. It is undisputed that once appellants interrogation proceeded to the point of seeking incriminating evidence, the customs officials read him his rights in Spanish, his native language, and made an effort to ensure that he understood them. We agree that the record is devoid of any suggestion that the agents resorted to physical or psychological pressure and/or that they asked appellant the amount of cocaine inside the amplifiers. The district court committed no reversible error.
11
Even if we were to find that the court erred, Rule 52(a) provides that any error which does not affect substantial rights shall be disregarded. Fed.R.Crim.P. 52(a). The rest of the evidence presented against appellant is so overwhelming that even if error were to have been committed, it would be deemed harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Owens v. Treder, 873 F.2d 604 (2d Cir.1989); United States v. Alexander, 835 F.2d 1406 (11th Cir.1988).
III. Sufficiency of the evidence
12
Appellant claims that, even in the light most favorable to the government, the evidence presented concerning knowledge of the cocaine by either him of his female companion was minimal. He further alleges that their testimony was entirely credible and consistent. This, appellant claims, is reinforced by the woman's acquittal.
13
Credibility is an issue to be resolved by the jury and the court must defer to the jury's findings. United States v. Rivera Rodriguez, 808 F.2d 886, 889 (1st Cir.1986). It is up to the jury, to determine which of the various choices or interpretations of evidence is credible. United States v. Smith, 680 F.2d 255 (1st Cir.1982). Upon review of the sufficiency of the evidence, an appellate court will not deal directly with credibility but instead will review the evidence considered as a whole, including all inferences that may be reasonably drawn therefrom. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
14
The evidence reveals that appellant was on board the flight from Colombia. There is no dispute that the name tag attached to the amplifier was the name tag on appellant's suitcase, that the claim ticket for his suitcase was attached to the excess baggage ticket with a second one corresponding to the amplifier, and that appellant had checked four pieces of luggage. Finally, illegal contraband was found inside his luggage. If the jury credited this evidence and the inferences arising therefrom, it could infer guilt. Because the jury is free to choose among reasonable constructions of the evidence such as that described above, we conclude that the evidence was sufficient to establish guilt beyond a reasonable doubt. See United States v. Milton, 892 F.2d 134, 137 (1st Cir.1989); United States v. Costa, 890 F.2d 480, 481 (1st Cir.1989); United States v. Rivera Rodriguez, 808 F.2d at 889.
IV. Acceptance of Responsibility
15
Appellant argues that because he admitted responsibility for his criminal actions before the sentencing judge, appellant should have been allowed a two point downward adjustment under the sentencing guidelines.
16
Section 3E1.1 of the sentencing guidelines provides for a two point reduction in offense level "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." The district court's "inquiry into acceptance of responsibility is necessarily factbound," United States v. Royer, 895 F.2d 28, 30, (1st Cir.1989), and its decision to forgo a reduction on this ground will not be overturned unless clearly erroneous. Id. at 29-30; see also United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir.1989) (per curiam); United States v. Zayas, 876 F.2d 1057 (1st Cir.1989). Downward adjustments for acceptance of responsibility are not automatically to be conferred upon every accused who pleads guilty. Mata-Grullon, 887 F.2d at 24. In this case appellant has yet to truthfully admit and describe his involvement in the offenses of conviction. There was ample basis to withhold the adjustment; acceptance of responsibility, after all, "necessitates candor and authentic remorse--not merely a pat recital of the vocabulary of contrition." Royer, 895 F.2d at 30.
17
Affirmed.
1
Allegedly, the couple met in a Bogota music festival some months earlier and were on their way to Europe. Both testified that she was not involved in the checking of the pieces of luggage in question, and that she did not know the contents of the amplifiers found by the inspectors
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218 S.W.3d 921 (2007)
Leura Jean GIRSH and Charles S. Girsh, Sr., Appellants,
v.
Peggy ST. JOHN, Appellee.
No. 09-06-144 CV.
Court of Appeals of Texas, Beaumont.
Submitted October 19, 2006.
Decided March 29, 2007.
*923 Lester R. Buzbee, III, Humble, for appellants.
Dean Gehring, Conroe, for appellee.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
OPINION
CHARLES KREGER, Justice.
Leura Jean Girsh and her husband, Charles S. Girsh, Sr. ("the Girshes") appeal from a judgment entered by the trial court granting injunctive relief, and awarding civil damages along with attorney's fees to plaintiff, Peggy St. John to enforce a restrictive covenant running with residential property located in the Tall Timbers subdivision, Section Two, in Montgomery County, Texas. The Girshes answered by pleading St. John lacked standing to bring suit, and by pleading the defenses of laches, abandonment, and limitations. Trial was to the court, with both parties presenting testimony and physical evidence in their respective cases. The trial court ultimately ruled in favor of St. John, and issued findings of fact and conclusions of law. On appeal, the Girshes complain of the trial court's ruling that St. John had standing to file suit (issue two), and of the trial court's failure to find the Girshes established any of their defenses (issues one and three). Being a question of law, the standing issue must be addressed first.[1]
"Standing is a constitutional prerequisite to maintaining suit." Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.2004); see Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993). It is also a component of subject matter jurisdiction, and, as such, cannot be waived and may be raised for the first time on appeal. See Tex. Ass'n of Bus., 852 S.W.2d at 445. Therefore, the issue of standing is reviewed de novo. See City of Sunset Valley, 146 S.W.3d at 646. To establish standing, a party must show a justiciable interest by alleging a threatened or actual injury. See Allstate Indem. Co. v. Forth, 204 S.W.3d 795, 796 (Tex.2006).
Generally, any person entitled to benefit under the terms of a restrictive covenant may enforce it. See Anderson v. New Property Owners' Ass'n of Newport, Inc., 122 S.W.3d 378, 384 (Tex.App.-Texarkana 2003, pet. denied) (citing Calvary Temple v. Taylor, 288 S.W.2d 868, 872-73 (Tex.Civ.App.-Galveston 1956, no writ)). This has been interpreted as meaning that an interested property owner may sue to enforce a restrictive covenant. See Anderson, 122 S.W.3d at 384-85 (citing Giles v. Cardenas, 697 S.W.2d 422, 427 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.)). In Powell v. Tall Timbers Property Association, Incorporated, No. 09-01-495-CV, 2002 WL 1990930 (Tex.App.-Beaumont, Aug.29, 2002, no pet.) (not designated *924 for publication), we examined certain provisions of the same restrictive covenant that is now before us in the context of a suit to collect unpaid maintenance fees. 2002 WL 1990930, at *1. The defendants there counterclaimed for, inter alia, breach of implied duty of good faith and fair dealing, and breach of fiduciary duty. Id. 2002 WL 1990930, at *1 n. 3. After examining paragraph "1" of the restrictions, we stated the following:
As explained in Simms v. Lakewood Village Property Owners Ass'n, Inc., 895 S.W.2d 779, 787 (Tex.App.-Corpus Christi 1995, no writ), "[t]he terms `right' and `duty' are not synonymous, but even if they were, appellants, as owners, would have the same duty to enforce the covenants as the association. Thus, the association and appellants would each have the same cause of action against each other, and such a suit would have an absurd result and serve no useful purpose." 895 S.W.2d at 787. Here, the terms of the deed restrictions impose rights of enforcement, but not duties. We find, as a matter of law, that the Association had no duty to enforce the deed restrictions. The language of the deed restrictions is clear and unambiguous.
Powell, 2002 WL 1990930, at *2. As we found in Powell, the restrictive covenant authorizes property owners in the Tall Timbers, Section Two subdivision to enforce all provisions contained therein.
The record before us contains a copy of the plat and dedication instrument pertaining to the Tall Timbers, Section Two subdivision, a copy of the restrictive covenant pertaining to the Tall Timbers, Section Two subdivision filed with the Montgomery County Clerk's Office in 1965, as well as copies of deeds for certain numbered lots located in the Tall Timbers, Section Two subdivision purchased by St. John in 1976. Each of St. John's deeds explicitly states that the specifically numbered lot is conveyed subject to any and all "restrictions" or "valid covenants [and/or] restrictions[.]" The covenant language is also quite explicit as it authorizes property owners to "prosecute any proceeding at law or equity" against violations or attempted violations of the enumerated restrictions. Notwithstanding that St. John's lots 150 and 151 were originally platted as "reserved area," her deeds to the numbered lots are expressly burdened with the limitations contained in the restrictive covenant in question.
To establish standing, a party must have a sufficient relationship with the lawsuit so as to have a justiciable interest in its outcome. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority. . . ." Id. at 848 (quoting Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996)). Based upon the pleadings and the evidence in the record before us, we find that St. John established her standing as a matter of law to file suit to enforce the provisions of the Tall Timbers, Section Two restrictive covenants. The Girshes' second issue is overruled.
In their first issue, the Girshes argue their evidence established that limitations had run on St. John's enforcement suit as a matter of law. With regard to St. John's invocation of the discovery rule, the Girshes note that St. John failed to establish the rule's applicability because she failed to show that the Girshes' violation was undiscoverable even when exercising reasonable diligence. The pertinent findings/conclusions on this point read as follows:
*925 Findings of Fact
4. Sometime in [] late 1998 or early 1999 Plaintiff discovered a Mobile Home (the "Mobile Home") on the Property of the Defendants.
5. Such Mobile Home was undiscoverable until discovered by Plaintiff in the fall of 1997 or early 1998.
10. Defendants [were] aware of the Mobile Home located on the Property and that such Mobile Home was a violation of the Deed Restrictions of Tall Timbers, Section Two.
Conclusions of Law
5. The Statute of Limitations for enforcement of deed restrictions is four years.
6. The Statute of Limitations in this action was tolled until Plaintiff discovered the Mobile Home located [on] the Property.
The trial court correctly recognizes that the statute of limitations for suits to enforce deed restrictions is four years. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 1997); Air Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 911 (Tex. App.-Dallas 2003, no pet.); Malmgren v. Inverness Forest Residents Civic Club, Inc., 981 S.W.2d 875, 877 (Tex.App.-Houston [1st Dist.] 1998, no pet.); Colton v. Silsbee State Bank, 952 S.W.2d 625, 630 (Tex.App.-Beaumont 1997, no writ); Buzbee v. Castlewood Civic Club, 737 S.W.2d 366, 368 (Tex.App.-Houston [14th Dist.] 1987, no writ); Park v. Baxter, 572 S.W.2d 794, 795 (Tex.App.-Tyler 1978, writ ref'd n.r.e.). An enforcement action accrues upon breach of the restrictive covenant. See Colton, 952 S.W.2d at 630; Baxter, 572 S.W.2d at 795. In the instant case, the evidence established that the mobile home in question was purchased by the Girshes in 1984 and placed on their property on or about that same year. It was also established that paragraph "10" of the restrictive covenant in question contained the following pertinent provision: "No trailer house or covered trailer shall at any time be erected or placed on any lot or tract for any purpose whatsoever." The record evidence, therefore, establishes the Girshes breached the restrictive covenant when they moved the mobile home onto their property in 1984.
At trial, St. John presented evidence in an attempt to avoid her suit's being barred by the four-year statute of limitations. The essence of her position at trial was that she did not discover the existence of the mobile home in the Girshes' back yard until late 1998 or early 1999 because of an overgrowth of "forest or trees." St. John admitted she had no idea when the mobile home was placed on the Girshes' property. St. John introduced photographs of the mobile home with the photographer apparently standing on a public street in the subdivision. From that vantage point, a vacant lot is situated between the photographer and the view of the mobile home. St. John contended that until the Girshes' neighbor, Mark McClain, used a "dozer" to clear this vacant lot of "underbrush, trees, large trees, small trees and brush[,]" the mobile home was not visible. St. John testified that McClain must have cleared off this vacant lot in late 1998 or early 1999 "because that's when we discovered the mobile home, we could see it." Because St. John's photographs were taken after the lot had been cleared, they do not depict any significant obstruction and the mobile home is plainly visible. St. John also testified that at some point in time McClain parked a "large Ryder rental truck" on the vacant lot that apparently obstructed the view of the mobile home. However, except for the testimony of St. John's husband, James, the testimony of *926 St. John's other witnesses did not establish the trailer was completely invisible from view prior to late 1998 or early 1999, but did show that, at some point in time, some of the witnesses became aware of the trailer's presence in the Girshes' back yard.
The Girshes and their witnesses testified that the trailer had been visible to the public well before late 1997. Additionally, Mark McClain testified that he cleared the lot separating his property from the Girshes' property sometime around 1976 to 1979. McClain added that from that point until the time of trial he had not permitted the grass on the lot to grow any higher than waist-high. He also testified that he did park a work-truck on his lot overnight for about two to three nights per week, and only for the "few months" he worked for the company that owned the truck. McClain also indicated that he had "dozers" on his property on several occasions over the years, but only once to clear the lot next to Girshes' property.
In Via Net v. TIG Insurance Company, 211 S.W.3d 310 (Tex.2006) (per curiam), the Texas Supreme Court noted that it has restricted the use of the discovery rule to "exceptional cases" so as to avoid defeating the purposes behind the limitations statutes. Via Net, 211 S.W.3d at 313 (citing S.V. v. R.V., 933 S.W.2d 1, 25 (Tex.1996)). The Court's more recent history vis-a-vis the discovery rule was detailed in HECI Exploration Company v. Neel, 982 S.W.2d 881 (Tex.1998), as follows:
The discovery rule has been applied in limited categories of cases to defer accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action. See Computer Associates International, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996). Historically, the reasoning that supported this Court's decisions to apply the discovery rule in particular cases was "diverse, somewhat inconsistent, and often overly broad." S.V. v. R.V., 933 S.W.2d 1, 5-6 (Tex.1996). We attempted to bring predictability and consistency to our jurisprudence in this area in Altai, 918 S.W.2d at 455-56, and S.V. v. R.V., 933 S.W.2d at 5-6. In those decisions, we articulated two unifying principles that generally apply in discovery rule cases. They are that the nature of the injury must be inherently undiscoverable and that the injury itself must be objectively verifiable. See Altai, 918 S.W.2d at 456; S.V., 933 S.W.2d at 6. We explained in Altai that the applicability of the discovery rule is determined categorically. Although the particular injury in Altai may not have been discovered, it was the type of injury that generally is discoverable by the exercise of reasonable diligence: "While some trade secret misappropriations might not be quickly discovered, this isolated fact does not alter the reality that, in most cases, trade secret misappropriation generally is capable of detection within the time allotted for bringing such suits." 918 S.W.2d at 457.
982 S.W.2d at 886.
There is no serious dispute that the injury-the Girshes' violation of the restrictive covenant was objectively verifiable by the presence of the prohibited item (the mobile home) on the Girshes' property. The question to be decided is whether this is the type of injury that generally is discoverable by exercising reasonable diligence. Id. The Court in Via Net added to the analysis in the following manner:
"An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence." Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734-35 (Tex.2001). This legal *927 question is decided on a categorical rather than case-specific basis; the focus is on whether a type of injury rather than a particular injury was discoverable. Id. at 736; Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex.2001).
Via Net, 211 S.W.3d at 313-14. We reiterate that the type of injury presented in the record is the placing of a full-size mobile home (approximately 12 feet by 46 feet) on a residential lot located in the midst of a populated residential subdivision in violation of a per se prohibition against trailers on residential property for any purpose.
We are unable to hold that such a category of injury is unlikely to be discovered within the four-year limitations period with the exercise of due diligence. We are guided in this by the Supreme Court's discussion of the discovery rule in HECI Exploration. In that case, the plaintiffs, owners of royalty interests in an oil and gas lease, sued their lessee, HECI, in 1993 because HECI failed to notify the plaintiffs that it had sued and obtained a judgment against an operator of an adjoining lease for damage to the plaintiffs' reservoir from illegal production. HECI Exploration, 982 S.W.2d at 884. The illegal production apparently began as early as 1985, and ended in December 1988, when oil and gas reserves otherwise recoverable through the well in question were permanently lost. Id. In reversing the court of appeals's application of the discovery rule to certain causes of action, the Supreme Court set out the following rationale:
As owners of an interest in the mineral estate, the Neels had some obligation to exercise reasonable diligence in protecting their interests. This includes exercising reasonable diligence in determining whether adjoining operators have inflicted damage. Royalty owners cannot be oblivious to the existence of other operators in the area or the existence of a common reservoir. In some cases, wells visible on neighboring properties may put royalty owners on inquiry. In any event, a royalty owner should determine whether a common reservoir underlies its lease because it knows or should know that, when there are other wells drilled in a common reservoir, there is the potential for drainage or damage to the reservoir.
Id. at 886.
As was noted above, the restrictive covenant in question authorizes any property owner in the Tall Timbers, Section Two subdivision to enforce all provisions contained therein. Echoing the Court in HECI Exploration, we find that, as an owner of property in Tall Timbers, Section Two, St. John "had some obligation to exercise reasonable diligence in protecting [her] interests." See id. The record evidence indicates the mobile home was present in the Girshes' back yard openly, and there is no evidence of the use of artificial devices or methods to camouflage or hide it. St. John's request for application of the discovery rule would require us to hold a full-size mobile home's presence on a residential lot in violation of a restrictive covenant, with said lot located in a highly populated subdivision, is a category of injury inherently undiscoverable even with the exercise of reasonable diligence, because of the presence of indigenous flora spontaneously growing nearby. A decision by us favorable to St. John would mean that she had established that the category of reasonably diligent property owners would not discover the existence of a full-size mobile home on a residential lot in the midst of a populated subdivision during the four-year limitations period. See Royce Homes, L.P. v. Dyck, No. 09-06-034-CV, 2006 WL 3094323, at *4 (Tex.App.-Beaumont, Nov.2, 2006, no pet.).
*928 In a trial on the merits, the party seeking the benefit of the discovery rule to avoid limitations has the burden of pleading and proving the discovery rule. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 n. 3 (Tex.1999); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988). The discovery rule is a plea in confession and avoidance. Woods, 769 S.W.2d at 517. The Court in Woods further stated:
A plea in confession and avoidance is one which avows and confesses the truth in the averments of fact in the petition, either expressly or by implication, but then proceeds to allege new matter which tends to deprive the facts admitted of their ordinary legal effect, or to obviate, neutralize, or avoid them.
Id. (citing Black's Law Dictionary, 269 (5th ed.1979)). The Supreme Court has made it abundantly clear that the discovery rule is a limited exception to strict compliance with the statute of limitations. See Via Net, 211 S.W.3d at 313; Altai, Inc., 918 S.W.2d at 457 (citing Trinity River Auth. v. URS Consultants, 889 S.W.2d 259, 262 (Tex.1994)). It must be remembered that "`the primary purpose of limitations is to prevent litigation of stale or fraudulent claims. . . .'" Altai, Inc., 918 S.W.2d at 457 (quoting Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex.1977)).
In the instant case, the Girshes firmly established the mobile home was moved onto their residential lot in the early 1980's, most likely in 1984 or 1985. St. John testified that she had no idea when the mobile home was moved onto the Girshes' property, but contends the mobile home was inherently undiscoverable until "the fall of 1997," or "late 1998 or early 1999."[2] Even taking the year 1985 as the latest established date of the trailer's appearance on the Girshes' lot, St. John fails to establish what, if any, restrictive covenant "enforcement" activity she was specifically involved in, other than her unrewarding experience with the property owners' association, so as to establish reasonable diligence in learning of the mobile home's presence on the residential lot. In other words, the roughly twelve or thirteen-year gap between the trailer's arrival at the Girshes' and St. John's awareness of its existence is largely unaccounted for by St. John, except by resort to the excessive growth of trees, brush, and bushes. While the record does contain some testimony regarding the establishment of a "neighborhood watch" group comprised of certain property owners, it is not shown when that group was formed, or how it operated, in any detail. It appears from the testimony that it functioned as neighborhood security and as a lookout for violators of the restrictive covenant, but the record indicates nothing further about the group. In reversing the court of appeals's application of the discovery rule, the Court in Via Net concluded its analysis with the following observation:
Our attempts to bring predictability and consistency to discovery rule jurisprudence have focused on types of injury, not causes of action. Some contract breaches may be inherently undiscoverable and objectively verifiable. But those cases should be rare, as diligent contracting parties should generally discover any breach during the relatively long four-year limitations period provided for such claims.
Via Net, 211 S.W.3d at 314-15 (citations omitted). The instant cause of action was also subject to a "relatively long four-year *929 limitations period." Accordingly, we find that St. John failed to establish that the presence of a full-size mobile home on a lot in a populated residential subdivision was inherently undiscoverable. See Dyck, 2006 WL 3094323, at *4. We hold, therefore, that the discovery rule was inapplicable to defer accrual of St. John's cause of action against the Girshes to enforce the Tall Timbers, Section Two restrictive covenant as the four-year statute of limitations bars the claims asserted by St. John. We reverse the judgment of the trial court and render judgment that St. John take nothing. See Tex.R.App. P. 43.2(c); Steinhagen v. Ehl, 126 S.W.3d 623, 628 (Tex.App.-Beaumont 2004, pet. denied).
REVERSED AND RENDERED.
NOTES
[1] We note here that the Girshes' brief fails to contain a concise statement of the issues presented for review which results in the concomitant failure to provide a clear and concise argument in support of said issues. See Tex.R.App. P. 38.1(e), (h). Although we elect to address the issues here, parties submitting such a brief risk having it stricken and the appeal decided as if no brief had been filed. See Tex.R.App. P. 38.9(a).
[2] Assuming without deciding the 1999 discovery year to be the correct one, the record is silent as to the reason an additional two years lapsed before St. John filed suit to have the mobile home removed as the original petition is file-stamped March 29, 2001.
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158 Conn. 359 (1969)
VINCENZO VIOLA
v.
LIQUOR CONTROL COMMISSION
Supreme Court of Connecticut.
Argued June 4, 1969.
Decided July 1, 1969.
KING, C. J., ALCORN, HOUSE, THIM and RYAN, JS.
*360 Vincent J. Dowling, for the appellant (plaintiff).
Stephen J. O'Neill, assistant attorney general, with whom, on the brief, was Robert K. Killian, attorney general, for the appellee (defendant).
ALCORN, J.
The defendant liquor control commission, after hearing, denied the plaintiff's application for a cafe permit at 84 Union Place in Hartford. The commission acted under authority of § 30-46 of the General Statutes, the material portion of which provides that "[t]he commission may, except as to a store engaged chiefly in the sale of groceries, refuse to grant permits for the sale of alcoholic liquor if it has reasonable cause to believe:... (3) that the number of permit premises in the locality is such that the granting of a permit is detrimental to public interest, and, in reaching a conclusion in this respect, the commission may consider the character of, the population of, the number of like permits and number of all permits existent in, the particular town and the immediate neighborhood concerned, the effect which a new permit may have on such town or neighborhood or on like permits existent in such town or neighborhood...." The commission stated as the reason for its action "UNSUITABILITY OF PLACE BECAUSE The Commission finds that the granting of a CAFE PERMIT at this location would be detrimental to public interest, because of the number of like permits and the number of all permits existent in the immediate neighborhood." The Court of Common Pleas rendered judgment dismissing *361 the plaintiff's appeal from the commission's action, and the plaintiff has taken the present appeal from that judgment.
The essential facts are not in dispute. The plaintiff now holds a tavern permit at the same location. The surrounding neighborhood is commercial. There are no residential accommodations other than hotels. The premises face the railroad station, and there are three bus terminals and several light manufacturing establishments in the immediate neighborhood. Within a radius of 1500 feet from the premises there are nine other liquor outlets, one of which operates under a restaurant permit for beer only, one under a cafe permit, two under hotel permits and five under restaurant permits. The plaintiff's tavern permit constitutes the tenth liquor outlet in the area, and the total number of permit locations would be unaffected by either a grant or a denial of the plaintiff's application.
The court below considered the appeal on the record of the proceedings before the commission, and the sole question before it was whether the commission's decision was arbitrary, illegal or so unreasonable as to constitute an abuse of discretion. Spadaro v. Liquor Control Commission, 150 Conn. 68, 72, 186 A.2d 76. The burden of proof was on the plaintiff. Balog v. Liquor Control Commission, 150 Conn. 473, 475, 191 A.2d 20.
The issue presented is a narrow one. The plaintiff's position is that the commission abused its discretion in denying the application for the reason stated because the cafe permit which is sought is "like" only one other cafe permit in the area and the total number of all permits would be unaffected by the granting of his application. The defendant, on the other hand, claims that the term "like" permits, *362 as used in General Statutes § 30-46, refers to permits which are substantially similar rather than to permits which are identical. The similarity relied upon by the defendant hinges principally on the number of permit premises within the area which may serve all types of liquor for consumption on the premises. The cafe permit, originally created by No. 365, § 2, of the 1967 Public Acts (now General Statutes §30-22a), allows the retail sale of alcoholic liquor to be consumed on the premises. "Alcoholic liquor" as defined by § 30-1 of the Liquor Control Act (General Statutes c. 545) includes alcohol, beer, spirits and wine. Liquor outlets operating under a hotel permit (§30-21) or a restaurant permit (§30-22) may also sell alcoholic liquor for consumption on the premises. The times during which sales may be made are the same for each of the three types of permit. Beyond these likenesses, however, the similarity between cafe, hotel and restaurant permits vanishes. See, for example, General Statutes §§30-1(9), (17), (23); 30-22(4); 30-22a; 30-41; 30-76; 30-93. The wide variation in permit fees and in the permissible activities makes it neither reasonable nor logical to say that cafe, restaurant and hotel permits can be said to be "like" permits.
The arguments of the parties seem to be based on the assumption that the commission stated two distinct reasons for its action, namely, (1) the number of like permits and (2) the number of all permits. We do not read the stated reason in that fashion. "Because of the danger to the public health and welfare inherent in the liquor traffic, the police power to regulate and control it runs broad and deep, much more so than the power to curb and direct ordinary business activity." Ruppert v. Liquor Control Commission, 138 Conn. 669, 674, 88 A.2d 388. In furtherance *363 of that regulatory power, the statute vests the commission with a liberal discretion. Aminti v. Liquor Control Commission, 144 Conn. 550, 552, 135 A.2d 595. Moreover, the exercise of that discretion must be tested in the light of the fact that the Liquor Control Act, of which § 30-46 is a part, "contains the suggestion that harm from the sale of liquor, as it relates to place or person, is a matter of special knowledge acquired, or to be acquired, by the liquor control commission". Biz v. Liquor Control Commission, 133 Conn. 556, 560, 53 A.2d 655.
It was the duty of the commission under § 30-46 to refuse to grant this permit if it had "reasonable cause to believe ... that the granting of a permit... [would be] detrimental to public interest." In reaching that conclusion, the commission was directed by the statute to consider various factors including "the number of like permits and number of all permits existent in ... the immediate neighborhood."
The commission concluded that the granting of a cafe permit at the location would be detrimental to the public interest "because of the number of like permits and the number of all permits" in the neighborhood. (Emphasis supplied.) The reason given is conjunctive. The decision could be stated in another way, namely, that it would be detrimental to the public interest to have, within a radius of 1500 feet in this commercial area, two cafe permits among the ten existing liquor outlets rather than the two outlets restricted to the sale of beer as at present.
We cannot say, as a matter of law, that the commission abused the wide discretion vested in it in arriving at such a conclusion. "It was contemplated by the legislature that the commission might draw the line somewhere, and we see nothing arbitrary or *364 illegal in the ruling of the commission, supported as it is by the judgment of the trial court, that this was a point at which it might be drawn." Biz v. Liquor Control Commission, supra, 562.
There is no error.
In this opinion the other judges concurred.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-7184
RANDY WILLIFORD,
Plaintiff - Appellant,
versus
WILLIAM D. CATOE; RALPH S. BEARDSLEY,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Joseph F. Anderson, Jr., District
Judge. (CA-96-1699-17AK, CA-96-1700-17AK)
Submitted: January 9, 1997 Decided: January 23, 1997
Before HALL and MICHAEL, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Randy Williford, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant, a South Carolina inmate, appeals the district
court's order denying relief on his two 42 U.S.C. § 1983 (1994)
complaints under 28 U.S.C. § 1915(d) (1994), amended by Prison
Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996).
We have reviewed the record and the district court's order accept-
ing the magistrate judge's recommendation and find that this appeal
is frivolous. Accordingly, we dismiss the appeal on the reasoning
of the district court. Williford v. Catoe, Nos. CA-96-1699-17AK;
CA-96-1700-17AK (D.S.C. July 12, 1996). 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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340 F.2d 913
UNITED STATES of America, Plaintiff-Appellee,v.Donald Morgan JONES, Defendant-Appellant.
No. 14547.
United States Court of Appeals Seventh Circuit.
Dec. 17, 1964, Rehearing Denied Feb. 8, 1965.
F. Willis Caruso, Chicago, Ill., for appellant.
Edward V. Hanrahan, U.S. Atty., Richard T. Sikes, Asst. U.S. Atty., Chicago, Ill., for appellee, John Peter Lulinski, John Powers Crowley, Asst. U.S. Attys., of counsel.
Before DUFFY, KNOCH and CASTLE, Circuit Judges.
CASTLE, Circuit Judge.
1
Donald Morgan Jones, the defendant-appellant, and James Michael Cummings, were convicted, following a trial before the court without a jury, of possession of a sawed-off shotgun in violation of 26 U.S.C.A. 5851. The indictment alleged their joint possession of the firearm and that it had been made in violation of 26 U.S.C.A. 5821. Jones was sentenced to imprisonment for a period of five years. Only Jones appealed.
2
The shotgun, which was introduced in evidence at the trial, was found in the trunk of the automobile from which the defendant was taken on the occasion of his arrest. The defendant contends the District Court erred in denying his motion to suppress the evidence so obtained on the grounds of illegal search and seizure and that the evidence is insufficient to establish his possession of the gun. Thus the contested issues presented by the defendant's appeal are (1) whether the arresting officers had probable cause to effect the arrest and therefore conduct a lawful search of the automobile incidental thereto; and (2) whether the evidence, viewed in a light most favorable to the government, establishes defendant's participation in possession of the shotgun.
3
In connection with the first issue the record discloses evidence that at about 1:00 A.M. on August 1, 1963, two police officers of the Village of Hazel Crest, Illinois, en route in a marked police vehicle in response to a report of a disturbance, were stopped by government witness, Frank Church, a resident of Hazel Crest, known to one of the officers who had met him on several occasions. Church informed the officers that two men, armed with pistols and a sawed-off shotgun, were in an auto described by Church, parked in a parking lot adjacent to the American Legion Post, and were waiting to kill him. Acting upon this information the officers summoned other suburban police for assistance and proceeded to the parking lot where they found an automobile, as described by Church, occupied by two men. Cummings was in the front seat and the defendant was discovered lying on the rear seat. A search of Cummings, after he emerged from the car, disclosed a fully loaded pistol. Jones was observed with his hand reaching behind the seat cushion, and as he was pulled from the car, the barrel and stock parts of a shotgun were observed. The officers proceeded to search the car for the shotgun. It was found in the trunk. A fully loaded automatic pistol was found between the rear seat cushion and the backrest.
4
The search here, unlike that in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, relied upon by defendant, was contemporaneous with the apprehension and arrest of the defendant and Cummings. And the information upon which the officers acted was furnished by a person known to one of them as a local resident he had met on other occasions. The information detailed the threat of a felony about to be committed upon the person of Church, the existence of the means to accomplish it, and the continued possession of those means-- a sawed-off shotgun-- was, under the circumstances related, basis for reasonable belief that such possession constituted a felony in and of itself.1 In our opinion the facts and circumstances here involved constituted 'probable cause' which justified the officers in making the arrests, and the search was incidental thereto. Although the officer's acquaintance with Church may have involved no previous tests of the latter's reliability the record reveals nothing which makes it unreasonable for the officer to have placed credence in the information Church gave him.2 And, in dealing with the existence of probable cause we must advert to those factual and practical considerations of everyday life on which reasonable and prudent men act. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879.3 And, the alleged possession of an illegal weapon, secreted in a movable vehicle, in the early morning hours was here involved. The remaining portions of such a weapon-- the sawed-off parts of the barrel and the stock were observed on the seat or floor of the automobile as the defendant was pulled from the car. The necessity of securing a warrant, under these circumstances, would be as naive and impracticable as it would have been in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.
5
We conclude that the arrests were lawful and the contemporaneous search incidental thereto was not unreasonable. It is unreasonable searches that are prohibited by the Fourth Amendment. Carroll v. United States,supra. The question of the reasonableness of a search must find resolution in the facts and circumstances of the particular case. United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653; United States v. Zimmerman, 7 Cir., 326 F.2d 1.
6
We turn to consideration of the sufficiency of the evidence to establish defendant's participation in the possession of the sawed-off shotgun. It is true the record does not disclose the defendant ever personally handled the weapon. But there is evidence that during the afternoon and evening preceding his arrest there were discussions between the defendant and Cummings and Church concerning participation in a 'job' involving a South Bend, Indiana, bank. Both defendant and Cummings were armed with pistols. It was decided to procure a third weapon. The defendant participated in a search for handguns Cummings had previously secreted in a junk yard at Hammond, Indiana. When the search proved unfruitful it was decided to make a sawed-off shotgun from a shotgun Cummings had at his apartment. A hack saw was procured and all three returned to Cummings' apartment. The defendant left, and Cummings and Church effected the alteration of the shotgun, cutting off the barrel and stock. When defendant returned the shotgun was placed in the trunk of the automobile by Cummings in the presence of the defendant; the severed parts were placed on the back seat; and all three drove to the parking lot which was near Church's residence. Church left the car, stating that he was going to shave and change clothes and would return shortly.
7
The sawed-off shotgun was procured and placed in Cummings' automobile for a common purpose-- the 'job' for which the occupants of the car had assembled. In our opinion the record amply established the defendant's knowing participation in the possession of the weapon. And that is sufficient. Cf. United States v. Spatuzza, 7 Cir., 331 F.2d 214. And, certainly, Cummings was in no manner controlling his shotgun so as to prevent its use by the defendant. The purpose of the presence of the weapon was a joint one and under the circumstances here presented it is but reasonable to infer a joint control, care and management in which the defendant participated. We perceive nothing in United States v. Landry, 7 Cir., 257 F.2d 425, relied upon by defendant, which requires a different conclusion. Arellanes v. United States, 9 Cir., 302 F.2d 603 is distinguishable on the facts. The defendant there was in an automobile with her husband but there was nothing to indicate she participated in the concealment of or had knowledge of the marihuana found in a door panel and under a seat.
8
Attorney F. Willis Caruso, a member of the Illinois Bar, ably represented the defendant in this Court pursuant to our appointment. We express our appreciation to him for his service in this assignment.
9
The judgment order of the District Court is affirmed.
10
Affirmed.
1
Possession of a shotgun so altered without payment of a $200.00 tax in advance of the alteration and the filing of a declaration of intent to so alter is a violation of 26 U.S.C.A. 5851
2
Whether the information given was true in all of its details is of no import
3
Unlike Beck v. Ohio, 85 S.Ct. 223 (1964) the police officer in the instant case not only named and identified the informer, a person known to him, and disclosed the information given, but the informer also testified as to what he told the officer
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734 S.W.2d 263 (1987)
STATE ex rel., Keith E. STOECKER, Plaintiff-Appellant,
v.
DIRECTOR OF REVENUE, Defendant-Respondent.
No. 52020.
Missouri Court of Appeals, Eastern District, Division Three.
July 28, 1987.
Eric J. Snyder, Clayton, for plaintiff-appellant.
*264 Jeffrey R. Dahl, St. Louis, for defendant-respondent.
KAROHL, Judge.
Relator for writ of prohibition in circuit court attempts to appeal to this court from dismissal of preliminary writ. Appeal dismissed.
The underlying facts are not in dispute. Respondent administratively suspended relator's drivers license pursuant to Section 302.500-540 RSMo Cum Supp.1984 because relator was arrested by a municipal law enforcement officer on November 17, 1985 for violation of a city ordinance regarding an intoxication related traffic offense. Respondent determined that there was probable cause to believe that relator was driving a motor vehicle with alcohol concentration in his blood of .13% or more by weight. That determination was upheld in an administrative hearing. The petition for writ of prohibition filed in the circuit court contends that respondent never ascertained whether the arresting law enforcement officer was certified with the Commissioner of the Department of Public Safety pursuant to the provisions of Section 590.100-590.150 RSMo. 1978 nor whether he was an exempt officer or an elected police officer or official. Respondent further alleged that there was no evidence before the administrative hearing officer who proceeded according to Section 302.530 RSMo Cum Supp.1984 that the arresting officer was certified, exempt from certification, or an elected police officer. The only evidence at the administrative hearing was the file of the Department of Revenue. The Verified Report of Arresting Officer in respondent's files contains the following: "I am certified, or exempt from certification, by the Director of The Department of Public Safety..." The administrative hearing officer made no finding of fact or conclusion of law that the arresting officer was certified, exempt or elected. Relator relies specifically on Section 302.510.3 which provides that a municipal ordinance prohibiting driving while intoxicated may not be the basis for suspension or revocation of a driver's license under the administrative procedure "unless the arresting law enforcement officer, other than an elected peace officer or official, has been certified by the Director of the Department of Public Safety pursuant to the provisions of Section 590.100 to 590.150, RSMo." The petition for writ of prohibition proceeds on the theory that absent a finding of qualification of the arresting officer, respondent exceeds his statutory authority to suspend or revoke a driver's license.
On the basis of the petition for writ of prohibition the circuit court granted a preliminary order in prohibition. Respondent filed an answer [sic, a return]. Respondent admitted an arrest based upon probable cause relating to blood alcohol concentration. The answer also asserted that the verified officer's report, a sworn statement, contains a statement to the effect that the officer was certified or exempt under Sections 590.100-150 RSMo 1978; that respondent had an adequate and exclusive remedy at law under Section 302.535, RSMo Cum Supp.1984; and, on the authority of State ex rel. King v. Kinder, 690 S.W.2d 408 (Mo. banc 1985) the trial court had no jurisdiction to prohibit enforcement of the suspension. Respondent also filed a motion to dismiss on the basis that the court lacked subject matter jurisdiction because of the provisions of Section 302.535 RSMo Cum Supp.1984 and the holding in Kinder.
The trial court sustained the motion to dismiss on the basis that the preliminary order in prohibition was granted in excess of the court's subject matter jurisdiction. Clearly the court did not determine any question of fact or law on the merits of any issue raised in the petition for writ of prohibition. Under these circumstances we hold no appeal lies from the order of dismissal.
There is some authority allowing an appeal from the denial of a permanent writ of prohibition after a preliminary writ has been issued. We held in State ex rel. Charter Bank of Jennings v. O'Toole, 638 S.W.2d 321 (Mo.App.1982) that an appeal from an order of a trial court quashing a preliminary writ of prohibition was not *265 timely filed and dismissed the appeal. We there said, "[t]he order of the trial court quashing the preliminary writ is appealable. State ex rel. River Cement Co. v. Pepple, 585 S.W.2d 122 (Mo.App.1979) [1]." Id. at 322.
In State ex rel. River Cement Co. v. Pepple, the circuit court entered a preliminary writ of prohibition upon an administrative law judge in a workman's compensation proceeding. Relators appealed from an order quashing the preliminary writ. We noted that the order was appealable on the authority of State ex rel. Karmi v. VonRomer, 562 S.W.2d 112 (Mo.App.1978) and State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App.1970). The administrative law judge had ordered the employer to allow claimant employee's attorney, a technical expert and a photographer to enter the premises of employer for the purpose of preparing the presentation of a worker's compensation claim. The issue was whether or not the order was authorized as a method of discovery under the Worker's Compensation Act. We found the Missouri Rules of Civil Procedure relating to discovery generally do not apply to workman's compensation cases, but affirmed the order of the circuit court. The reason for affirming was that the claimant sought relief under penalty provisions of the Worker's Compensation Act contained in Section 287.120(4), RSMo Supp. 1978 and the only way to prove violation of statutes which supported penalty relief depended upon a power to inspect. In order to fully enforce all the provisions of the Worker's Compensation Act an inspection as ordered by the administrative law judge was required. This was an appeal from the denial of an absolute writ based upon a decision on the merits.
State ex rel. Karmi v. VonRomer, 562 S.W.2d 112 (Mo.App.1978) cited in the Pepple opinion involved an appeal from an order quashing an alternative writ of mandamus. Because writs of mandamus and prohibition are both discretionary writs the question of appealability would be the same. Relator Karmi sought an order of mandamus upon the St. Louis County Council that they decide an issue relating to a petition to abandon or vacate part of a street. The County Council defended on the basis that the writ was not a proper remedy since it constituted an attempt to interfere with acts which were discretionary and not merely ministerial. We held that the trial court erred in quashing the provisional writ because we found the County Council had discretion to vacate or not to vacate a road, but was not authorized to refuse to exercise its discretion. The council had a duty to consider and reach a decision on the petition. In Karmi, the trial court determined an issue on the merits and concluded that prohibition would not lie to compel a discretionary act. We found that determination on the merits to be erroneous.
The case authority which appears to have originated the conclusion that the denial of an absolute writ after the issuance of a preliminary writ is appealable is the decision in State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App.1970). In that case the court decided an issue which is not before this court and which stands unquestioned. The court held that no appeal lies from the denial of a provisional writ. It did not hold that an appeal lies from the denial of a writ absolute after an alternative writ has been granted. That issue was not before the court. The analysis leading to the holding is relevant to the present appeal. In Brandon v. Hickey, the court returned to the basic premise that the right of appeal shall be as provided by law. Under Section 512.020 RSMo 1979 appeals were authorized only to those parties aggrieved by "any final judgment in the case." Such judgment must be final and appealable, it must dispose of all parties and all issues in the case and leave nothing for further determination. In a writ proceeding the alternative writ "corresponds to the petition in an ordinary civil suit, and it is the alternative writ, and not the petition therefor, to which a respondent makes his return." Brandon, 462 S.W.2d at 160. It follows that the denial of the alternative writ, for whatever reason, decides no issues and cannot be a final judgment within the meaning of the statute or rule authorizing *266 appeals. It also follows that if an alternative writ is granted and a return is filed, the issues are joined so that a court may make a decision on the merits as a final judgment if it determines all the issues in the case and leaves nothing for further determination. This decision then becomes an appealable judgment. We conclude that it does not follow that dismissal after an alternative writ without a decision on the merits is a final and appealable judgment.
In the present case the court decided no issues relating to the merits. It dismissed upon a finding that it had no jurisdiction to prohibit respondent Director of Revenue from suspending relator's driver's license as provided by statute where relator had a statutory remedy in the form of a trial de novo. Section 302.535 RSMo Cum Supp.1984. Because there is an available remedy under the statute dismissal of the writ proceeding does not deny relator a remedy. In this respect the dismissal is not the same as a dismissal for failure to state a cause of action. The latter is appealable. Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App.1985). Because of the difference and the requirements of Section 512.020 RSMo 1986 the latter is not appealable.[1]
In summary, no appeal lies from the denial of a provisional writ of prohibition or mandamus. An appeal will lie from the denial of a permanent writ after the issuance of an alternative writ if the denial is based upon a decision on the merits and qualifies as a final judgment. No appeal lies from the dismissal of a writ proceeding in which an alternative writ has issued where dismissal is based upon a determination of lack of jurisdiction to issue the provisional writ. The appeal is dismissed.
PUDLOWSKI, P.J., and CRANDALL, J., concur.
NOTES
[1] See, Section 508.060 RSMo 1986; and, Redeker v. Bradbury, 680 S.W.2d 403, 405 (Mo.App.1984) which held the proper method to attack dismissal for lack of venue is not by appeal. The remedy in such case and the present case is a writ to a higher court.
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46 F.2d 671 (1931)
STATION WBT, Inc.,
v.
POULNOT, Sheriff, et al.
No. 509.
District Court, E. D. South Carolina.
January 17, 1931.
*672 George L. Buist, of Charleston, S. C. (Buist & Buist, of Charleston, S. C., and John W. Van Allen, of Buffalo, N. Y., on the brief), for plaintiff.
Cordie Page, Asst. Atty. Gen., and J. Fraser Lyon, of Columbia, S. C. (John M. Daniel, Atty. Gen., on the brief), for defendants.
Before PARKER, Circuit Judge, and COCHRAN and GLENN, District Judges.
ERNEST F. COCHRAN, District Judge.
The plaintiff brought suit to enjoin the defendants from enforcing collection of taxes on radio sets under the provisions of the Act of the Legislature of South Carolina of March 31, 1930 (36 St. at Large, p. 1292). An application has been made for an interlocutory injunction before a court of three judges, in accordance with the provisions of section 266, Judicial Code (U. S. Code, title 28, § 380 [28 USCA § 380]). The facts as developed at the hearing of the application are substantially as follows:
The plaintiff is a corporation under the laws of the state of New York; has its principal place of business at Charlotte, N. C.; and owns and operates a radio broadcasting station at Charlotte under license of the Federal Radio Commission. The defendants are all residents and citizens of South Carolina. Plaintiff's plant or operating system is roughly valued at about $100,000. It has a "normal audience" embraced within a circle determined by a radius of 200 miles from the city of Charlotte that includes practically all of the state of South Carolina. Its gross annual income is about $125,000, primarily from advertisers. Of this about $5,000 is from advertisers seeking to reach a South Carolina audience exclusively. About $105,000 is from advertisers seeking to reach the entire "normal audience," including the South Carolina audience; and about $15,000 is from advertisers seeking to reach an audience exclusive of South Carolina. Approximately one-third of its "normal audience" is in South Carolina. The value of the right to communicate with the South Carolina portion of its audience is placed by the plaintiff at $50,000. There are more than 50,000 radio receiving sets in South Carolina in actual use and operation.
The proofs show that the art of radio broadcasting consists in transmitting electro-magnetic waves set in motion by electricity at a station and passing through space to numerous receiving instruments. The essential elements in such communications consist of the transmitter, the connecting medium or "ether," and the receiving mechanism. The electro-magnetic waves move at the speed of light, and it is impracticable to confine them, at least in the present state of the art, within state lines. The receiving mechanism or receiving set detects the on-coming radio waves, and amplifies them into audible sound. All radio communication, anywhere in the United States, travels actually or potentially across state lines, and even if certain radio electric wave energy, through an accident or otherwise, should lose its force before crossing the state line, yet it potentially interferes with other radio communication passing interstate. Congress has assumed control of all communications by radio, acting through the Federal Radio Commission, which actively and continuously supervises all such communication. The South Carolina Radio Tax Act was approved March 31, 1930, and took effect immediately upon its approval. For several months the Tax Commission made no serious effort to enforce the tax, merely receiving such payments as were voluntarily made, without molesting those persons who elected to stand on their constitutional rights, or who otherwise failed or refused to pay the tax. But the commission then determined upon a policy of drastically enforcing the act and putting into effect the penalizing provisions; and thereupon the plaintiff brought this suit, alleging that the tax imposed by the act was a burden upon interstate commerce and in conflict with the Constitution of the United States. The act provides that for the privilege of owning or operating a radio receiving set, an annual license tax ranging from one dollar to two dollars and a half, varying with the value of the set, shall be paid. Every person who fails or refuses to make the return or to pay the tax required by the act is subject to a penalty of $50. The taxes imposed are made a first preferred lien upon every receiving set and the commission is authorized to issue execution, under which the set may be levied upon and sold in the manner provided for delinquent taxes. All persons engaged in the sale, barter, or exchange of radio receiving sets are required to keep a record thereof, and for failure to keep such record are subject to a penalty of not more than $100 or imprisonment of not more than *673 thirty days. The act provides that the proceeds of the taxes and penalties shall be used for the buildings, equipment, and permanent improvement of the State Tuberculosis Sanatorium. The act makes no provision for the recovery of the taxes upon payment thereof, nor is there any other provision of South Carolina law which authorizes a recovery.
The first question is whether this court has jurisdiction of the cause. There exists diversity of citizenship and the case also arises under the Constitution of the United States. The only question therefore is whether the amount in controversy exceeds $3,000.
The bill seeks an injunction to protect the right of the plaintiff to engage in interstate commerce without unlawful interference. That right is the subject of the controversy. In such cases, the jurisdictional amount is not to be tested by the mere immediate pecuniary damage resulting from the acts complained of, but by the value of the business to be protected, and the wrong to the property rights which the complainant seeks to have recognized and enforced. Hunt v. New York Cotton Exchange, 205 U. S. 322, 27 S. Ct. 529, 51 L. Ed. 821; Bitterman v. L. & N. R. Co., 207 U. S. 205, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693; Berryman v. Whitman College, 222 U. S. 334, 32 S. Ct. 147, 56 L. Ed. 225; Glenwood, etc., Co. v. Mutual, etc., Co., 239 U. S. 121, 36 S. Ct. 30, 60 L. Ed. 174; Western & A. R. Co. v. R. Comn. of Ga., 261 U. S. 264, 43 S. Ct. 252, 67 L. Ed. 645; Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596. Cf. Scott v. Donald, 165 U. S. 107, 17 S. Ct. 262, 41 L. Ed. 648.
When we consider the value of the plaintiff's plant, its gross annual income, the ratio of its South Carolina audience to its "normal audience," and the amount received from advertisers seeking to reach the South Carolina audience exclusively, we have no difficulty in reaching the conclusion that the value of the plaintiff's right to communicate with the South Carolina portion of its audience is in excess of $3,000. Cf. Berryman v. Whitman College, supra. See, also, the other decisions cited above.
The next question is whether the plaintiff has any standing to attack the constitutionality of the act in question. No tax is laid upon the plaintiff or upon its business or any property owned by it. The tax is laid upon receiving sets owned by the various persons who compose a part of plaintiff's audience, and who may be in a sense styled the plaintiff's customers. It is true that the constitutionality of an act cannot be assailed by one who is not directly affected by the act; and, as a general rule, no person in any business has such an interest in possible customers as to enable him to restrain the exercise of proper power of the state upon the ground that he will be deprived of patronage. But there are numerous decisions of the Supreme Court which lead, in our opinion, inevitably to the conclusion that the plaintiff may maintain its action if the tax in question is found to be unconstitutional.
Hammer v. Dagenhart, 247 U. S. 251, 38 S. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724, arose under the Federal Child Labor law. Congress, under its power to regulate interstate commerce, undertook to forbid the shipment in interstate commerce of the products of child labor. The bill was filed by a father in his own behalf, and as next friend of two minor sons, employees in a cotton mill. The Supreme Court held that the act was unconstitutional, and affirmed the decree of the District Court enjoining its enforcement. It is true that in that case the point whether the plaintiffs were in position to attack the law was not directly decided or considered. But it is hardly likely that the Supreme Court would have decided a law unconstitutional without considering the question of the right of the plaintiffs to attack it, if there was any serious doubt about such right. The case is therefore very persuasive for the view that they did have the right. Hammer v. Dagenhart, 247 U. S. 251, 38 S. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724.
Pierce v. Society of the Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468, arose under the Oregon Compulsory Education Act, which, with certain exemptions, required every parent, etc., to send children of certain ages to the public schools. The plaintiffs in those cases were corporations engaged in education, with property rights and interests which were threatened by the enforcement of the act. The Supreme Court held that the act was unconstitutional and that the plaintiffs' business and property were threatened with destruction through the unwarranted compulsion which was exercised by the state authorities over the present and prospective patrons of their schools; and their rights would be protected by injunction. Pierce v. Society of the Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468.
*674 Buchanan v. Warley, 245 U. S. 60, 38 S. Ct. 16, 62 L. Ed. 149, L. R. A. 1918C, 210, Ann. Cas. 1918A, 1201, involved an ordinance forbidding colored persons to occupy houses in a block occupied in the major portion by whites. A white man contracted with a colored man to sell him property within the inhibited zone, with a clause relieving the purchaser if it should prove illegal to occupy the property. The white man sued to enforce the contract, claiming that the ordinance was unconstitutional. Objection was made that the denial of the constitutional right involved only the rights of colored persons; but the Supreme Court held that the property rights of the white man were directly and necessarily involved, and the ordinance was declared unconstitutional. Buchanan v. Warley, 245 U. S. 60, 38 S. Ct. 16, 62 L. Ed. 149, L. R. A. 1918C, 210, Ann. Cas. 1918A, 1201.
In Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 9, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283, there was involved the constitutionality of an act of Arizona prohibiting the employment of more than a certain percentage of aliens by any employer employing five or more persons. The plaintiff was informed by his employer that by reason of the requirements of the law and because of the fear of the penalties which would be incurred in case of its violation, he would discharge him from service upon the law going into effect; and for that reason, alone, his services being perfectly satisfactory. The alien brought an action against the state officers to restrain the enforcement of the statute, joining his employer as a party defendant. It was urged that the defendant could not sue, save to redress his own grievances; that the servant could not complain for the master; and that it was the master who was subject to prosecution and not the plaintiff. The Supreme Court said, however:
"The act undertakes to operate directly upon the employment of aliens, and if enforced would compel the employer to discharge a sufficient number of his employees to bring the alien quota within the prescribed limit. It sufficiently appears that the discharge of the complainant will be solely for the purpose of meeting the requirements of the act and avoiding threatened prosecution under its provisions. It is, therefore, idle to call the injury indirect or remote. It is also entirely clear that unless the enforcement of the act is restrained the complainant will have no adequate remedy, and hence we think that the case falls within the class in which, if the unconstitutionality of the act is shown, equitable relief may be had."
The court therefore held that the plaintiff could maintain an action and sustained his contention that the act was unconstitutional. Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283.
In Savage v. Jones, 225 U. S. 501, 32 S. Ct. 715, 56 L. Ed. 1182, the plaintiff manufactured in Minnesota certain products which he sold and shipped to retailers in Indiana, where the product was sold by them in the original package. A statute of Indiana required of every person selling or offering such products for sale in that state to file certain statements and certificates; that there should be affixed to every package a label of the contents, etc., with penalties for noncompliance. The plaintiff brought his suit against the state officers to enjoin them from prosecuting the persons selling his products. The position was taken that the plaintiff showed no ground of equitable relief, as no action was threatened against him. The statute was held constitutional, but the right of the plaintiff as having a standing in the court of equity was sustained. The court held that the sale and shipment by plaintiff to his purchasers in Indiana constituted interstate commerce in the freedom of which from any unconstitutional burden he had a direct interest, and that the protection accorded to this commerce by the federal Constitution extended to the sale by the receiver of the goods in the original packages; and that an attack upon this right of the importing purchasers to sell in the original packages bought from the plaintiff not only would be to their prejudice, but inevitably would inflict injury upon the plaintiff by reducing his interstate sales; a result to be avoided only by compliance with the act by filing the statement and affixing the labels it requires. The court concluded that the plaintiff was entitled to relief against enforcement, if the demands were illegal. Savage v. Jones, 225 U. S. 501, 32 S. Ct. 715, 56 L. Ed. 1182.
We have been unable to distinguish the case at bar in principle from the cases cited. Here the plaintiff was engaged in interstate commerce. The value of its business is impaired, and if the amount of the tax should be increased, may be destroyed, by unlawful exactions made upon the owners of radio receiving sets. The power to tax is the power to destroy. If the state can lay a small tax, it can lay a tax which would be prohibitive. The direct and necessary result of the imposition *675 of the tax in question is to impair the value of the plaintiff's business and a heavier tax might destroy it entirely. We are constrained to hold therefore that the plaintiff's property rights are directly affected by the tax in question, and it has a standing in a court of equity to protect its rights.
It has not been contended that the plaintiff has any adequate remedy at law. It is perfectly apparent that no matter how much the tax may impair the plaintiff's property rights, or even if its business should be utterly destroyed, it would have no remedy at law for damages or otherwise. The law makes no provision by which any one can pay the tax and recover it. But even if it did provide that the owner might pay the tax and recover it, nevertheless it would be utterly impracticable for the plaintiff to arrange with the various owners of more than 50,000 radio sets and pay the tax for them. Such a course would involve such a multiplicity of suits and be so enormously expensive as to be practically prohibitive. But it is unnecessary to pursue this branch of the subject any further. There is no remedy at law provided for any person whose rights may be violated by this act.
There can be no doubt that communications by radio constitute interstate commerce. It has been so held by numerous courts, and the decisions of the Supreme Court of the United States defining interstate commerce necessarily lead to that conclusion. Gibbons v. Ogden, 9 Wheat. 1, 189, 6 L. Ed. 23; Pensacola Tel. Co. v. Western Union Teleg. Co., 96 U. S. 1, 24 L. Ed. 708; Blumenstock Bros. Adv. Agency v. Curtis Pub. Co., 252 U. S. 436, 40 S. Ct. 385, 64 L. Ed. 649; Western Union Tel. Co. v. Speight, 254 U. S. 17, 41 S. Ct. 11, 65 L. Ed. 104; Whitehurst v. Grimes (D. C.) 21 F.(2d) 787; General Electric Co. v. Federal Radio Comn., 58 App. D. C. 386, 31 F.(2d) 630; U. S. v. American Bond, etc., Co. (D. C.) 31 F.(2d) 448, 454; Technical Radio Laboratory v. Federal Radio Comm., 59 App. D. C. 125, 36 F.(2d) 111, 66 A. L. R. 1355; City of New York v. Federal Radio Comm., 59 App. D. C. 129, 36 F.(2d) 115.
The plaintiff contends that all radio communication is necessarily interstate, and in the present state of the art, this appears to be correct. However, it is not inconceivable that radio communication may in the future be so perfected that it may be confined strictly intrastate; but we do not consider it necessary to make any ruling upon that point now. Certainly under the facts of the present case, the plaintiff, through its broadcasting plant, is engaged in interstate commerce. The receiving sets in South Carolina are essential to the reception of the communications by the South Carolina audience. In other words, the receiving sets are absolutely essential instrumentalities of the interstate commerce in which the plaintiff is engaged.
The only question remaining is whether the state has the right to lay a tax upon these instruments of interstate commerce. Under the numerous decisions of the Supreme Court there can be only one answer. Those decisions hold that Congress has the power to regulate interstate commerce; that that power is necessarily exclusive whenever the subjects are national in their character or admit only of one uniform system or plan of regulation; and that where the power of Congress to regulate is exclusive, the failure to regulate indicates the will that it shall be left free from any restrictions or impositions; and any regulation of the subject by a state, except in matters of local concern, is repugnant to such freedom, and that no state can compel a party, individual, or corporation to pay for the privilege of engaging in interstate commerce, and that a state has no power to lay any burden in any form, by taxation or otherwise, upon interstate commerce or its instrumentalities. Robbins v. Taxing Dist. of Shelby County, 120 U. S. 489, 7 S. Ct. 592, 30 L. Ed. 694; Lyng v. Michigan, 135 U. S. 161, 10 S. Ct. 725, 34 L. Ed. 150; Crutcher v. Kentucky, 141 U. S. 47, 11 S. Ct. 851, 35 L. Ed. 649; Atlantic & P. Tel. Co. v. Philadelphia, 190 U. S. 160, 23 S. Ct. 817, 47 L. Ed. 995; Minnesota Rate Case 1913, 230 U. S. 352, 396, 397, 33 S. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18; Barrett v. State of New York, 232 U. S. 14, 34 S. Ct. 203, 58 L. Ed. 483; City of Sault Ste. Marie v. International Transit Co., 234 U. S. 333, 34 S. Ct. 826, 58 L. Ed. 1337, 52 L. R. A. (N. S.) 574; Lemke v. Farmers, etc., Co., 258 U. S. 50, 42 S. Ct. 244, 66 L. Ed. 458; Real Silk Hosiery Mills v. Portland, 268 U. S. 325, 45 S. Ct. 525, 69 L. Ed. 982.
The tax in question cannot be sustained under those cases which hold that the state has a right to impose an ordinary property tax upon property having a situs within its territory and employed in interstate commerce; for here the tax is not a general property tax, but a license tax for the privilege of using an instrument of interstate commerce. Nor can it be sustained as a matter of local regulation, for the subject is national, and admits only of one uniform system *676 or plan of regulation. Nor can it be sustained as a police regulation with an incidental tax to pay the expenses of the regulation, for it has no elements of police, and, moreover, the tax is frankly devoted to the uses of a state institution. Nor can it be sustained as in aid of interstate commerce, nor on the ground that its effect is merely incidental. The tax here is directly laid upon a necessary instrument of interstate commerce, imposes a burden upon that commerce, and the act of the Legislature imposing it is therefore in conflict with the Constitution of the United States, and null and void.
Interlocutory injunction granted.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7194
MACARTHUR DAVIS,
Petitioner - Appellant,
versus
GEORGE M. HINKLE, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Jackson L. Kiser, Senior District
Judge. (CA-98-248-R)
Submitted: January 12, 1999 Decided: March 4, 1999
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
MacArthur Davis, Appellant Pro Se. Thomas Drummond Bagwell, Assis-
tant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
MacArthur Davis seeks to appeal the district court’s order
denying relief on his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 1998). We have reviewed the record and the district
court’s opinion and find no reversible error. Accordingly, we deny
a certificate of appealability and dismiss the appeal on the rea-
soning of the district court.* See Davis v. Hinkle, No. CA-98-248-
R (W.D. Va. July 7, 1998). We dispense with oral argument because
the facts and legal contentions are adequately presented in the ma-
terials before the court and argument would not aid the decisional
process.
DISMISSED
*
We agree with the district court’s denial of relief on the
merits, but express no opinion concerning its discussion of the
limitations issue.
2
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475 F.2d 129
Frederick H. MURRAY et al., Plaintiffs-Appellants,v.WILSON OAK FLOORING CO., INC., a corporation, Defendant-Appellee.
No. 71-1353.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 22, 1973.Decided March 5, 1973.Rehearing March 30, 1973.
David Ruttenberg, Chicago, Ill., for plaintiffs-appellants.
James T. Ferrini, Stephen D. Marcus, Chicago, Ill., for defendant-appellee.
Before SWYGERT, Chief Judge, CUMMINGS and SPRECHER, Circuit Judges.
SWYGERT, Chief Judge.
1
This appeal concerns a diversity suit in tort. Plaintiff, Frederick H. Murray, appeals from a judgment non obstante veredicto entered on motion of the appellee, Wilson Oak Flooring Co., Inc. The sole issue presented is whether the district court, on the facts of the case, properly granted a judgment notwithstanding the verdict. Both sides agree that the law of Illinois governs the resolution of this issue.
2
* The facts are undisputed for the most part. The plaintiff was the owner of a small brick residential property located in Chicago. On the evening of October 3, 1969, Murray was preparing to install a parquet-wood flooring on a portion of the second floor of this building, pursuant to a plan for overall remodeling. He planned to use Latex "45" Adhesive to hold the flooring in place. Both the flooring and the adhesive had been received by Murray as a gift from the Kingston Tile Company, one of his business associates. Kingston, however, neither manufactured nor was the primary distributor of these items; both, instead, bore the label of Wilson, for whom the adhesive was manufactured on a private label basis by the Chicago Mastic Corporation.
3
Affixed to the five-gallon can of Latex "45" Adhesive were two labels, one of which, bright red and diamond shaped, set forth its message in boldface black letters having the following content, size and arrangement:
4
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
5
Another label was affixed to the opposite side of the can. White with red lettering, it set forth, in part, this message:
6
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
7
Prior to spreading any of the mastic, Murray thoroughly familiarized himself with the contents of these labels.
8
The second floor of the Wieland building was in the shape of an elongated rectangle. The front one-third of the floor was comprised of a living room, a work room and an entry hall; the middle one-third contained a combination billiards and dining room, a kitchen, and a storage-utility room. Murray planned to install parquet floor on the area described by the entry hall and the billiards-dining room, which he realized would require the spreading of adhesive on the floor adjacent to the kitchen and the storage-utility room. The following floor plan, taken from an exhibit introduced at trial, indicates the arrangement of these areas; the crosshatched section represents part of the area which Murray intended to cover with parquet flooring:
9
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
10
The kitchen, linked to the billiards-dining room by a doorless cased opening, contained a built-in stove and oven, each of which was fitted with pilot lights: two for the stove and one for the oven. Housed in the storage-utility room were a furnace and a water heater, both gassupplied and furnished with single pilot lights. Unlike the kitchen, however, this room was separated from the billards-dining area by a door, nailed into place and tightly fitted into the door frame except at the bottom, where a horizontal gap existed about the width of a finger. On the night of October 3, all of the pilot lights servicing these various appliances were lit and functioning, with the possible exception of the furnace light.
11
Murray was aware of this fact when he began to apply adhesive to the front-most portion of the entry hall at approximately 6:00 P.M. on October 3. Three hours later he had applied adhesive to most of the area he intended to cover with flooring, working his way from his starting point back toward the kitchen and bathroom. The area was not entirely covered, however. Murray left himself an eight to ten inch path along the wall separating the billiards-dining area from the kitchen and storage-utility room, evidently to allow his return to the front of the apartment without having to tread on wet adhesive. Unfortunately, this path was never used. While on his knees near the bathroom door, facing the front of the building and nearly finished with applying mastic, Murray heard an explosive noise, later described by him as a "whompf". This was accompanied by a bright orange flame, which Murray first observed about five feet in front of him at a location marked by an "X" on the floor plan. In an ensuing fire, Murray sustained burns which resulted in his permanent injury.
12
This suit for damages followed. Evidence produced at trial established that the warnings placed on the can of Latex "45" Adhesive were not in conformance with either the Federal Hazardous Substances Labeling Act, 74 Stat. 372 (1960), or the Illinois Hazardous Substances Labeling Act, Ill.Rev.Stat. Ch. 111 1/2 Sec. 251 et seq. To comply with those Acts, a product having the combustibility of Latex "45"-equivalent to that of gasoline-would have required labeling which read "danger" rather than "caution" and "extremely flammable" rather than "inflammable".
13
The evidence also established that the fire was caused when combustible vapors from the adhesive came in contact with one of the lit pilot lights, the most likely candidate being the pilot light of the water heater in the storage-utility room. Expert witnesses for both sides testified that Latex "45" emits a heavy and highly combustible vapor capable (1) of traveling for some distance along a floor from the point at which the mastic is spread, (2) of burning with explosive force upon encountering any form of exposed flame, and (3) of transmitting that flame back to the body of spread adhesive. Thus the water heater pilot was chosen as the most likely site for generating the explosion not only because it was substantially closer to the mastic than the stove pilot lights but because it was much nearer to the floor than the pilot lights on the stove, and therefore more likely to contact low-lying vapors easily capable of traveling under a door.
14
After hearing all of the evidence, the jury in the cause returned a verdict in favor of Murray, and assessed damages against Wilson in the sum of $20,429.00. Wilson then filed a motion for a judgment in its favor non obstante veredicto which was granted by the district judge. He based his decision on the following facts:
15
[T]he plaintiff Frederick H. Murray admitted on the trial that at the time of the occurrence there were burners blazing and that he knew they were there. The product was plainly marked as inflammable. Said plaintiff's action was clearly a contributing cause of the explosion and fire that occurred, and he was therefore guilty of contributory negligence herein.
16
By "blazing burners" we take the judge to have meant the various pilot lights adjacent to the applied mastic.
II
17
We have carefully considered the evidence in this case, and conclude that the trial judge erred in entering a judgment non obstante veredicto for Wilson. Perhaps the most crucial fact relevant to our decision is the presence of the word "near" in the primary warning on Wilson's adhesive can, a term which we think must be taken to modify subordinate warnings on the same level. The most important of these is the recitation: "Do not smoke-Extinguish flame-including pilot lights." (emphasis added). Reexamining the floor plan introduced as evidence in this case, and taking the evidence at its worst for Murray, it would appear that he spread mastic to within four or five feet of the water heater pilot light and within seven to eight horizontal feet of the stove pilot lights. These figures allow for the eight to ten inch path Murray left for his return to the front of the apartment.
18
We cannot say as a matter of law that the term "near" was sufficient to inform Murray that his spreading of adhesive within four feet of a pilot light located behind a closed door and within eight feet of stove pilot lights three feet off the floor exposed him to the risk of an explosion and attendant fire damage. All of the evidence, when viewed in its aspect most favorable to Murray, fails to "so overwhelmingly [favor] movant [Wilson] that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 510, 229 N.E.2d 504, 514 (1967). Nearness is a matter of degree. To the president of Wilson, "near" included the entire house in which an application of Latex "45" Adhesive was taking place. The reasonable man, we think, would disagree. Thus, whether "near" fairly encompassed the door and distances of this case was a question for the jury.
19
This is not to say that no separation could be too small to foreclose a jury from ruling on the scope of the term "near". Two cases decided by this court recognize the existence of a threshold gap below which a judgment n. o. v. becomes appropriate. In Moschkau v. Sears Roebuck & Co., 282 F.2d 878 (7th Cir., 1960), we upheld a judgment n. o. v. where the evidence showed that the plaintiff, an experienced carpenter, had brought combustible adhesive to within eighteen inches of stove burners serviced by lit pilot lights. The limits of Moschkau were tested six years later in Borowicz v. Chicago Mastic Co., 367 F.2d 751 (7th Cir., 1966), where we held that judgment n. o. v. was appropriate against an experienced carpenter who had left a can of inflammable mastic within three feet of stove pilot lights. In both cases the adhesive was the same type as that which caused the fire here, and the respective containers were labeled with warnings analogous in content to those set out herein. In neither case was the separation between the mastic and flame blocked by a solid impediment.
20
Of the two cases, Borowicz is undoubtedly the closest to the facts of this case; here mastic was applied within perhaps four feet of a lit pilot light, there the distance was three feet. A controlling distinction, however, is that Murray laid down mastic in a room that was separate and apart from the room where the flame was located, a separation made more complete by the interposition of a sturdy door. With respect to the kitchen pilot lights, seven or eight feet of horizontal distance and approximately three feet of vertical distance separated them from the mastic, a gap which is not, we think, the equivalent of a three foot distance without vertical separation for the purposes of a judgment n. o. v.
21
Lastly, we note two other distinctions which, though not of themselves controlling, further serve to distinguish Borowicz and Moschkau: (1) in neither case was any evidence adduced, as here, to establish a case of prima facie negligence on the part of the defendant by failure to comply with industry-wide standards of warning, and (2) Murray was not an experienced carpenter with extensive practice in using the material causing the accident complained of.
III
22
We must go further, however, than distinguishing Borowicz and Moschkau. In the years since those decisions, the Illinois Supreme Court has made a significant revision in the law of Illinois dealing with judgments n. o. v. and directed verdicts. The case was Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 229 N.E.2d 504 (1967), which announced the standard earlier referred to in this opinion:
23
In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. 37 Ill.2d at 510, 229 N.E.2d at 513-514.
24
Wilson urges, first, that this standard represents a marked easing of the prior requirement of Illinois law respecting the grant of judgments n. o. v.; that is, that these are now easier to obtain than when Moschkau and Borowicz were decided. From this they argue that the factual distinctions of the present case from Moschkau and Borowicz are of insufficient importance to overcome that precedent when read in combination with Pedrick. Since Wilson's premise is faulty, however, we cannot accept this argument.
25
Prior to Pedrick, two different standards had governed two species of cases. In determining when questions of negligence and contributory negligence became questions of law, Illinois courts answered in the affirmative only when "all of the evidence, viewed in its aspect most favorable to the party against whom the court would rule, was such that reasonable minds would reach the same conclusion." Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 502, 229 N.E.2d 504, 509 (1967). In other types of cases, Illinois courts applied an "any evidence" test, granting directed verdicts or judgments n. o. v. only when all of the evidence in the case, considered in its light most favorable to the party against whom the court would rule, contained no evidence in favor of the nonmovant on an essential issue of the case. Pedrick eliminated both categories, and the standard it announced was designed to apply to all types of cases.
26
Did Pedrick make it easier to obtain a judgment n. o. v. in the former type of case, where a finding of contributory negligence as a matter of law is sought? We think not. Our chief support for this view lies in a comparison of the respective inadequacies of the two then-existent standards pointed out by the Pedrick Court. With respect to the "any evidence" standard, it was said:
27
[Neither] the any evidence rule [n]or any of its variants . . . is entirely satisfactory, for literal application thereof prohibits direction of a verdict even though the evidence relied upon in opposition is so over-whelmingly rebutted that no verdict based thereon could possibly stand. In such instances no action other than a directed verdict [or judgment n. o. v.] is consonant with efficiency in our judicial system and with a fair and expeditious termination of litigation. 37 Ill.2d at 510, 229 N.E. at 513.
28
The objection to the negligence, or "reasonable men," test was of a somewhat less pragmatic import:
29
Our dissatisfaction stems from the fact that there is at least a surface incongruity in a trial judge saying all reasonable men agree that the proof established the presence or absence of due care when 12 jurors have just reached a contrary conclusion. And it seems even more incongruous for reviewing courts to so state when the trial judge and jury reached the opposite result, when the trial and reviewing courts disagree or the members of a reviewing court disagree among themselves that such is the case. 37 Ill.2d at 510, 229 N.E.2d at 513.
30
It is thus apparent that the Illinois Supreme Court did not intend in Pedrick to make judgments n. o. v. any easier to obtain in negligence cases than had previously been the rule, while they did so intend in cases, unlike this one, which had earlier fallen under the "any evidence" rule.*
31
The judgment of the district court is reversed, and the case remanded with instructions to reinstate the verdict of the jury.
32
Cummings, Circuit Judge, dissents.
*
Of particular pertinence to this conclusion is the following excerpt from Pedrick: The fact that our "any evidence" rule has not always operated to the satisfaction of this court is manifest from the concurrent presence of the "reasonable men" test, and the fact that there are cases in which the evidence, when viewed in its entirety and in its aspect most favorable to the party against whom the court would rule, so overwhelmingly favors one party that an opposite verdict must always be set aside irrespective of the number of times the case may be tried even though some evidence exists which supports the verdict and satisfies the "any evidence" rule. Under such circumstances there is no real reason for trial judges to continue to submit the case to successive juries. . . . 37 Ill.2d at 504, 229 N.E.2d at 510. (emphasis supplied)
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559 F.2d 1222
U. S.v.Killingsworth
No. 77-5055
United States Court of Appeals, Sixth Circuit
6/30/77
1
W.D.Tenn.
AFFIRMED
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197 F.2d 771
In re TEXAS CITY DISASTER LITIGATION.
No. 13314.
United States Court of Appeals Fifth Circuit.
June 10, 1952.
Eberhard P. Deutsch, Sp. Asst. to Atty. Gen. of United States, New Orleans, La., and Massillon M. Heuser, Atty., Department of Justice, Washington, D. C., for the United States. With them on the brief were Atty. Gen. J. Howard McGrath, Deputy Atty. Gen. Peyton Ford, Asst. Attys. Gen. Holmes Baldridge and H. Graham Morison, and U. S. Atty. Brian S. Odem Houston, Tex., Sp. Asst. to Atty. Gen. George O'Brien John, Houston, Tex., Paul A. Sweeney, Morton Liftin, Sidney J. Machtinger, and Robert P. Breazeale, Attorneys, Department of Justice, Washington, D. C., and Brigadier General Claude B. Mickelwait, San Francisco, Cal., Lieutenant Colonel Burton K. Philips, St. Louis, Mo., and Captain Ralph L. Kaskell, Jr., Judge Advocate General's Corps, Jamaica, N. Y., United States Army.
Austin Y. Bryan, Jr., of Houston, Tex. argued the cause for the appellees. With him on the brief were Thomas Fletcher, John R. Brown, M. S. McCorquodale, Houston, Tex., Neth L. Leachman, Dallas, Tex., T. E. Mosheim and Vernon Elledge, Houston, Tex.
Before HUTCHESON, Chief Judge, HOLMES, BORAH, RUSSELL, STRUM, and RIVES, Circuit Judges, En Banc.
RIVES, Circuit Judge.
1
This litigation arises under the Federal Tort Claims Act.1
2
For an understanding of the questions presented, we quote the statement of the case as made by the learned district judge:
3
"These are approximately 273 suits (including the above suit No. C. A. 787, Dalehite, et al. v. United States of America) by approximately 8485 persons or Plaintiffs against Defendant, United States of America, under the Federal Tort Claims Act, Section 2671 et seq., Title 28, Judicial Code effective September 1, 1948, formerly Section 941, Title 28 U.S.C.A., Act of August 2, 1946, and Amendments, and arising out of what is generally known and referred to, and is referred to herein, as the Texas City Disaster, in which much of the City or Town of Texas City, in Galveston County, Texas, was destroyed, with great loss of life, injuries to persons, and heavy property damage. The claim is that on April 16, and 17, 1947, fires and violent explosions occurred on the Steamships Grandcamp and High Flyer then being loaded with a cargo for foreign ports in the Texas City Harbor. It is claimed that such fires and explosions, and/or other fires and other explosions, etc., which followed and which were proximately caused thereby, killed or caused the death of approximately 560 persons — men, women and children — and wounded many other persons in and around Texas City and in the Texas City Harbor, and did vast and widespread damage and injury to property in that area. Of the 8485 Plaintiffs, approximately 1510 sue on death claims, approximately 988 on personal injury claims, approximately 5987 on property damage or destruction claims.
4
"It is claimed and alleged that such fires and explosions were caused on the Grandcamp and the High Flyer by a cargo or part cargo of ammonium nitrate, or fertilizer ammonium nitrate, or FGAN (for brevity called herein Fertilizer), thereon becoming ignited and burning and/or exploding. It is alleged that such Fertilizer was a known dangerous explosive and a fire hazard and was manufactured by Defendant and shipped and transported by Defendant or directed or permitted by Defendant to be shipped or transported into Texas City without warning to the public or to any City, State, or other Officer of Texas City, and loaded on such Steamships. And that the Defendant and its agents and employees were guilty of negligence in so doing and also guilty of negligence in manufacturing such Fertilizer at all and in the manner of the manufacture, sacking, bagging, marking of bags, handling, shipping, transporting, loading, etc. of such Fertilizer.
5
"After these suits were filed, the parties, including those in the above case No. C. A. 787, Dalehite, et al. v. United States of America, moving under Rule of Civil Procedure 42, 28 U. S.C., with the approval of the Court, entered into an Agreement or Stipulation for such suits to be consolidated for hearing and heard or tried on the question or issue common to all parties, of the negligence of Defendant or of the liability, if any, of Defendant to Plaintiffs under such Tort Claim Act. Reference is made to the Order of Consolidation, etc., dated July 21, 1948, and other subsequent Orders of Consolidation.
6
"It appearing that the Plaintiffs in the 273 or more consolidated suits were represented by perhaps 50 or 100 different counsel, with approval of the Court, counsel for Plaintiffs in such suits agreed upon a Working Committee of Attorneys, whose names appear on the first page hereof, to prosecute such consolidated suit, and they have appeared and so prosecuted same.
7
"It was also agreed between the parties, in order that a complete case should be presented to the Court, that one of the consolidated cases, i. e., Cause No. 787, Elizabeth Dalehite and Henry G. Dalehite, Jr. v. United States of America, should be fully tried. This is a suit by the surviving wife and son of Captain Henry G. Dalehite, who it was alleged was killed in such Disaster.
8
"Each of the Plaintiffs in the suits filed and which were consolidated, as stated, alleges many and numerous acts of negligence upon the part of Defendant, all of which, to the number of 80 or more were carried into Plaintiffs' Consolidated Pleadings in this Consolidated Cause, filed March 16, 1949. It does not seem appropriate to set them forth in detail here, but reference is made to such pleadings for particulars and details. Generally speaking, it is charged and alleged that the Fertilizer which burned and/or exploded in such Steamships was a known very dangerous explosive and fire hazard which was manufactured by Defendant and/or under its direction. That such Fertilizer being a very dangerous commodity, Defendant was negligent in manufacturing it at all, and negligent in the manner in which it manufactured, handled, transported, shipped, etc., same. Particularly it is claimed that Defendant was greatly at fault and negligent in, without warning to anyone of the danger, shipping such Fertilizer or permitting it to be shipped into and handled in the densely populated city or town of Texas City, etc., where as stated such fires and explosions occurred.
9
"In a Trial Amendment, filed with leave of the Court, July 20, 1949, Plaintiffs more specifically allege and set out the names of the persons, agents, servants, or employees of the Defendant claimed to be guilty of negligence.
10
"Defendant in its Answer, filed April 4, 1949, brought forward some fifteen defenses.
11
"Its First Defense that Plaintiffs should be required to make a more definite statement of their case was denied.
12
"Its Second Defense that Plaintiffs fail to state a claim upon which relief may be had was denied.
13
"Its Third, Fourth, and Fifth Defenses that Plaintiffs in effect fail to state a case cognizable in this District were denied.
14
"Its Eighth and Ninth Defenses questioning the authority of the Working Committee were denied.
15
"Its Sixth and Tenth Defenses with respect to assigned claims, its Seventh Defense raising the question of Limitation, and its Fifteenth Defense pleading contributory negligence, etc. are not within the scope of the Consolidation Agreement and are, therefore, not disposed of at this time.
16
"By its Eleventh, Twelfth, Thirteenth and Fourteenth Defenses Defendant denies, and there is put in issue, each and all of Plaintiffs' allegations, and same are herein disposed of under such Consolidation Agreement.
17
"This is a trial on the merits under such Consolidation Agreement, lasting approximately 90 days, and on briefs and oral argument of counsel, and a trial on the merits of cause No. C. A. 787, Elizabeth Dalehite and Henry G. Dalehite, Jr. v. United States of America, on all issues.
18
"The Record is enormous. The Transcript consists of nearly 20,000 pages, and there are hundreds of exhibits. This would of itself tend to show that all the sources of evidence bearing on the questions and issues now before the Court have been thoroughly explored and all the evidence produced that can be found and produced, except as hereinafter stated. In addition, counsel on both sides, at the close of the trial, assured the Court that they had no other evidence to present on the matters now before the Court, except as hereinafter stated. The exception is that Plaintiffs are still complaining of the failure of the Court to again enforce the production of some additional records, etc. of and/or in the possession of, the United States Federal Bureau of Investigation, which records such Bureau refused to produce, as is fully shown by the Transcript.
19
"Counsel for Plaintiffs and Defendant have, at the Court's request, indicated what Findings of Fact they think should be made, but many of such requests for Findings are for Findings on evidence as distinguished from Findings on the issues as made by the pleadings. Such requests are hereinafter disposed of. An effort has been made to find the facts only on the issues, and thus bring the case within as small compass as possible."
20
On May 4, 1950, the court entered judgment in the composite case, with a decree as to amount with interest from the date of judgment in the one actual case, and a "final" decree as to liability, subject to certain reserved defenses and future determination of quantum, with interest from May 4, 1950, in all other suits.
21
The United States entered appeals in all cases. By order of this court, the appeal was heard on the record in the composite case alone.
22
The claimed errors of which the United States complains are succinctly set forth in its "Specification of Errors" as follows:
23
"Specification of Errors
24
"The district court erred:
25
"1. In failing to hold that the pleadings and proof furnished neither basis of jurisdiction in the district court nor liability against the United States under the Federal Tort Claims Act, for the reason that the claims asserted
26
"a. fell within specific exceptions under the statute, for claims based upon
27
"(1) `the exercise or performance, or the failure to exercise or perform, a discretionary function or duty'; or
28
"(2) `an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation'; and
29
"b. did not fall within the affirmative statutory requirements that claims be based upon
30
"(1) respondeat superior arising from an identifiable employee's negligent act or omission; and
31
"(2) an act or omission for which `a private individual under like circumstances' would be liable.
32
"2. In finding that, by the manufacture and distribution of FGAN, the United States `was creating and maintaining a nuisance'.
33
"3. In holding preliminary motions filed in behalf of the United States, for a deposition, discovery, interrogatories, more definite pleading, and for procedural rulings, in abeyance until it knew `more about the case'; and in its rulings thereon; in failing to rule on hundreds of objections to evidence noted by counsel for the United States, and in `taking them with the case'; and in denying the motion of the United States, at the close of plaintiffs' case, to rule on the objections, and to strike the inadmissible evidence, and in its ultimate rulings thereon.
34
"4. In holding the United States negligent in any way in the initiation of the ammonium nitrate fertilizer program, in the production and distribution of the fertilizer, or in connection with the activities of the Coast Guard.
35
"5. In holding that the `80 or more' charges of negligence against the United States as such were `all supported and sustained by the evidence', and that each of these `80 or more' acts and omissions `constituted a proximate cause' of the disaster.
36
"6. In holding that the United States was the shipper of the fertilizer on the Steamships Grandcamp and High Flyer, and the owner thereof at least up to the time of its loading, and `that control of and over such fertilizer never passed out of' the United States.
37
"7. In denying the motion for judgment in behalf of the United States at the close of plaintiffs' case, in refusing to make the findings proposed on behalf of the United States, and, while expressly reserving various defenses of the United States, in entering `final judgment' against the United States in the more than 300 cases pending, for `damages as later ascertained by the court, with interest on such figures so subsequently determined, from the date hereof.'"
38
The claimed errors may be broadly divided into three classes: (1) errors of substantive law in the interpretation of the scope of the Federal Tort Claims Act, (2) procedural errors, and (3) erroneous findings of fact on negligence.
39
If the plaintiffs have any right to recover damages from the United States, the case must come under the terms of the Federal Tort Claims Act, approved August 2, 1946, and, to be specific, must meet each of the following requirements of that Act:
40
1. The only jurisdiction conferred on the district court is of actions on claims "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S. C.A. § 1346(b).
41
2. "Under circumstances where the United States, if a private person, would be liable to the claimant." Sec. 1346 (b).
42
3. "In accordance with the law of the place where the act or omission occurred." Sec. 1346(b).
43
4. The jurisdiction conferred does not apply to "any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid." Sec. 2680(a).
44
5. Nor does it apply to "any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Sec. 2680 (a).
45
The purpose of the Act was not "the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence. * * * Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities." Feres v. U. S., 340 U.S. 135, 141, 142, 71 S. Ct. 153, 157, 95 L.Ed. 152.
46
"This Act does not subject the Government to a previously unrecognized type of obligation. Through hundreds of private relief acts, each Congress for many years has recognized the Government's obligation to pay claims on account of damage to or loss of property or on account of personal injury or death caused by negligent or wrongful acts of employees of the Government. This Act merely substitutes the District Courts for Congress as the agency to determine the validity and amount of the claims. It suggests no reason for reading into it fine distinctions between various types of such claims." U. S. v. Yellow Cab Co., 340 U.S. 543, 548, 71 S.Ct. 399, 404, 95 L.Ed. 523.
47
Repeatedly, throughout the Act, the term used is "act or omission of an employee of the Government". For any cause of action to exist, the "negligent or wrongful act or omission" must be that of an "employee of the Government". "Employee of the Government" is defined, at least in part, in Section 2671.
48
A judgment or compromise under the statute effects complete release of a claim, and a bar to an action "against the employee of the Government whose act or omission gave rise to the claim". Secs. 2672, 2676.
49
Section 424(b) of the original Act provided that nothing contained in the statute is to be deemed as repealing authority, under other provisions of law, to settle claims for damages "not caused by any negligent or wrongful act or omission of an employee of the Government."
50
Excluded from the jurisdiction of the Court are "any claim[s] based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation" and "any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government". For the Government to be held liable for the breach of any duty as an entity in the manufacture or shipment of FGAN, these two exclusions would have to be disregarded. The event around which the entire statute is built is an "act or omission of an employee of the Government", and for the statute to be construed as a harmonious whole it must be so limited. See Sickman v. United States, 7 Cir., 184 F.2d 616, 619; United States v. Campbell, 5 Cir., 172 F.2d 500, 503. This court has recognized that liability because of the ownership of property is not included in the Act. Hubsch v. U. S., 5 Cir., 174 F.2d 7, 10.
51
The necessity of some definite act of commission or omission on the part of some particular employee or employees of the Government as a predicate for its liability is emphasized by the requirement of Section 1346(b) that liability be determined "in accordance with the law of the place where the act or omission occurred." So construed, the Act merely subjects the Government to the same liability as the delinquent employee in accordance with the local law.
52
We have found no place in the legislative hearings where the liability of the United States as a manufacturer or shipper was discussed. Typical of the kind of immunity intended to be waived is that for injury or damage resulting from the negligent operation of motor vehicles repeatedly referred to in the hearings before the legislative committees (See for example Hearings before the House Judiciary Committee on H.R. 5375 and H.R. 6463, 77th Congress 2nd Session (1942), 24, 28, 65, 66). The most common claims that were the subjects of hundreds of relief acts were for injury or damage caused by negligent or wrongful acts of employees of the Government. Congress sought relief from the burden of determining the validity and amounts of such claims, and substituted the District Courts for Congress as the agency therefor. See United States v. Yellow Cab Co., 340 U.S. 543, 548, 549, 71 S.Ct. 399, 95 L.Ed. 523. Another reason why it cannot be assumed that Congress intended to place upon the United States the legal liability of a manufacturer as an entity, is that as such the Government would be charged with all of the knowledge or notice of any of its agents or employees, acquired or possessed in the course of their employment. See 1 Am. Law Inst. Restatement of Agency, Sec. 272; 13 Am.Jur. Corporations, Secs. 1110 et seq. The evidence in this case illustrates that the application to the Government of that theory of imputed knowledge would require the Government to be regarded as practically omniscient, and probably, in the many cases where employees differ in their opinions, as being an infallible judge of the right. It would impose on the Government as manufacturer an unreasonably high degree of duty, almost to the point of being an insurer. Upon consideration of the terms of the Act, we conclude that it imposed no duty on the Government as an entity in the manufacture or shipment of FGAN.
53
Plaintiffs, in their consolidated complaint, failed to charge any specific negligent or wrongful act or omission against any particular employee or agent of the United States, simply resting on their eighty averments of negligence on the part of the United States as such. On July 20, 1949, the day on which they rested in the taking of testimony, the plaintiffs filed an amendment to their consolidated complaint, charging that various departments of government, from the Office of War Mobilization to the Bureau of Standards, some 200 named or designated officials, and others, "the remaining federal agencies, executive departments, [and] independent establishments of the United States" and "the head of [each] such department and all subordinate personnel whether civilian or military" all contributed to "each ground of negligence and fault alleged in plaintiff's consolidated pleadings * * *." Plaintiffs' counsel well summarized in his closing argument to the district court: "It is the whole Government. It is everybody in organization. Everybody from the President to dishwashers in the cafeteria."
54
The district court in its findings said in part:
55
"The difficulty is that this large Record shows that in the error and mistake of manufacturing and distributing this dangerous commodity, so many took part that in naming them some will be overlooked or omitted. They may well be grouped as follows:
56
"Group I — Those who, among other things negligently planned, launched, and carried on the enterprise of manufacturing, shipping, and distributing such Fertilizer. Among this group are the following: * * *
57
"Group II — Those who among other things negligently manufactured, sacked, shipped, transported, and distributed such Fertilizer. Among this group are the following: * * *
58
"Group III — The United States Coast Guard, officers and men who may have been among other things charged with some duty with respect to such Fertilizer at the time of and after its arrival at Texas City and at the time of and after its explosion and the fires which followed. And including those charged with the duty of administering and enforcing Title 46 U.S.C. A., dealing with the shipment of dangerous explosives. Some of whom are as follows: * * *
59
"It is not meant that these groups or the members of these groups were negligent in the same way or to the same degree, but that they in some way and to some extent contributed to such negligence by acts of omission or commission."
60
The district court named some 160 persons as among these three groups.
61
Let us consider separately the three groups of employees:
62
"Group I — Those who, among other things, negligently planned, launched and carried on the enterprise of manufacturing, shipping, and distributing such fertilizer."
63
The fertilizer program was designed to meet the immediate and pressing problem of increasing the food supply of the devastated areas of the world following the holocaust of World War II. Two basic solutions were available: One, maintenance of adequate military forces of occupation to quell unrest resulting from hunger; Two, the increase of the supply of food to sustain enemy populations during occupation. Humanitarian considerations required that at least subsistence feeding be provided to the people of conquered areas to insure public order and safety. The populations of the devastated areas aggregated nearly that of the United States themselves. If there had been enough food to supply those areas directly there would not have been enough bottoms to transport it. Early in 1947 the President expressed his views "that our relief contribution should be used only for providing the basic essentials of life, such as * * * items which will aid in the production of foodstuffs." Message of President Truman to 80th Congress (1st Session), 93 Cong. Record 1301.
64
While fertilizer production in the United States was the greatest in the world, the minimum requirement for the devastated areas was more than half the United States production. There was discussion of the production of ammonium sulphate which would have been desirable but the facilities for such production were not available. Ammonium nitrate was decided upon as the only type of fertilizer which could be produced in sufficient quantities. There were available a number of wartime ordnance plants, idle with the close of hostilities, and readily convertible to the production of fertilizer grade ammonium nitrate.
65
The Act does not apply to "any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Sec. 2680(a). This is a "highly important exception". H. Report 1287, 79th Cong., 1st Session, 1945, pp. 5 & 6. As Judge Woodrough, speaking for the Eighth Circuit, pointed out in Coates v. United States, 181 F.2d 816, 817, 818, 19 A.L.R.2d 840, "the term `discretionary function or duty' has a long history of precise meaning in a legal sense". It was meant "to continue to exclude judicial authority from interference with lawful legislative and executive action". See also 56 Yale Law Journal, p. 545.
66
In the fields open to litigation before this Act was passed in 1946, such as suits against municipal corporations, against individual public officers, and suits before the Court of Claims, the courts had devised various legal formulas by means of which they scrupulously refrained from unwarranted interference with the legislative and executive departments of Government. As to municipal corporations see Barnes v. District of Columbia, 91 U.S. 540, 551, 23 L.Ed. 440; Harris v. District of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146; 38 Am.Jur., Municipal Corporations, Sec. 578. As to public officers see State of Louisiana v. McAdoo, 234 U.S. 627, 633, 34 S.Ct. 938, 58 L.Ed. 1506; Standard Nut Margarine Co. of Florida v. Mellon, 63 App.D.C. 339, 72 F.2d 557; 43 Am.Jur. Public Officers Secs. 278-9. As to suits on contracts before the Court of Claims see Horowitz v. U. S., 267 U.S. 458, 461, 45 S. Ct. 344, 69 L.Ed. 736. The Act did not adopt the old distinction between Governmental activities of a sovereign nature and those of a proprietary nature. See Cerri v. U. S., D.C., 80 F.Supp. 831, 833; Somerset Seafood Co. v. U. S., 4 Cir., 193 F.2d 631. Instead, in line with its consideration of particular acts or omissions of employees of the Government, the Act drew a sharp focus on the jurisdictional exclusion, and forbade the courts to review "the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government".
67
The addition to this exception of the terms "whether or not the discretion involved be abused" clearly evidences the intention of Congress that the legislative and executive branches of Government were to be free from any unwarranted judicial supervision. It is not necessary to determine how far Congress might have gone under the Constitution. It is sufficient to observe that in this Act the Congress prescribed limits in line with the wise and ancient landmarks that date from our earliest judicial history. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 170, 2 L.Ed. 60. Much the same public policy forbids the courts to exercise jurisdiction over discretionary functions or duties of executive officers as protects the Government from being sued for the errors of the courts themselves in the exercise of their discretionary functions — See Cromelin v. U. S., 5 Cir., 177 F. 2d 275. In this case, it can hardly be argued that the dangers of explosion from FGAN were so well known prior to the disaster that judgment or discretion were not called into exercise as to whether it should be manufactured at all and under what safeguards and warnings it should be distributed. Even if some danger were recognized, the necessity of providing means of existence to the devastated areas might have called for the exercise of discretion as to whether to take a "calculated risk".
68
The very conception of negligence involves weighing the magnitude of the risk against the utility of the act or the particular manner in which it is to be done. 2 Am. Law Inst., Restatement of Torts, Sec. 291. The authority to determine and consider the factors as to the utility of the conduct and the magnitude of the risk (see same text, secs. 292 and 293) was vested in the executive officers or agents and not subject to the review of the courts.
69
We are clear to the effect that the court had no jurisdiction to review many, if not all of the acts or omissions of employees within the first group because they were exercising or performing a discretionary function or duty. Sec. 2680(a).
70
"Group II — Those who among other things negligently manufactured, sacked, shipped, transported, and distributed such fertilizer."
71
The employees in this group also were vested with considerable discretion. The plaintiffs complained that the United States was negligent in allowing FGAN to be bagged at too high temperatures. Determination of bagging temperatures was clearly within the discretion of the proper officers. A suggestion was made to the Chief of Ordnance that it would be better practice to bag the product at 120 degrees Farenheit rather than at 200 degrees. The commanding officers at the ordnance plants reported that this procedure would reduce production to less than half of that demanded by the fertilizer program and the world situation; and that the paper bags were not being damaged by the current practice. This was nothing more nor less than the exercise of the discretionary function by reaching conclusions on balanced considerations for which the United States are exempt from liability "whether or not the discretion involved be abused". Like considerations show the United States to be exempt from liability for various other steps in the manufacture and shipment of the product, such as the coating used for the fertilizer and its shipment in bags made from paper.
72
Distribution was as essential to the use of FGAN as its manufacture, and both called for the overall and authoritative determination at the highest policy level of the existence and degree of any dangerous qualities and of what precautions and warnings were necessary. Once that discretionary function or duty had been exercised or performed there ordinarily would be no duty upon subordinate officers or employees to review or revise the exercise or the failure to exercise such discretion. Any contrary rule would make a program of such magnitude impossible of accomplishment. The subordinate officers or agents are protected in the performance of their duty according to the directions of those vested with the discretionary functions or duties. See Moore Ice Cream Co. v. Rose, 289 U. S. 373, 381, 53 S.Ct. 620, 77 L.Ed. 1265, and cases there cited. As said in Sickman v. United States, 7 Cir., 184 F.2d 616, 620, "There is no allegation that any government employee failed to exercise due care in carrying out the determinations made by those granted the discretionary function."
73
Many, if not all of the acts or omissions of employees in this group come also within the exception of "any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid". Sec. 2680(a). While the exercise of due care is required to come within this exception, the negligence or wrong cannot inhere in the statute or regulation itself but must be in some act or omission not expressly permitted thereby.
74
Under the War Mobilization and Reconversion Act of 1944, Act of October 3rd, 1944, Chapter 480, 58 Stat. 785, 50 U.S.C.A. War Appendix, § 1651 et seq. the Director appointed by the President was authorized to make plans "to meet the problems arising out of the transition from war to peace" and to "issue * * * orders * * * to executive agencies" for that purpose.
75
By executive order, Order No. 9599 dated August 20th, 1945, 10 Federal Register 10155, as amended by Executive Order 9651 dated October 31st, 1945, 10 Federal Register 13487, the President directed all departments and agencies "concerned with the problems arising out of the transition from war to peace * * * to assist in the maximum production of goods and services required to meet domestic and foreign needs", by using "war plants and facilities."
76
Upon approval at the highest governmental levels,2 and recommendations by the State and War Departments,3 appropriations for the fertilizer program were voted by Congress.4 The War Department was ordered to carry it out, and the wartime plants were released to the Secretary of War by the Director of the Office of War Mobilization and Reconversion, to provide facilities for the production, through independent contractors, of some 90,000 tons of Fertilizer Grade Ammonium Nitrate (FG AN) per month.
77
"The discretionary authority of the Secretary of War was delegated down to" his subordinates, and he directed the Chiefs of Ordnance and Transportation and the Quartermaster General to carry the program into effect. These, in turn, established Standard Operating Procedures (SOPs) covering all phases of, and steps in, the proposed operation from the commencement of manufacture to shipment.5
78
The plaintiffs were under the burden of proving that the employees of the Government were acting within the scope of their office or employment. Sec. 1346 (b). Perhaps for that reason, there was virtually no claim that in the execution of the fertilizer program there had been any departure from the regulations, directives and orders. That fact brought the case within an exception to the Act. 28 U.S. C.A. § 2680(a).
79
"Group III. The United States Coast Guard, officers and men, who may have been among other things charged with some duty with respect to such fertilizer at the time of and after its arrival at Texas City and at the time of and after its explosion and the fires which followed. And including those charged with the duty of administering and enforcing Title 46 U.S.C.A. dealing with the shipment of dangerous explosives."
80
Some, if not all, of the duties of employees within this group come within one or the other of the exceptions to the Act already discussed.
81
The Act further limits the jurisdiction of the district court to cases involving "circumstances where the United States, if a private person, would be liable" 28 U.S. C.A. § 1346(b); and provides that the test of allowable claims is that governing liability of "a private individual under like circumstances". 28 U.S.C.A. § 2674.
82
The Supreme Court has held that recovery will be denied in cases in which "plaintiffs can point to no liability of a `private individual' even remotely analogous to that which they are asserting against the United States." Feres v. United States, 340 U.S. 135, 141, 71 S.Ct. 153, 157.
83
There are no functions of private individuals comparable to those with which the Coast Guard is charged by statute. As to such functions of the Coast Guard, therefore, there can be no "liability `under like circumstances,' for no private individual has power to conscript or mobilize a private army", Feres v. United States, 340 U.S. 135, 141, 71 S.Ct. 153, 157, or a Coast Guard which is "a branch of the armed forces of the United States at all times" 14 U.S.C.A. § 1. Furthermore, the evidence does not establish that the Coast Guard failed to perform any duty required of it under the circumstances.
84
The findings of the district court do not specifically relate to any employee of the United States any particular negligent or wrongful act or omission not within one of the exceptions to the Act. The district court took notice of the enormous length of the record and that, except for some records in the possession of the Federal Bureau of Investigation called for by plaintiffs and for the deposition of a witness denied to the defendant, all of the evidence had been produced that could be found or produced. From an examination of the record, we are of the opinion that the proof does not establish a case within the scope of the Federal Tort Claims Act, and that it would serve no useful purpose to remand this case for the taking of additional evidence.
85
The judgment of the district court is therefore reversed and judgment here rendered for the defendant.
86
Reversed and rendered.
Notes:
1
60 Stat. 842, reenacted in the codification of Title 28 (Judicial Code), 62 Stat. 869, 992. The rights of parties under the original enactment are preserved. See United States v. Yellow Cab Co., 340 U.S. 543, 547, footnote 4, 71 S.Ct. 399, 95 L. Ed. 523. For convenience we shall refer to the sections of Title 28 of the Code, though we call attention to an apparent inconsistency between the scope of Sections 2674 and 1346(b) which inconsistency does not appear in the terms of the original Act
2
Secretary of War Patterson "reported in substance this decision to the Cabinet" where it was "approved and the decision was to go ahead with this production."
3
Hearings before House Subcommittee on War Department Appropriation Bill, H. R. 3550, 79th Cong., 1st sess., p. 51; Public Law 126, approved July 3, 1945, 59 Stat. 384, 404
4
See Military Appropriation Act, 1947, approved July 16, 1946, Public Law 515, 79th Cong., 60 Stat. 541, 560, and Hearings before the Subcommittee of the Senate Committee on Appropriations, held June 25, 1946, on H. R. 6837, especially memorandum by Secretary of War Patterson (p. 7), and testimony by General Eisenhower (pp. 16, 28), and Assistant Secretary Peterson (p. 85). "There is hereby authorized to be appropriated to the President not to exceed $350,000,000 for the provision of relief assistance to the people of countries devastated by war, such relief assistance to be limited to * * * fertilizer * * *". Public Law 84, 80th Cong., 61 Stat. 125, 22 U.S. C.A. § 1411 et seq
5
"Standard Operating Procedures for the War Department Fertilizer Grade Ammonium Nitrate Program", "Plan for Ammonium Nitrate Production Program". "Standing Operating Procedure (Office of Quartermaster General) Distribution of Ordnance Produced Fertilizer Grade Ammonium Nitrate"
87
STRUM, Circuit Judge (concurring specially).
88
I am in accord with the view that the Tort Claims Act confers no jurisdiction upon the courts to review or supervise the executive or legislative departments in the performance of their discretionary functions, and that the Act does not apply to "the exercise or performance or the failure to exercise or perform a discretionary function or duty". [28 U.S.C.A. § 2680.] I am further of the view, however, that when even a discretionary duty or function is undertaken, due care must be exercised in its performance, failing in which the United States is liable for the acts of its employees, within the scope of their authority.
89
Whether or not a project shall be undertaken, or the policies to be followed in executing it, may be discretionary, and as to those things there is no liability or review under the Tort Claims Act. But if a discretionary project is undertaken, then the United States is held to due care, to the same extent as a private individual. So it is here. The government need not have undertaken the manufacture of FGAN at all. Whether or not it did was discretionary, and it would be subject to no liability for declining. Having undertaken the function, however, it is held to due care in its performance, even though it had a discretionary choice as to whether it would undertake it.
90
Though the complaint asserts that there was a failure to exercise due care in the manufacture, labeling, and handling of the FGAN, and in failing to give warning of its explosive character, the allegations in that respect clearly are not supported by the evidence. There is no evidence of any circumstance which would indicate to a reasonably prudent person that fertilizer grade ammonium nitrate (FGAN) would be likely to explode, due to its inherent qualities, if dealt with in a normal manner. It did not explode here under normal conditions, but only when too closely confined on the ships, with which the United States had nothing to do.
91
The government was manufacturing, not an inherently dangerous explosive such as gun powder, dynamite, or the like, but fertilizer which was safe if dealt with normally. The evidence is that ammonium nitrate is not inherently an explosive, but that it becomes explosive only when combined with other explosive compounds, such as T. N. T., or other nitrated organic bodies. When not combined with substances such as these, it constitutes only a fire hazard. In other words, it will burn but not explode. There is no evidence that in the manufacturing, sacking, or transportation of this FGAN to shipside, there was any failure to use ordinary and reasonable care. Nor did the FGAN explode while being transported in railroad cars to shipside.
92
It is also clear to me that the explosion was due, not to the inherent qualities of the FGAN, but to faulty stowage on the ships, a delinquency not chargeable to the United States. The United States is not an insurer here. It is held only to the exercise of reasonable care. The paper sacks containing this FGAN were plainly labeled in large letters: "Fertilizer-Ammonium Nitrate-Nitrogen 32.5%." This was sufficient to put the ship operators on notice as to the nature of the substance they were handling. The evidence definitely and firmly convinces me that the proximate cause of the explosion was not the inherent nature of the fertilizer, nor any lack of due care in its manufacture, labeling, or transportation to shipside, but that it was improperly stowed in too compact a mass, confined between decks, so that the rising temperature produced by such faulty stowage caused it to explode. The United States is not chargeable with the faulty stowage. As stated, the bags were clearly labeled "Fertilizer-Ammonium Nitrate-Nitrogen 32.5%." It is true that the bags were not labeled "Explosive." But there was no known instance of a previous explosion of FGAN under normal conditions. This explosion was wholly unprecedented. Prior to this disaster, there had been no known instances of explosions during land transit, while in stowage awaiting export, in the many shiploads previously shipped overseas, nor in this FGAN while part of it was stacked at the Texas City Terminal awaiting loading.
93
The finding of the district court that the explosion was due to the inherently dangerous character of the FGAN, and that it was the duty of the United States to have given a more adequate warning of its dangerous character, is clearly erroneous. Although there may be some evidence to support the finding, the evidence when appraised as a whole creates with me "the definite and firm conviction" that the United States was not guilty of negligence, but that the negligence which caused the explosion was wholly and solely that of the ship operators, who were not agents of the United States. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 765, 766.
94
In cases where a manufacturer has been held liable for the explosion of some bottled or canned product, or for damage caused by some other processed product, liability has always been conditioned upon the normal handling or use of the product. Where, as here, the product has been subjected to some abnormal treatment, such as stowing this fertilizer too compactly in a confined space between decks, the abnormal treatment, not the inherent qualities of the product, is the proximate cause of the damage. In such circumstances, there is no liability upon a "private party" manufacturer, hence none upon the United States.
95
Nor is there any basis in the evidence upon which the United States can be charged with negligence because of acts or omissions of the Coast Guard in the circumstances shown.
96
As there is no claim that there is any other evidence which would change the result, there would be no advantage in remanding the cases for a new trial. I therefore concur in the judgment of reversal, and in the rendition of judgment here for the United States.
97
HUTCHESON, Chief Judge, with whom BORAH, Circuit Judge, joins Concurring in part and Dissenting in part:
98
I concur in the view of the majority that the judgments appealed from cannot stand and must be reversed.
99
I dissent, however, from the reasons given for the reversal and also from the rendition of the judgments for defendant.
100
Of the clear opinion that the judgments should be reversed and the causes remanded for a retrial, freed from the errors that attended the former trial, I am, as briefly as possible, stating the reasons for my opinion.
Appellants' contentions
101
Appealing on an enormous record from judgments based on profuse, prolific, and sweeping findings, all of which, stemming from the basic conclusion of the district judge,1 taken together, give blanket support to all of plaintiffs' contentions and reject all of those advanced by it, defendant below, appellant here bases its case for reversal on three broad propositions.
102
The first of these propositions is that the case made, taken at its best for plaintiffs, is not sufficient to fasten liability upon defendant for the reason that what is complained of as a tort, for which the United States has made itself liable by statute, is not such, and, since the basis of the liability must be found in the statute, plaintiffs cannot recover.
103
In support of this fundamental theory, the appellant takes two positions. The first is the affirmative one, that the claims asserted are negatived by the act as they fall within specific exceptions from the reach of the statute, that is, they are claims based upon (1) "the exercise or performance or the failure to exercise or perform a discretionary function or duty"; or (2) "an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation". The second is the negative one that the claims asserted are not brought within the affirmative requirements of the act that claims must be based upon (a) "respondeat superior arising from an identifiable employee's negligent act or omission"; and (b) "an act or omission for which `a private individual under like circumstances' would be liable."
104
The second of appellant's propositions is further subdivided into two. One of these is that, assuming that the case pleaded and sought to be made is one which, if made out, would entitle plaintiffs to recovery, the judgment was wrong and must be reversed and rendered, because: (a) the defendant had nothing to do with, and was in no way responsible for, the material after it had been loaded on the cars; (b) the evidence shows as a matter of law that the title and control of the material had passed from the defendant when the accident occurred; and (c) as matter of law no negligent act of an employee of the defendant is shown which would, if defendant were a private person, make him liable.
105
The other is that, if the judgments are not to be reversed and rendered, they must be reversed and remanded, because the findings convicting defendant's employees are clearly erroneous. In support of this view, the appellant insists: that the force and effect of the testimony, considered as a whole is convincing that the findings are so against the great preponderance of the credible evidence that they do not reflect, or represent, the truth and right of the case. Sanders v. Leech, 5 Cir., 158 F.2d 486. Or, putting it as the Supreme Court has put it in United States v. U. S. Gypsum Co., 333 U.S. at page 395, 68 S.Ct. at page 542, "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."
106
Appellant's third proposition, which is, in treatment, necessarily intertwined with its second above, is that the method and manner of the trial including particularly the advocative violence of the committee, so infected the case with error that instead of having its liability vel non determined in the calm judical atmosphere of a trial, in which appellant was accorded its full procedural rights, and the members of the committee were held to those, to which they were entitled, this was determined in an atmosphere of bickering and contention and by the use of trial procedures which denied it a fair trial. It insists, in short, that the trial was permitted to go so out of bounds2 that the findings cannot be approved, the judgments cannot stand.
Appellees counter contention
107
Appellees take full issue with appellant on these propositions. On the first proposition, their position is that the terms of the statute and the decisions of the Supreme Court and of the Courts of Appeals, in effect declare that the liability of the United States, in connection with the fertilizer involved in this case, was, and is, properly measured by the liability controlling a private manufacturer of, what appellees say was, an inherently and imminently dangerous, and ultra hazardous, material and commodity.
108
Insisting that the statute in authorizing suit did not limit the right to sue except as precisely set out in the exceptions, appellees particularly urge upon us that since the statutory exceptions do not specifically exclude liability as a manufacturer, appellant's position on this point is without basis. Pointing to the broad terms of Sec. 2674, Title 28, "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances", appellees insist: that the United States must be held liable in the case of manufactured articles as a private manufacturer would be; and that, since a manufacturer is held liable without fault for putting dangerous articles on the market, which cause injury, the United States must also be held liable without fault. In the alternative, they argue that if it is necessary to prove fault in the sense of negligence or wrong doing on the part of individuals, they have proven this by pointing out the derelictions of named persons in regard to the manufacture and shipping, the labelling for shipping, and the failure to advise persons who might come in contact with the fertilizer of its dangerous character. So insisting, they say that it is immaterial whether liability without fault is imposed here, as is imposed upon manufacturers of dangerous articles, or liability is imposed for negligence of particular persons.
109
When it comes to appellant's second proposition, the state of the evidence, appellees insist: that the evidence is all one way on the issue of negligence; that in fact negligence is established as a matter of law; and that there is no credible evidence to the contrary. They insist, therefore, that the question of errors in the conduct of the trial or in the making of the findings must be disregarded as completely harmless, since, under the evidence, a verdict for them was demanded as a matter of law.
110
In the alternative, they urge: that if the findings were not demanded as a matter of law, there was certainly ample evidence to support them; that it cannot be said that they were contrary to the truth and right of the case; and that this being so, they may not be set aside as clearly erroneous.
111
Upon appellant's third proposition, the procedural points urged, they insist that in the main the district judge precisely followed prescribed procedure, and in the rulings that he made, or did not make, he committed no error. They urge further that if any error was committed, it was harmless since the district judge took the evidence with the case and, though he declined to rule when requested and later he ruled against appellant on many of its objections, he made it clear in his findings: that, in arriving at them, he did not attach any weight or importance to the evidence admitted or excluded by him over defendant's objection, and that the judgment was based only upon evidence wholly unobjected to and undisputed, which fully supported his findings.
112
They insist, therefore, that the judgments must be affirmed, on the ground that, as a matter of law, the defendant was liable, as DuPont, or Lion Oil Co., or other manufacturers of fertilizer, would have been for putting out an inherently dangerous article, without taking adequate steps to prevent its becoming dangerous to persons who should come in contact with it, and without giving adequate warning of any dangers that might inhere in it.
Appellant's reply
113
The appellant, while meeting all of these contentions head on, presses hardest upon us, as its primary point: that it was not intended by the statute to make the United States liable except in the special case of specific negligent conduct by specific agents in respect of matters not excluded by the exceptions; that the statute precisely excluded liability without fault, and limited the liability of the United States to cases of specific acts of negligence by specific employees.
114
Further insisting that the statute was not intended to introduce new and strange liabilities, such as the liability without fault of a manufacturer, and that the whole doctrine of manufacturer's liability is wholly inapposite and inapplicable to the United States, as a tort feasor under the Act, appellant further argues that it cannot be said upon this record: that the evidence established its liability as matter of law; that it showed that the agents of the government charged with the manufacture and handling of the fertilizer knew, or were charged with knowledge, of its propensity to explode, and failed to take adequate precautions against, or warn people of, this propensity. They particularly insist: that this is a case of hindsight teaching foresight; that the district judge based his finding of liability for the Texas City explosion, which, when it occurred was a completely unlooked for, unprecedented and wholly unforeseeable occurrence, indeed a nine days' wonder, not upon facts then known and understood, but upon experiments and investigations made afterwards, and upon the erroneous view that these experiments, and the testimony of witnesses who made them, were admission against interest of appellant.
115
Appellant points out: that it is fundamental law that negligence must be proved and not presumed; that the standard is not insurance, but the exercise of due care; that the foreseeability required is not an absolute foreseeability, but the foreseeability of a reasonably prudent person.
116
So pointing, it insists that, except for the worked up tension and excitement in the case, because of the size of the explosion and the large amounts being sued for, the findings would not have been made; that, in short, had this been a small case of a small loss, no one would have found the defendant negligent for not knowing what nobody else knew until after the explosion and the Picatinny and other tests were made; and that the findings must be disregarded as clearly erroneous because contrary to the great weight and sense of the testimony taken as a whole.
117
Finally, it urges upon us that, if all the evidence that was admissible had been allowed to come in, and all that was inadmissible had been kept out, and the really admissible evidence supported the findings, the case was yet tried under such pressures and in such an atmosphere and the procedures adopted and carried out through the trial present so many errors, both of omission and commission, that the trial and the findings are deprived of effect, and defendant is entitled to have the issues, presented by the pleadings and the evidence, retried. Pointing out that this is especially necessary in this case when the result of so many suits were made to depend upon the decision of one trial, appellant insists that for this trial to stand, as the standard and measure of liability in all of these cases, is to work a complete perversion and denial of justice, and that if the case is not reversed and rendered, there should certainly be a reversal and remand.
118
As a last resort, it complains of the fact that the court attempted to start interest running on all the claims by entering judgment settling liability on all of them before any adjudication on the amounts thereof had been had.
119
Approaching these claims and counter-claims from the small end of the telescope, I am of the clear opinion that appellant is right in its attack upon the judgments as providing for interest in violation of the statute before the amounts have been determined, and that to that extent the judgments should be reversed. I am also of the clear opinion that the judgments must be reversed for procedural errors inherent in the way and manner in which the case was tried.
120
Particularly erroneous and prejudicial were (1) the refusal of the court to allow the government to take depositions because it would not turn over to the plaintiffs the F. B. I. records; (2) the admission of the Picatinny and other arsenal tests and testimony as admissions against the interest of the government; and (3) the conduct of the trial generally with undue limitation of the procedural rights of the defendant and undue enlargement of the procedural rights of the plaintiffs.
121
The next step which the appellant urges us to take, to downrightly hold that, procedural errors aside, the findings are clearly erroneous, would not, if it were not for the procedural points, be so easy to take. Because, however, of the way the case was tried, because, too, of the too sweeping nature of the findings and conclusions, I agree with the appellant that the findings are contrary to the truth and right of the case and clearly erroneous, and that the judgments should, therefore, be reversed and the cause remanded for trial anew.
122
When it comes to the final step which appellant urges us to take, to reverse and render because no recoverable claim was alleged, or, if alleged, as a matter of law none was proven, I find myself unable to take the step. It seems to me that a case against the government was pleaded and that if the trial had not been marred by errors of procedure in the reception and rejection of evidence and in other respects, there was evidence which, if believed, would have been sufficient to sustain a recovery.
123
Judge Rives has, in his opinion, put the case for the government, as to its non liability as matter of law, as well I think as it could be put, and, if I could agree with his primary position, I should agree with his conclusions. I find nothing, however, in the statute itself, nothing in any decided case, which, in my opinion, supports the application of the views advanced by him to facts of this kind. What was said in the Sickman case, 7 Cir., 184 F.2d 616, about discretion does not, in my opinion, carry the matter to the point Judge Rives' opinion seems to me to carry it, that because of the discretionary character of the operation, the government would not be liable for negligence in the higher echelons; and that if persons in these should direct the doing of something in its nature completely dangerous, there could be no responsibility in tort for what was done or not done in connection with it.
124
As I understand the reasoning it is that, since the matter was within the discretionary sphere, neither those who gave the orders, nor the government, would be responsible, and, therefore, neither those who carried out the orders exactly as given nor the government could be responsible.
125
I am in no doubt that the district judge erred in holding that the program was in its nature so dangerous that it constituted a public nuisance and its mere undertaking was wrongful. Neither am I in any that the appellees are wholly mistaken in claiming, as they do at page 195 of their brief, that the government can be held liable without fault for putting out an ultra hazardous material.
126
I find it very difficult though to understand how, under the precise language of the Tort Claims Act, liability can be escaped if it is made to appear that the act or omission of an employee of the government in the execution of a statute or regulation was not in the exercise of due care.
127
It seems to me that such decisions as we have rendered under the Tort Claims Act, St. Louis, etc. v. U. S., 5 Cir., 187 F.2d 925, and Costley v. U. S., 5 Cir., 181 F.2d 723, are contrary to this view. It seems to me, too, that all of the decisions of the Supreme Court and of the other federal courts, which I have read, are in favor of a broad construction of the act and against what seems to me the extremely narrow view invoked and applied here.
128
In the situation, then, in which I find myself, I am compelled to dissent from the opinion of the majority that no case was stated on the pleadings, and, as matter of law, none was made out. I think the contrary is true, and that a case was stated on the theory: that the product was ultra hazardous and dangerous; that this was known, or, in the exercise of due care, ought to have been known; that a reasonably prudent person, therefore, manufacturing and putting it out, as the United States was doing, ought to, and would have known its liability to explode and would have given more warning of that fact than was done here. I think too that if, on a retrial, the proof makes out the case alleged, the United States must be held liable as Hercules Powder Co. or DuPont Co., or any other private manufacturer would be, not for having undertaken to make FGAN, or even for making and shipping it as it did, but, if it did not, because it did not, give the warnings required of a reasonably prudent person to put people dealing with it on notice of its character and the dangers of dealing with it.
129
I am in no doubt, though, that, because of the procedural errors attending the trial, and because the sweeping findings and conclusions are, upon this record, clearly erroneous and cannot stand, all of the judgments must be reversed and the causes remanded for further and not inconsistent proceedings.
Notes:
1
"Record discloses blunders, mistakes, and acts of negligence, both of omission and commission, on the part of the defendant, its agents, servants, and employees, in deciding to begin the manufacture of this inherently dangerous Fertilizer."; that by the manufacture of FGAN, the United States "was creating and maintaining a nuisance", and that "each shipment of such Fertilizer was a dangerous public and private nuisance from the time it was manufactured."
2
Cf. Maryland Cas. Co. v. Reid, 5 Cir., 76 F.2d 30
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18 Utah 2d 414 (1967)
424 P.2d 440
WILLIAM C. JENSEN, PLAINTIFF,
v.
UNITED STATES FUEL COMPANY AND THE INDUSTRIAL COMMISSION OF UTAH, DEFENDANTS.
No. 10600.
Supreme Court of Utah.
March 1, 1967.
S.V. Litizzette, Helper, for plaintiff.
Marr, Wilkins & Cannon, Richard H. Nebeker, Phil L. Hansen, Atty. Gen., Salt Lake City, for defendants.
CROCKETT, Chief Justice:
Plaintiff, William C. Jensen, seeks reversal of an order of the Industrial Commission denying his application for workmen's compensation benefits for an injury he claims to have suffered while working in the mine of defendant United States Fuel Company at Hiawatha, Utah, on July 27, 1964.
In regard to the plaintiff's contention that the evidence compels an award it is appropriate to note that there are two propositions essential as a predicate to his recovery: (1) that he suffered the claimed accident arising out of or in the course of his employment; and (2) that it proximately caused his injury.
As will be seen below, the first proposition is not of controlling importance here. But to provide the factual background of this case we discuss briefly the evidence relating to it. On this review we assume that the Commission believed the evidence and the reasonable inferences therefrom favorable to the defendant's position.[1]
Plaintiff testified that on July 27, 1964, in connection with his work as a mechanic on a roof-bolting machine in defendant's mine, he crawled under the machine in a crouched position, and as he straightened up on reaching the other side, bumped and injured his back. Two of his fellow employees gave some corroboration of his statement. He did not report the matter to his foreman or any other company personnel on that date. It was about three weeks later, on August 18, he first talked to the foreman about having a lame back, but according to the latter's testimony, plaintiff did not mention any specific time or accident and said that "he didn't know whether it was from an old accident, or an old hurt, or anything like that." Plaintiff continued to work regularly through Friday, August 6, but did not come to work the following Monday. He returned to work on August 25 and worked regularly until October 23, 1964. On October 25, 1964, while bending over at home, he developed a pain in his back and down his left leg.
Pursuant to medical advice, the detail of which is not essential here, he had a first operation for correction of a protruded intervertebral disc on December 21, 1964. At first his reaction to the operation was good, but later the pain returned and on July 29, 1965, he underwent another operation at which time a fusion of vertebrae was performed. The cost of his operations was paid by the United Mine Workers Welfare and Retirement Fund.
It was not until March of 1965, about eight months after the alleged injury, and three months after the first operation, that the plaintiff filed his application for benefits and medical treatment, alleging the injury of July 27, 1964. The first hearing was held on June 18, 1965. At that time the Commission appointed a medical panel to make a report to the Commission concerning the plaintiff's condition.[2] The panel made its report on August 13, 1965, stating these conclusions:
1. That plaintiff had a protruded intervertebral disc.
2. That plaintiff had pre-existing radiographic degenerative changes at L-4 and L-5 being more marked at L-5. These degenerative changes were apparently asymptomatic prior to the alleged accident.
3. The panel felt * * * that it is a more reasonable probability that this was the insidious onset of a protruded intervertebral disc that we see most commonly without trauma and is of the opinion that the alleged accident was not significant in the causation of his protruded intervertebral disc and that the protrusion would have occurred and that the subsequent course would have been no different had this accident not occurred. (Emphasis added.)
On September 8, 1965, the plaintiff filed objections to the findings of the panel. A further hearing was held on November 22, 1965, at which Dr. Holbrook, chairman of the panel, testified in corroboration of the written report: to the effect that taking into account all of the facts, including plaintiff's previous history, the accident was not a significant factor in causing his condition which required correction by the operative procedures.[3]
We recognize the value and the usefulness of an impartial medical panel to make an independent examination and diagnosis in such cases. We are also in accord with the position of the plaintiff that it is not the panel's prerogative to encroach upon the authority vested in the Commission to make the findings of fact and render the decision upon the application.[4] Its proper purpose is limited to medical examination and diagnosis, the evidence of which is to be considered by the Commission in arriving at its decision. There is no indication here that this limitation was transgressed. In referring the case to the medical panel the Commission stated that they should make their report on the assumption that an accident had taken place and determine what part, if any, it had played in causing the plaintiff's condition.
We see no reason to disagree with plaintiff's contention that his evidence shows without dispute that he had a bad back which was painful and distressing to him. In fact this seems to have been so for some time even prior to the accident. Furthermore, there is substantial, competent and believable evidence that he suffered a bruise to his back by bumping it on the bolting machine in defendant's mine in July, 1964. However, this is not true of the critical issue in this case: whether that incident had any causal relationship to the condition of the intervertebral disc and bony structure of his back which required the operations. While both parties argue that the evidence on this disputed issue is conclusive in their favor, there is a basis in the evidence from which the Commission could reasonably refuse to find that the accident was what caused plaintiff's disability. Therefore we cannot conclude that the denial of an award was capricious or arbitrary.[5]
Affirmed. No costs awarded.
CALLISTER, HENRIOD, TUCKETT, and ELLETT, JJ., concur.
NOTES
[1] Vause v. Ind. Comm., 17 Utah 2d 217, 407 P.2d 1006.
[2] Pursuant to Sec. 35-1-77, U.C.A. 1953.
[3] As to necessity of testimony when objection is made see Hackford v. Ind. Comm., 11 Utah 2d 312, 358 P.2d 899.
[4] Sec. 35-1-85, U.C.A. 1953.
[5] See Spencer v. Ind. Comm., 4 Utah 2d 185, 290 P.2d 692.
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517 U.S. 748 (1996)
LOVING
v.
UNITED STATES
No. 94-1966.
United States Supreme Court.
Argued January 9, 1996.
Decided June 3, 1996.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
*750 *750 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in which O'Connor and Scalia, JJ., joined as to Parts I, II, III, IVB, and IVC. Stevens, J., filed a concurring opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 774. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which O'Connor, J., joined, post, p. 775. Thomas, J., filed an opinion concurring in the judgment, post, p. 777.
John H. Blume argued the cause for petitioner. With him on the briefs were Teresa L. Norris, Roy H. Hewitt, Fran W. Walterhouse, and Walter S. Weedman.
Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Miguel A. Estrada, and John F. De Pue.[*]
*751 Justice Kennedy, delivered the opinion of the Court.
The case before us concerns the authority of the President, in our system of separated powers, to prescribe aggravating factors that permit a court-martial to impose the death penalty upon a member of the Armed Forces convicted of murder.
I
On December 12, 1988, petitioner Dwight Loving, an Army private stationed at Fort Hood, Texas, murdered two taxicab drivers from the nearby town of Killeen. He attempted to murder a third, but the driver disarmed him and escaped. Civilian and Army authorities arrested Loving the next afternoon. He confessed.
After a trial, an eight-member general court-martial found Loving guilty of, among other offenses, premeditated murder and felony murder under Article 118 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §§ 918(1), (4). In the sentencing phase of the trial, the court-martial found three aggravating factors: (1) that the premeditated murder of the second driver was committed during the course of a robbery, Rule for Courts-Martial (RCM) 1004(c)(7)(B); (2) that Loving acted as the triggerman in the felony murder of the first driver, RCM 1004(c)(8); and (3) that Loving, having been found guilty of the premeditated murder, had committed a second murder, also proved at the single trial, RCM 1004(c)(7)(J). The court-martial sentenced Loving to death. The commander who convened the court-martial approved the findings and sentence. Cf. 10 U. S. C. § 860. The United States Army Court of Military Review and the United States Court of Appeals for the Armed Forces (formerly the United States Court of Military Appeals (CMA)) affirmed, 41 M. J. 213 (1994), relying on United States v. Curtis, 32 M. J. *752 252 (CMA), cert. denied, 502 U. S. 952 (1991), to reject Loving's claims that the President lacked authority to promulgate the aggravating factors that enabled the court-martial to sentence him to death. We granted certiorari. 515 U. S. 1191 (1995).
II
Although American courts-martial from their inception have had the power to decree capital punishment, they have not long had the authority to try and to sentence members of the Armed Forces for capital murder committed in the United States in peacetime. In the early days of the Republic the powers of courts-martial were fixed in the Articles of War. Congress enacted the first Articles in 1789 by adopting in full the Articles promulgated in 1775 (and revised in 1776) by the Continental Congress. Act of Sept. 29, 1789, ch. 25, § 4, 1 Stat. 96. (Congress reenacted the Articles in 1790 "as far as the same may be applicable to the constitution of the United States," Act of Apr. 30, 1790, ch. 10, § 13, 1 Stat. 121.) The Articles adopted by the First Congress placed significant restrictions on court-martial jurisdiction over capital offenses. Although the death penalty was authorized for 14 military offenses, American Articles of War of 1776, reprinted in W. Winthrop, Military Law and Precedents 961 (reprint 2d ed. 1920) (hereinafter Winthrop); Comment, Rocks and Shoals in a Sea of Otherwise Deep Commitment: General Court-Martial Size and Voting Requirements, 35 Nav. L. Rev. 153, 156-158 (1986), the Articles followed the British example of ensuring the supremacy of civil court jurisdiction over ordinary capital crimes that were punishable by the law of the land and were not special military offenses. 1776 Articles, § 10, Art. 1, reprinted in Winthrop 964 (requiring commanders, upon application, to exert utmost effort to turn offender over to civil authorities). Cf. British Articles of War of 1765, § 11, Art. 1, reprinted in Winthrop 937 (same). That provision was deemed protection enough for soldiers, and in 1806 Congress debated and rejected *753 a proposal to remove the death penalty from courtmartial jurisdiction. Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv. L. Rev. 1, 20-21 (1958).
Over the next two centuries, Congress expanded courtmartial jurisdiction. In 1863, concerned that civil courts could not function in all places during hostilities, Congress granted courts-martial jurisdiction of common-law capital crimes and the authority to impose the death penalty in wartime. Act of Mar. 3, 1863, § 30, 12 Stat. 736, Rev. Stat. § 1342, Art. 58 (1875); Coleman v. Tennessee, 97 U. S. 509, 514 (1879). In 1916, Congress granted to the military courts a general jurisdiction over common-law felonies committed by service members, except for murder and rape committed within the continental United States during peacetime. Articles of War of 1916, ch. 418, § 3, Arts. 92-93, 39 Stat. 664. Persons accused of the latter two crimes were to be turned over to the civilian authorities. Art. 74, 39 Stat. 662. In 1950, with the passage of the UCMJ, Congress lifted even this restriction. Article 118 of the UCMJ describes four types of murder subject to court-martial jurisdiction, two of which are punishable by death:
"Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he
"(1) has a premeditated design to kill;
"(2) intends to kill or inflict great bodily harm;
"(3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or
"(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson; "is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment *754 for life as a court-martial may direct." 10 U. S. C. § 918.
So matters stood until 1983, when the CMA confronted a challenge to the constitutionality of the military capital punishment scheme in light of Furman v. Georgia, 408 U. S. 238 (1972), and our ensuing death penalty jurisprudence. Although it held valid most of the death penalty procedures followed in courts-martial, the court found one fundamental defect: the failure of either the UCMJ or the RCM to require that court-martial members "specifically identify the aggravating factors upon which they have relied in choosing to impose the death penalty." United States v. Matthews, 16 M. J. 354, 379. The court reversed Matthews' death sentence, but ruled that either Congress or the President could remedy the defect and that the new procedures could be applied retroactively. Id., at 380-382.
The President responded to Matthews in 1984 with an Executive Order promulgating RCM 1004. In conformity with 10 U. S. C. § 852(a)(1), the Rule, as amended, requires a unanimous finding that the accused was guilty of a capital offense before a death sentence may be imposed, RCM 1004(a)(2). The Rule also requires unanimous findings (1) that at least one aggravating factor is present and (2) that any extenuating or mitigating circumstances are substantially outweighed by any admissible aggravating circumstances, 1004(b). RCM 1004(c) enumerates 11 categories of aggravating factors sufficient for imposition of the death penalty. The Rule also provides that the accused is to have "broad latitude to present evidence in extenuation and mitigation," 1004(b)(3), and is entitled to have the members of the court-martial instructed to consider all such evidence before deciding upon a death sentence, 1004(b)(6).
This is the scheme Loving attacks as unconstitutional. He contends that the Eighth Amendment and the doctrine of separation of powers require that Congress, and not the *755 President, make the fundamental policy determination respecting the factors that warrant the death penalty.
III
A preliminary question in this case is whether the Constitution requires the aggravating factors that Loving challenges. The Government does not contest the application of our death penalty jurisprudence to courts-martial, at least in the context of a conviction under Article 118 for murder committed in peacetime within the United States, and we shall assume that Furman and the case law resulting from it are applicable to the crime and sentence in question. Cf. Trop v. Dulles, 356 U. S. 86 (1958) (analyzing court-martial punishments under the Eighth Amendment). The Eighth Amendment requires, among other things, that "a capital sentencing scheme must `genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' " Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)). Some schemes accomplish that narrowing by requiring that the sentencer find at least one aggravating circumstance. 484 U. S., at 244. The narrowing may also be achieved, however, in the definition of the capital offense, in which circumstance the requirement that the sentencer "find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process." Id., at 246.
Although the Government suggests the contrary, Brief for United States 11, n. 6, we agree with Loving, on the assumption that Furman applies to this case, that aggravating factors are necessary to the constitutional validity of the military capital punishment scheme as now enacted. Article 118 authorizes the death penalty for but two of the four types of murder specified: premeditated and felony murder are punishable by death, 10 U. S. C. §§ 918(1), (4), whereas *756 intentional murder without premeditation and murder resulting from wanton and dangerous conduct are not, §§ 918(2), (3). The statute's selection of the two types of murder for the death penalty, however, does not narrow the death-eligible class in a way consistent with our cases. Article 118(4) by its terms permits death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be imposed in those circumstances. Enmund v. Florida, 458 U. S. 782, 801 (1982). As a result, additional aggravating factors establishing a higher culpability are necessary to save Article 118. We turn to the question whether it violated the principle of separation of powers for the President to prescribe the aggravating factors required by the Eighth Amendment.
IV
Even before the birth of this country, separation of powers was known to be a defense against tyranny. Montesquieu, The Spirit of the Laws 151-152 (T. Nugent transl. 1949); 1 W. Blackstone, Commentaries *146*147, *269*270. Though faithful to the precept that freedom is imperiled if the whole of legislative, executive, and judicial power is in the same hands, The Federalist No. 47, pp. 325-326 (J. Madison) (J. Cooke ed. 1961), the Framers understood that a "hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively," Buckley v. Valeo, 424 U. S. 1, 120-121 (1976) (per curiam).
"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngs- town Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring).
*757 Although separation of powers "`d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other,' " Mistretta v. United States, 488 U. S. 361, 380-381 (1989) (quoting The Federalist No. 47, supra, at 325-326 (emphasis deleted)), it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another. See Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 225-226 (1995) (Congress may not revise judicial determinations by retroactive legislation reopening judgments); Bowsher v. Synar, 478 U. S. 714, 726 (1986) (Congress may not remove executive officers except by impeachment); INS v. Chadha, 462 U. S. 919, 954-955 (1983) (Congress may not enact laws without bicameral passage and presentment of the bill to the President); United States v. Klein, 13 Wall. 128, 147 (1872) (Congress may not deprive court of jurisdiction based on the outcome of a case or undo a Presidential pardon). Even when a branch does not arrogate power to itself, moreover, the separation-ofpowers doctrine requires that a branch not impair another in the performance of its constitutional duties. Mistretta v. United States, supra, at 397-408 (examining whether statute requiring participation of Article III judges in the United States Sentencing Commission threatened the integrity of the Judicial Branch); Nixon v. Administrator of General Services, 433 U. S. 425, 445 (1977) (examining whether law requiring agency control of Presidential papers disrupted the functioning of the Executive).
Deterrence of arbitrary or tyrannical rule is not the sole reason for dispersing the federal power among three branches, however. By allocating specific powers and responsibilities to a branch fitted to the task, the Framers created a National Government that is both effective and accountable. Article I's precise rules of representation, member qualifications, bicameralism, and voting procedure make Congress the branch most capable of responsive and *758 deliberative lawmaking. See Chadha, supra, at 951. Ill suited to that task are the Presidency, designed for the prompt and faithful execution of the laws and its own legitimate powers, and the Judiciary, a branch with tenure and authority independent of direct electoral control. The clear assignment of power to a branch, furthermore, allows the citizen to know who may be called to answer for making, or not making, those delicate and necessary decisions essential to governance.
Another strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties. Loving invokes this doctrine to question the authority of the President to promulgate RCM 1004. The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U. S. Const., Art. I, § 1, and may not be conveyed to another branch or entity. Field v. Clark, 143 U. S. 649, 692 (1892). This principle does not mean, however, that only Congress can make a rule of prospective force. To burden Congress with all federal rulemaking would divert that branch from more pressing issues, and defeat the Framers' design of a workable National Government. Thomas Jefferson observed: "Nothing is so embarrassing nor so mischievous in a great assembly as the details of execution." 5 Works of Thomas Jefferson 319 (P. Ford ed. 1904) (letter to E. Carrington, Aug. 4, 1787). See also A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 529-530 (1935) (recognizing "the necessity of adapting legislation to complex conditions involving a host of details with which the national legislature cannot deal directly"). This Court established long ago that Congress must be permitted to delegate to others at least some authority that it could exercise itself. Wayman v. Southard, 10 Wheat. 1, 42 (1825).
"`The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority *759 or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.' " Field, supra, at 693-694, quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 (1852).
Loving contends that the military death penalty scheme of Article 118 and RCM 1004 does not observe the limits of the delegation doctrine. He presses his constitutional challenge on three fronts. First, he argues that Congress cannot delegate to the President the authority to prescribe aggravating factors in capital murder cases. Second, he contends that, even if it can, Congress did not delegate the authority by implicit or explicit action. Third, Loving believes that even if certain statutory provisions can be construed as delegations, they lack an intelligible principle to guide the President's discretion. Were Loving's premises to be accepted, the President would lack authority to prescribe aggravating factors in RCM 1004, and the death sentence imposed upon him would be unconstitutional.
A
Loving's first argument is that Congress lacks power to allow the President to prescribe aggravating factors in military capital cases because any delegation would be inconsistent with the Framers' decision to vest in Congress the power "To make Rules for the Government and Regulation of the land and naval Forces." U. S. Const., Art. I, § 8, cl. 14. At least in the context of capital punishment for peacetime crimes, which implicates the Eighth Amendment, this power must be deemed exclusive, Loving contends. In his view, not only is the determination of aggravating factors a quintessential policy judgment for the Legislature, but the history of military capital punishment in England and America refutes a contrary interpretation. He asserts that his offense was not tried in a military court throughout most of English *760 and American history. It is this historical exclusion of common-law capital crimes from military jurisdiction, he urges, that must inform our understanding of whether Clause 14 reserves to Congress the power to prescribe what conduct warrants a death sentence, even if it permits Congress to authorize courts-martial to try such crimes. See Brief for Petitioner 42-43; Brief for United States NavyMarine Corps Appellate Defense Division as Amicus Curiae 7-12, 19-26. Mindful of the historical dangers of autocratic military justice and of the limits Parliament set on the peacetime jurisdiction of courts-martial over capital crimes in the first Mutiny Act, 1 Wm. & Mary, ch. 5 (1689), and having experienced the military excesses of the Crown in colonial America, the Framers harbored a deep distrust of executive military power and military tribunals. See Reid v. Covert, 354 U. S. 1, 23-24 (1957) (plurality); Lee v. Madigan, 358 U. S. 228, 232 (1959). It follows, Loving says, that the Framers intended that Congress alone should possess the power to decide what aggravating factors justify sentencing a member of the Armed Forces to death.
We have undertaken before, in resolving other issues, the difficult task of interpreting Clause 14 by drawing upon English constitutional history. See, e. g., Reid, supra, at 23-30; O'Callahan v. Parker, 395 U. S. 258, 268-272 (1969) (determining that courts-martial only had jurisdiction of serviceconnected crimes); Solorio v. United States, 483 U. S. 435, 442-446 (1987) (overruling O'Callahan and taking issue with its historical analysis). Doing so here, we find that, although there is a grain of truth in Loving's historical arguments, the struggle of Parliament to control military tribunals and the lessons the Framers drew from it are more complex than he suggests. The history does not require us to read Clause 14 as granting to Congress an exclusive, nondelegable power to determine military punishments. If anything, it appears that England found security in divided authority, with Parliament at times ceding to the Crown the *761 task of fixing military punishments. From the English experience the Framers understood the necessity of balancing efficient military discipline, popular control of a standing army, and the rights of soldiers; they perceived the risks inherent in assigning the task to one part of the Government to the exclusion of another; and they knew the resulting parliamentary practice of delegation. The Framers' choice in Clause 14 was to give Congress the same flexibility to exercise or share power as times might demand.
In England after the Norman Conquest, military justice was a matter of royal prerogative. The rudiments of law in English military justice can first be seen in the written orders issued by the King for various expeditions. Winthrop 17-18. For example, in 1190 Richard I issued an ordinance outlining six offenses to which the crusaders would be subject, including two punishable by death: "Whoever shall slay a man on ship-board, he shall be bound to the dead man and thrown into the sea. If he shall slay him on land he shall be bound to the dead man and buried in the earth." Ordinance of Richard IA. D. 1190, reprinted in id., at 903. The first comprehensive articles of war were those declared by Richard II at Durham in 1385 and Henry V at Mantes in 1419, which decreed capital offenses that not only served military discipline but also protected foreign noncombatants from the ravages of war. T. Meron, Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages 91-93 (1993). Articles of War, sometimes issued by military commanders acting under royal commission in the ensuing centuries, Winthrop 19, were not fixed codes, at least through the 17th century; rather, "each war, each expedition, had its own edict," which lost force after the cessation of hostilities and the disbanding of the army that had been formed. J. Pipon & J. Collier, Manual of Military Law 14 (3d rev. ed. 1863).
Thus, royal ordinances governed the conduct of war, but the common law did not countenance the enforcement of military *762 law in times of peace "when the king's courts [were] open for all persons to receive justice according to the laws of the land." 1 W. Blackstone, Commentaries *413. See also M. Hale, History of the Common Law of England 25-27 (C. Gray ed. 1971) (describing efforts of Parliament and the common-law courts to limit the jurisdiction of the military Courts of the Constable and the Marshal).
"The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts, so `if a life-guardsman deserted, he could only be sued for breach of contract, and if he struck his officer he was only liable to an indictment or action of battery.' " Reid, supra, at 24, n. 44 (quoting 2 J. Campbell, Lives of the Chief Justices of England 91 (1849)).
See also 1 T. Macaulay, History of England 272 (n. d.) (hereinafter Macaulay).
The triumph of civil jurisdiction was not absolute, however. The political disorders of the 17th century ushered in periods of harsh military justice, with soldiers and at times civilian rebels punished, even put to death, under the summary decrees of courts-martial. See C. Clode, Administration of Justice Under Military and Martial Law 20-42 (1872) (hereinafter Clode). Cf. Petition of Right of 1627, 3 Car. I, ch. 1 (protesting court-martial abuses). Military justice was brought under the rule of parliamentary law in 1689, when William and Mary accepted the Bill of Rights requiring Parliament's consent to the raising and keeping of armies. In the Mutiny Act of 1689, Parliament declared the general principle that "noe Man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martiall Law or in any other manner then by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme," but decreed that "Soldiers who shall Mutiny or *763 stirr up Sedition or shall desert Their Majestyes Service be brought to a more Exemplary and speedy Punishment than the usuall Forms of Law will allow," and "shall suffer Death or such other Punishment as by a Court-Martiall shall be Inflicted." 1 Wm. & Mary, ch. 5.
In one sense, as Loving wants to suggest, the Mutiny Act was a sparing exercise of parliamentary authority, since only the most serious domestic offenses of soldiers were made capital, and the militia was exempted. See Solorio, supra, at 442. He misunderstands the Mutiny Act of 1689, however, in arguing that it bespeaks a special solicitude for the rights of soldiers and a desire of Parliament to exclude Executive power over military capital punishment.
The Mutiny Act, as its name suggests, came on the heels of the mutiny of Scottish troops loyal to James II. 3 Macaulay 45-49. The mutiny occurred at a watershed time. Menaced by great continental powers, England had come to a grudging recognition that a standing army, long decried as an instrument of despotism, had to be maintained on its soil. The mutiny cast in high relief the dangers to the polity of a standing army turned bad. Macaulay describes the sentiment of the time:
"There must then be regular soldiers; and, if there were to be regular soldiers, it must be indispensable, both to their efficiency, and to the security of every other class, that they should be kept under a strict discipline. An ill disciplined army . . . [is] formidable only to the country which it is paid to defend. A strong line of demarcation must therefore be drawn between the soldiers and the rest of the community. For the sake of public freedom, they must, in the midst of freedom, be placed under a despotic rule. They must be subject to a sharper penal code, and to a more stringent code of procedure, than are administered by the ordinary tribunals." Id., at 50. *764 The Mutiny Act, then, was no measure of leniency for soldiers. With its passage, "the Army of William III. was governed under a severer Code than that made by his predecessors under the Prerogative authority of the Crown. The Mutiny Act, without displacing the Articles of War and those Military Tribunals under which the Army had hitherto been governed, gave statutory sanction to the infliction of Capital Punishments for offences rather Political than Military, and which had rarely been so punished under Prerogative authority." Clode 9-10. See also Duke & Vogel, The Constitution and the Standing Army: Another Problem of CourtMartial Jurisdiction, 13 Vand. L. Rev. 435, 443, and n. 40 (1960) (noting that the Articles of War of 1662 and 1686 prohibited the infliction in peacetime of punishment costing life or limb). Indeed, it was the Crown that later tempered the excesses of courts-martial wielding the power of capital punishment. It did so by stipulating in the Articles of War (which remained a matter of royal prerogative) that all capital sentences be sent to it for revision or approval. Clode 9-10.
Popular suspicion of the standing army persisted, 5 Macaulay 253-273, 393, and Parliament authorized the Mutiny Acts only for periods of six months and then a year, 3 id., at 51-53. But renewed they were time and again, and Parliament would alter the power of courts-martial to impose the death penalty for peacetime offenses throughout the next century. It withdrew the power altogether in 1713, 12 Anne, ch. 13, § 1, only to regret the absence of the penalty during the rebellion of 1715, Clode 49. The third of the Mutiny Acts of 1715 subjected the soldier to capital punishment for a wide array of peacetime offenses related to political disorder and troop discipline. Id., at 50. And, for a short time in the 18th century, Parliament allowed the Crown to invest courts-martial with a general criminal jurisdiction over soldiers even at home, placing no substantive limit on the penalties that could be imposed; until 1718, that jurisdiction was *765 superior to civil courts. Id., at 52-53. The propriety of that general jurisdiction within the kingdom was questioned, and the jurisdiction was withdrawn in 1749. Id., at 53. Nevertheless, even as it continued to adjust the scope of military jurisdiction at home, Parliament entrusted broad powers to the Crown to define and punish military crimes abroad. In 1713, it gave statutory sanction to the Crown's longstanding practice of issuing Articles of War without limiting the kind of punishments that might be imposed; and, in the same Act, it delegated the power to "erect and constitute Courts Martial with Power to try hear and determine any Crime or Offence by such Articles of War and inflict Penalties by Sentence or Judgement of the same in any of Her Majesties Dominions beyond the Seas or elsewhere beyond the Seas (except in the Kingdom of Ireland) . . . as might have been done by Her Majesties Authority beyond the Seas in Time of War." 12 Anne, ch. 13, § 43; Winthrop 20. Cf. Duke & Vogel, supra, at 444 (noting that Parliament in 1803 gave statutory authority to the Crown to promulgate Articles of War applicable to troops stationed in England as well). See Solorio, 483 U. S., at 442 (discussing a provision in the British Articles of War of 1774 providing court-martial jurisdiction of civilian offenses by soldiers).
As Loving contends, and as we have explained elsewhere, the Framers well knew this history, and had encountered firsthand the abuses of military law in the colonies. See Reid, 354 U. S., at 27-28. As many were themselves veterans of the Revolutionary War, however, they also knew the imperatives of military discipline. What they distrusted were not courts-martial per se, but military justice dispensed by a commander unchecked by the civil power in proceedings so summary as to be lawless. The latter was the evil that caused Blackstone to declare that "martial law"by which he, not observing the modern distinction between military and martial law, meant decrees of courts-martial disciplining soldiers in wartime"is built upon no settled principles, but *766 is entirely arbitrary in its decisions, [and] is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law." 1 Blackstone's Commentaries *413. See also Hale, History of the Common Law of England, at 26-27; Clode 21 (military law in early 17thcentury England amounted to "the arbitrary right to punish or destroy, without legal trial, any assumed delinquent"). The partial security Englishmen won against such abuse in 1689 was to give Parliament, preeminent guardian of the British constitution, primacy in matters of military law. This fact does not suggest, however, that a legislature's power must be exclusive. It was for Parliament, as it did in the various Mutiny Acts, to designate as the times required what peacetime offenses by soldiers deserved the punishment of death; and it was for Parliament, as it did in 1713, to delegate the authority to define wartime offenses and devise their punishments, including death. The Crown received the delegated power and the concomitant responsibility for its prudent exercise. The lesson from the English constitutional experience was that Parliament must have the primary power to regulate the Armed Forces and to determine the punishments that could be imposed upon soldiers by courts-martial. That was not inconsistent, however, with the further power to divide authority between it and the Crown as conditions might warrant.
Far from attempting to replicate the English system, of course, the Framers separated the powers of the Federal Government into three branches to avoid dangers they thought latent or inevitable in the parliamentary structure. The historical necessities and events of the English constitutional experience, though, were familiar to them and inform our understanding of the purpose and meaning of constitutional provisions. As we have observed before, with this experience to consult they elected not to "freeze courtmartial usage at a particular time" for all ages following, Solorio, supra, at 446, nor did they deprive Congress of the *767 services of the Executive in establishing rules for the governance of the military, including rules for capital punishment. In the words of Alexander Hamilton, the power to regulate the Armed Forces, like other powers related to the common defense, was given to Congress
"without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defence." The Federalist No. 23, at 147 (emphasis deleted).
The later-added Bill of Rights limited this power to some degree, cf. Burns v. Wilson, 346 U. S. 137, 140 (1953) (plurality opinion); Chappell v. Wallace, 462 U. S. 296, 300 (1983), but did not alter the allocation to Congress of the "primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military," Solorio, 483 U. S., at 447-448.
Under Clause 14, Congress, like Parliament, exercises a power of precedence over, not exclusion of, Executive authority. Cf. United States v. Eliason, 16 Pet. 291, 301 (1842) ("The power of the executive to establish rules and regulations for the government of the army, is undoubted"). This power is no less plenary than other Article I powers, Solorio, supra, at 441, and we discern no reasons why Congress should have less capacity to make measured and appropriate delegations of this power than of any other, see Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 220-221 (1989) *768 (Congress may delegate authority under the taxing power); cf. Lichter v. United States, 334 U. S. 742, 778 (1948) (general rule is that "[a] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes") (emphasis deleted). Indeed, it would be contrary to precedent and tradition for us to impose a special limitation on this particular Article I power, for we give Congress the highest deference in ordering military affairs. Rostker v. Goldberg, 453 U. S. 57, 64-65 (1981). And it would be contrary to the respect owed the President as Commander in Chief to hold that he may not be given wide discretion and authority. We decline to import into Clause 14 a restrictive nondelegation principle that the Framers left out.
There is no absolute rule, furthermore, against Congress' delegation of authority to define criminal punishments. We have upheld delegations whereby the Executive or an independent agency defines by regulation what conduct will be criminal, so long as Congress makes the violation of regulations a criminal offense and fixes the punishment, and the regulations "confin[e] themselves within the field covered by the statute." United States v. Grimaud, 220 U. S. 506, 518 (1911). See also Touby v. United States, 500 U. S. 160 (1991). The exercise of a delegated authority to define crimes may be sufficient in certain circumstances to supply the notice to defendants the Constitution requires. See M. Kraus & Bros., Inc. v. United States, 327 U. S. 614, 622 (1946). In the circumstances presented here, so too may Congress delegate authority to the President to define the aggravating factors that permit imposition of a statutory penalty, with the regulations providing the narrowing of the death-eligible class that the Eighth Amendment requires.
In 1950, Congress confronted the problem of what criminal jurisdiction would be appropriate for Armed Forces of colossal size, stationed on bases that in many instances were small societies unto themselves. Congress, confident in the procedural protections of the UCMJ, gave to courts-martial jurisdiction *769 of the crime of murder. Cf. Solorio, supra, at 450 451 (Congress may extend court-martial jurisdiction to any criminal offense committed by a service member during his period of service). It further declared the law that service members who commit premeditated and felony murder may be sentenced to death by a court-martial. There is nothing in the constitutional scheme or our traditions to prohibit Congress from delegating the prudent and proper implementation of the capital murder statute to the President acting as Commander in Chief.
B
Having held that Congress has the power of delegation, we further hold that it exercised the power in Articles 18 and 56 of the UCMJ. Article 56 specifies that "[t]he punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense." 10 U. S. C. § 856. Article 18 states that a courtmartial "may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by [the UCMJ], including the penalty of death when specifically authorized by" the Code. § 818. As the Court of Military Appeals pointed out in Curtis, for some decades the President has used his authority under these Articles to increase the penalties for certain noncapital offenses if aggravating circumstances are present. For example, by regulation, deserters who are apprehended are punished more severely than those who surrender; drunken drivers suffer a harsher fate if they cause an accident resulting in the death of a victim; and the punishment of thieves is graded by the value of the stolen goods. See Curtis, 32 M. J., at 261. The President has thus provided more precision in sentencing than is provided by the statute, while remaining within statutory bounds. This past practice suggests that Articles 18 and 56 support as well an authority in the President to restrict the death sentence to murders in which certain aggravating circumstances have been established.
*770 There is yet a third provision of the UCMJ indicative of congressional intent to delegate this authority to the President. Article 36 of the UCMJ, which gives the President the power to make procedural rules for courts-martial, provides:
"Pretrial, trial, and post-trial procedures, including modes of proof, for [courts martial] . . .may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter." 10 U. S. C. § 836(a).
Although the language of Article 36 seems further afield from capital aggravating factors than that of Article 18 or 56, it is the provision that a later Congress identified as the source of Presidential authority to prescribe these factors. In 1985, Congress enacted Article 106a of the UCMJ, 10 U. S. C. § 906a, which authorized the death penalty for espionage. The Article requires a finding of an aggravating factor if the accused is to be sentenced to death; it enumerates three such factors, but allows death to be decreed on "[a]ny other factor that may be prescribed by the President by regulations under section 836 of this title (article 36)." § 906a(c)(4). Article 106a itself, then, is premised on the President's having authority under Article 36 to prescribe capital aggravating factors, and "`[s]ubsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.' " Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 118, n. 13 (1980) (quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969)). Whether or not Article 36 would stand on its own as the source of the delegated power, we hold that Articles 18, 36, and 56 together give clear authority to the President for the promulgation of RCM 1004.
*771 Loving points out that the three Articles were enacted as part of the UCMJ in 1950, well before the need for eliminating absolute discretion in capital sentencing was established in Furman v. Georgia, 408 U. S. 238 (1972), and the cases that followed. (Slight amendments to the Articles have been made since but are not relevant here.) In 1950, he argues, Congress could not have understood that it was giving the President the authority to bring an otherwise invalid capital murder statute in line with Eighth Amendment strictures. Perhaps so, but Furman did not somehow undo the prior delegation. What would have been an act of leniency by the President prior to Furman may have become a constitutional necessity thereafter, see supra, at 755-756, but the fact remains the power to prescribe aggravating circumstances has resided with the President since 1950.
C
It does not suffice to say that Congress announced its will to delegate certain authority. Congress as a general rule must also "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928); Touby, 500 U. S., at 165. The intelligible-principle rule seeks to enforce the understanding that Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes. Field, 143 U. S., at 693-694. Though in 1935 we struck down two delegations for lack of an intelligible principle, A. L. A. Schecter Poultry Corp. v. United States, 295 U. S. 495 (1935), and Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), we have since upheld, without exception, delegations under standards phrased in sweeping terms. See, e. g., National Broadcasting Co. v. United States, 319 U. S. 190, 216-217, 225-226 (1943) (upholding delegation to the Federal Communications Commission to regulate radio broadcasting according to *772 "public interest, convenience, or necessity"). Had the delegations here called for the exercise of judgment or discretion that lies beyond the traditional authority of the President, Loving's last argument that Congress failed to provide guiding principles to the President might have more weight. We find no fault, however, with the delegation in this case.
In United States v. Curtis, the Court of Military Appeals discerned a principle limiting the President's discretion to define aggravating factors for capital crimes in Article 36: namely, the directive that regulations the President prescribes must "apply the principles of law . . . generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter," 10 U. S. C. § 836(a). We think, however, that the question to be asked is not whether there was any explicit principle telling the President how to select aggravating factors, but whether any such guidance was needed, given the nature of the delegation and the officer who is to exercise the delegated authority. First, the delegation is set within boundaries the President may not exceed. Second, the delegation here was to the President in his role as Commander in Chief. Perhaps more explicit guidance as to how to select aggravating factors would be necessary if delegation were made to a newly created entity without independent authority in the area. Cf. Mistretta, 488 U. S., at 374 379 (upholding delegation to the United States Sentencing Commission because of detailed congressional directives channeling agency discretion). The President's duties as Commander in Chief, however, require him to take responsible and continuing action to superintend the military, including the courts-martial. The delegated duty, then, is interlinked with duties already assigned to the President by express terms of the Constitution, and the same limitations on delegation do not apply "where the entity exercising the delegated authority itself possesses independent authority over the subject matter," United States v. Mazurie, 419 U. S. *773 544, 556-557 (1975). See also United States v. CurtissWright Export Corp., 299 U. S. 304, 319-322 (1936). Cf. Swaim v. United States, 165 U. S. 553, 557-558 (1897) (President has inherent authority to convene courts-martial). Like the Court of Military Appeals, Curtis, 32 M. J., at 263, n. 9, we need not decide whether the President would have inherent power as Commander in Chief to prescribe aggravating factors in capital cases. Once delegated that power by Congress, the President, acting in his constitutional office of Commander in Chief, had undoubted competency to prescribe those factors without further guidance. "The military constitutes a specialized community governed by a separate discipline from that of the civilian," Orloff v. Willoughby, 345 U. S. 83, 94 (1953), and the President can be entrusted to determine what limitations and conditions on punishments are best suited to preserve that special discipline.
It is hard to deem lawless a delegation giving the President broad discretion to prescribe rules on this subject. From the early days of the Republic, the President has had congressional authorization to intervene in cases where courts-martial decreed death. American Articles of War of 1806, Art. 65, reprinted in Winthrop 976, 982. It would be contradictory to say that Congress cannot further empower him to limit by prospective regulation the circumstances in which courts-martial can impose a death sentence. Specific authority to make rules for the limitation of capital punishment contributes more toward principled and uniform military sentencing regimes than does case-by-case intervention, and it provides greater opportunity for congressional oversight and revision.
Separation-of-powers principles are vindicated, not disserved, by measured cooperation between the two political branches of the Government, each contributing to a lawful objective through its own processes. The delegation to the President as Commander in Chief of the authority to prescribe *774 aggravating factors was in all respects consistent with these precepts, and the promulgation of RCM 1004 was well within the delegated authority. Loving's sentence was lawful, and the judgment of the Court of Appeals for the Armed Forces is affirmed.
It is so ordered.
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, concurring.
As Justice Scalia correctly points out, petitioner has not challenged the power of the tribunal to try him for a capital offense. Post, at 775. It is important to add to this observation that petitioner's first victim was a member of the Armed Forces on active duty and that the second was a retired serviceman who gave petitioner a ride from the barracks on the same night as the first killing. Brief for United States 5. On these facts, this does not appear to be a case in which petitioner could appropriately have raised the question whether the holding in Solorio v. United States, 483 U. S. 435 (1987), should be extended to reach the imposition of the death penalty for an offense that did not have the "service connection" required prior to the change in the law effected in that case. Id., at 451 (Stevens, J., concurring in judgment).
The question whether a "service connection" requirement should obtain in capital cases is an open one both because Solorio was not a capital case, and because Solorio `s review of the historical materials would seem to undermine any contention that a military tribunal's power to try capital offenses must be as broad as its power to try noncapital ones. See id., at 442-446. Moreover, the question is a substantial one because, when the punishment may be death, there are particular reasons to ensure that the men and women of the Armed Forces do not by reason of serving their country receive less protection than the Constitution provides for civilians.
*775 As a consequence of my conclusion that the "service connection" requirement has been satisfied here, I join not only the Court's analysis of the delegation issue, but also its disposition of the case. By joining in the Court's opinion, however, I do not thereby accept the proposition that our decision in Solorio must be understood to apply to capital offenses. Nor do I understand the Court's decision to do so. That question, as I have explained, remains to be decided.
Justice Scalia, with whom Justice O'Connor joins, concurring in part and concurring in the judgment.
I join the Court's opinion, except that with respect to Part IV thereof I join only subparts B and C.
The discussion of English history that features so prominently in the Court's discussion of Congress's power to grant the authority at issue to the President is in my view irrelevant. To be sure, there is ample precedent in our cases for looking to the history of English courts-martialbut not where the question is of the sort before us today. We have surveyed that history for the purpose of establishing the permissible scope of the jurisdiction of military tribunals over certain classes of defendants and offenses, see, e. g., Solorio v. United States, 483 U. S. 435, 442-446 (1987); Lee v. Madigan, 358 U. S. 228, 232 (1959); Reid v. Covert, 354 U. S. 1, 23-27 (1957) (plurality); see also Parker v. Levy, 417 U. S. 733, 745 (1974). This case does not present such a question. Petitioner does not assert that tradition establishes his offense to be, in its nature, beyond the jurisdiction of military courts, or that courts-martial are historically incapable of adjudicating capital offenses. His arguments are altogether different: that Congress cannot authorize the President to establish "aggravating factors" designed to carry out the narrowing function that (we assume) is necessary for imposition of a capital sentence; and that, even if Congress can give the President authority to perform this function, such *776 authorization has not been effected by the statutes upon which the Government relies.
I do not see how consideration of those arguments profits from analysis of the historical sharing of power between Parliament and the English throne. William and Mary's acceptance of the Bill of Rights, and Parliament's enactment of the Mutiny Act of 1689, see ante, at 762-765, are presumably significant occurrences for students of the unwritten English constitution. Our written Constitution does not require us to trace out that history; it provides, in straightforward fashion, that "The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval Forces," U. S. Const., Art. I, § 8, cl. 14, and as the Court notes, see ante, at 767-768, it does not set forth any special limitation on Congress's assigning to the President the task of implementing the laws enacted pursuant to that power. And it would be extraordinary simply to infer such a special limitation upon tasks given to the President as Commander in Chief, where his inherent powers are clearly extensive.
In drafting the Constitution, the Framers were not seeking to replicate in America the government of England; indeed, they set their plan of government out in writing in part to make clear the ways in which it was different from the one it replaced. The Court acknowledges this, see ante, at 766, but nonetheless goes on to treat the form of English government as relevant to determining the limitations upon Clause 14's grant of power to Congress. I would leave this historical discussion aside. While it is true, as the Court demonstrates, that the scheme of assigned responsibility here conforms to English practices, that is so not because Clause 14 requires such conformity, but simply because what seemed like a good arrangement to Parliament has seemed like a good arrangement to Congress as well.
I have one point of definition or conceptualization, which applies to those portions of the opinion that I have joined. While it has become the practice in our opinions to refer to *777 "unconstitutional delegations of legislative authority" versus "lawful delegations of legislative authority," in fact the latter category does not exist. Legislative power is nondelegable. Congress can no more "delegate" some of its Article I power to the Executive than it could "delegate" some to one of its committees. What Congress does is to assign responsibilities to the Executive; and when the Executive undertakes those assigned responsibilities it acts, not as the "delegate" of Congress, but as the agent of the People. At some point the responsibilities assigned can become so extensive and so unconstrained that Congress has in effect delegated its legislative power; but until that point of excess is reached there exists, not a "lawful" delegation, but no delegation at all.
Justice Thomas, concurring in the judgment.
It is not clear to me that the extensive rules we have developed under the Eighth Amendment for the prosecution of civilian capital cases, including the requirement of proof of aggravating factors, necessarily apply to capital prosecutions in the military, cf. Chappell v. Wallace, 462 U. S. 296, 300-302 (1983), and this Court has never so held, see Schick v. Reed, 419 U. S. 256, 260 (1974).[*] I am therefore not certain that this case even raises a delegation question, for if Loving can constitutionally be sentenced to death without proof of aggravating factors, he surely cannot claim that the President violated the Constitution by promulgating aggravating factors that afforded more protection than that to which Loving is constitutionally entitled.
Like the majority, I conclude that the Government prevails even if we assume, without deciding, that aggravating factors are required in this context. There is abundant authority *778 for according Congress and the President sufficient deference in the regulation of military affairs to uphold the delegation here, and I see no need to resort to our nonmilitary separation-of-powers and "delegation doctrine" cases in reaching this conclusion. I write separately to explain that by concurring in the judgment in this case, I take no position with respect to Congress' power to delegate authority or otherwise alter the traditional separation of powers outside the military context.
In light of Congress' express constitutional authority to regulate the Armed Forces, see U. S. Const., Art. I, § 8, cl. 14, and the unique nature of the military's mission, we have afforded an unparalleled degree of deference to congressional action governing the military. See Rostker v. Goldberg, 453 U. S. 57, 64-65 (1981). "[I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise," United States ex rel. Toth v. Quarles, 350 U. S. 11, 17 (1955), and this Court has recognized the limits on its own competence in advancing this core national interest, see Gilligan v. Morgan, 413 U. S. 1, 10 (1973). Mindful of the factors that "differentiate military society from civilian society," we have concluded that the Constitution permits Congress "to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter." Parker v. Levy, 417 U. S. 733, 756 (1974). This heightened deference extends not only to congressional action but also to executive action by the President, who by virtue of his constitutional role as Commander in Chief, see U. S. Const., Art. II, § 2, cl. 1, possesses shared authority over military discipline. See Schlesinger v. Ballard, 419 U. S. 498, 510 (1975) ("The responsibility for determining how best our Armed Forces shall attend to th[e] business [of fighting or preparing to fight wars] rests with Congress and with the President") (citations omitted). See also Brown v. Glines, 444 U. S. 348, 360 (1980) *779 ("Both Congress and this Court have found that the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale. In construing a statute that touches on such matters, therefore, courts must be careful not to `circumscribe the authority of military commanders to an extent never intended by Congress' ") (citations omitted). Under these and many similar cases reviewing legislative and executive control of the military, the sentencing scheme at issue in this case, and the manner in which it was created, are constitutionally unassailable.
On a separate point, I agree with Justice Scalia that the majority's extended analysis of the division of authority between the English Parliament and the Crown with regard to regulation of the military, see ante, at 759-766, has no relevance to this case. It is true that we frequently consult English history and common law in attempting to determine the content of constitutional provisions, but the majority fails to cite a single separation-of-powers case in which we have relied on the structure of the English Government in attempting to understand the governmental structure erected by the Framers of the Constitution. Nor does the majority cite any historical evidence, whether from the constitutional debates, the Federalist Papers, or some other source, that demonstrates that the Framers sought to embrace, or at least actively considered, the English system of shared power over the military. If the majority pointed to some basis for conducting the inquiry that it does, I might be willing to accept its analysis. Instead, the majority repeatedly substitutes ipse dixit for historical evidence. See, e. g., ante, at 761 ("From the English experience the Framers . . . knew the . . . parliamentary practice of delegation" and "[t]he Framers' choice in Clause 14 was to give Congress the same flexibility to exercise or share power"); ante, at 765 ("the Framers well knew this history"); ante, at 766 ("The historical *780 necessities and events of the English constitutional experience . . . were familiar to [the Framers] and inform our understanding of the purpose and meaning of constitutional provisions"). I have no doubt that the Framers were well versed in English history. But it is too simplistic for purposes of constitutional analysis to draw conclusions about the allocation of constitutional authority among the branches of the United States Government from mere speculation about the Framers' familiarity with English military history and the significance that they attached to it.
NOTES
[*] Ronald W. Meister, Steven R. Shapiro, and Diann Y. Rust-Tierney filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Briefs of amici curiae were filed for Public Citizen, Inc., by Alan B. Morrison, David C. Vladeck, and Eugene R. Fidell; for the United States Navy-Marine Corps Appellate Defense Division by John Francis Havranek, Howard Barry Goodman, and Phillip Del Grissom; and for Marci A. Hamilton et al. by David Schoenbrod, pro se.
[*] Although the applicability of Furman v. Georgia, 408 U. S. 238 (1972), and its progeny to the military is an open question, the United States surprisingly makes no argument that the military is exempt from the byzantine rules that we have imposed upon the States in their administration of the death penalty.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BETHENERGY MINES, INCORPORATED,
Petitioner,
v.
JAMES HENDERSON; DIRECTOR, No. 99-2495
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board.
(98-1357-BLA, 92-449-BLA)
Argued: November 3, 2000
Decided: February 16, 2001
Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: William Steele Mattingly, JACKSON & KELLY,
P.L.L.C., Morgantown, West Virginia, for Petitioner. Barry H.
Joyner, Office of the Solicitor, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondent Director; Ray
Edmond Ratliff, Jr., Charleston, West Virginia, for Respondent Hen-
2 BETHENERGY MINES v. HENDERSON
derson. ON BRIEF: Henry L. Solano, Solicitor of Labor, Donald S.
Shire, Associate Solicitor, Christian P. Barber, Counsel for Appellate
Litigation, Office of the Solicitor, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Respondent Director.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Respondent James Henderson was awarded black lung benefits by
an ALJ in 1987. Petitioner BethEnergy Mines, Inc., Henderson’s
employer, sought modification of the award, contending that the ALJ
had made "a mistake in a determination of fact" in initially awarding
benefits to Henderson. Upon reconsideration, the ALJ found, based
on new evidence proffered by BethEnergy, that it had been mistaken
in a determination of fact. Nevertheless, the ALJ denied reopening
because it held that reopening would not "render justice under the
Act." The Benefits Review Board affirmed. For the reasons that fol-
low, we reverse and remand.
I.
As with many cases involving black lung benefits, James Hender-
son’s claim has a complicated and protracted history. Henderson
worked as a coal miner for 45 years, primarily as a motorman and
general laborer. J.A. 45, 52, 61, 72. Over time, Henderson developed
breathing difficulties, and he filed an application for black lung bene-
fits on February 1, 1980.1 J.A. 15. His claim was initially denied by
1
Because Henderson’s application was originally filed between the
dates of June 30, 1973, and April 1, 1980, the disposition of his claim
is governed by the "interim regulations" promulgated by the Secretary of
Labor. See 20 C.F.R. pt. 727; Mullins Coal Co. v. Director, OWCP, 484
U.S. 135, 137 (1987). The "interim regulations" created the interim pre-
sumption at issue in this case.
BETHENERGY MINES v. HENDERSON 3
the Department of Labor, prompting him to request a hearing before
an ALJ. J.A. 22. More than seven years after Henderson filed his
application, the ALJ awarded benefits, holding that Henderson had
invoked, and BethEnergy Mines, Inc. ("BethEnergy")2 had failed to
rebut, the interim presumption codified at 20 C.F.R. § 727.203. J.A.
15-17.
The federal black lung statute provides disability benefits to a
miner if: (1) he or she is totally disabled; (2) the disability was
caused, at least in part, by pneumoconiosis; and (3) the disability
arose out of coal mine employment. See Mullins Coal Co. v. Director,
OWCP, 484 U.S. 135, 141 (1987). Each of the elements for eligibility
is presumed under section 727.203(a) if a miner has been engaged in
at least ten years of coal mine employment and meets one of five reg-
ulatory requirements, which are aimed at determining whether a
claimant has pneumoconiosis. See 20 C.F.R. § 727.203(a). The types
of medical evidence that can be used to satisfy the requirements for
invocation of the interim presumption include, inter alia, x-rays,
blood gas and pulmonary studies, and documented medical opinions.
See 20 C.F.R. § 727.203(a)(1)-(4).
At the time of the hearing before the ALJ, the prevailing law in this
circuit was that even "credible evidence [of] a [single] qualifying X-
ray indicat[ing] the presence of pneumoconiosis" was sufficient to
invoke the interim presumption. Stapleton v. Westmoreland Coal Co.,
785 F.2d 424, 426 (4th Cir. 1986) (en banc), rev’d, 484 U.S. 135
(1987). The record in Henderson’s case contained two positive x-ray
readings. Consequently, BethEnergy conceded that Henderson had
met the Stapleton test, but sought to rebut the presumption, despite
the two positive x-rays, by establishing that Henderson was able to do
his "usual coal mine work or comparable and gainful work" or that
his total disability "did not arise in whole or in part out of coal mine
employment." 20 C.F.R. § 727.203(b)(2), (3).
In awarding benefits to Henderson, the ALJ found that Henderson
had invoked the interim presumption because "[t]he x-ray evidence
establishes and the Employer concedes that Claimant has pneumoco-
2
During the pendency of Henderson’s claim, Bethlehem Mines, Inc.,
has reorganized and is now known as BethEnergy Mines, Inc.
4 BETHENERGY MINES v. HENDERSON
niosis." J.A. 15. The ALJ also concluded that BethEnergy failed to
rebut the interim presumption. J.A. 15-17.
The BRB affirmed the award of benefits to Henderson, and
BethEnergy filed a motion for reconsideration, which the BRB, sitting
en banc, denied. J.A. 19-20. We affirmed the BRB’s decision by pub-
lished opinion. See Bethlehem Mines Corp. v. Henderson, 939 F.2d
143 (4th Cir. 1991). Approximately two months following our deci-
sion in Bethlehem Mines, BethEnergy filed a timely petition for modi-
fication pursuant to 20 C.F.R. § 725.310(a). J.A. 37-39. That section
provides:
Upon his or her own initiative, or upon the request of any
party on grounds of a change in conditions or because of a
mistake in a determination of fact, the deputy commissioner
may, at any time before one year after the denial of a claim,
reconsider the terms of an award or denial of benefits.3
BethEnergy petitioned for modification on the ground that the ALJ
was mistaken when it concluded that Henderson had invoked the
interim presumption with qualifying x-ray evidence. Its petition was
primarily based upon two events occurring after the ALJ awarded
benefits to Henderson: (1) Dr. Zaldivar recanted a prior positive x-ray
reading, which was a basis for the ALJ’s original award of benefits,
stating that the poor quality of the x-ray had caused him to mistakenly
conclude that it showed pneumoconiosis, J.A. 43, 121; and (2) the
Supreme Court rejected Stapleton’s rule that the interim presumption
could be invoked with one qualifying item, adopting instead a
requirement that the claimant prove an "invocation fact by a prepon-
derance of the evidence," Mullins, 484 U.S. at 154, 161 n.35.
BethEnergy not only relied on Zaldivar’s recantation in demon-
strating that Henderson was no longer entitled to the interim presump-
tion under Mullins, but it also presented additional x-ray evidence
showing that Henderson did not have pneumoconiosis. By the time of
3
Although the modification regulation refers only to a "deputy com-
missioner," we have previously held that the term also includes "an ALJ
to whom a modification request has been referred." Jessee v. Director,
OWCP, 5 F.3d 723, 725 n.2 (4th Cir. 1993).
BETHENERGY MINES v. HENDERSON 5
the modification hearing before the ALJ, BethEnergy had obtained 41
negative x-ray readings versus the sole positive x-ray reading by Dr.
Bassali.4 J.A. 171-72.
Despite these developments, the ALJ did not conclude that there
had been a "mistake in a determination of fact" until after the BRB
had remanded the case twice. J.A. 193-94. Then, though the ALJ
found "that the preponderance of the evidence does not establish the
existence of pneumoconiosis," the ALJ still refused to reopen the
record on the ground that doing so would not "render justice under the
Act." J.A. 189. First, the ALJ noted that BethEnergy had conceded
the existence of pneumoconiosis under section 727.203(a)(1), and had
failed to challenge invocation of the interim presumption based upon
Mullins or any other ground before the BRB or this court. Second, the
ALJ found that BethEnergy "sat on its heels" by failing to develop its
own medical evidence prior to the first hearing. J.A. 188. Therefore,
the ALJ denied modification, deciding it was improper to allow
BethEnergy either to relitigate its claim through the back door "after
it failed on a previous theory" or to correct counsel’s misjudgments
belatedly. J.A. 189. The BRB affirmed, relying on the reasoning of
the ALJ. J.A. 199. BethEnergy filed a timely petition for review in
this court. J.A. 200-203.
II.
The modification of an award or denial of benefits under the Black
Lung Benefits Act can be based upon either a "mistake in a determi-
nation of fact" or a "change in conditions." See 20 C.F.R. § 725.310.5
We must reverse an ALJ’s decision on a modification request if the
ALJ abused its discretion. See O’Loughlin v. Parker, 163 F.2d 1011,
1012 (4th Cir. 1947); see also Betty B Coal Co. v. Director, OWCP,
194 F.3d 491, 501 (4th Cir. 1999) (noting that "we would not hesitate
4
BethEnergy informed the court at argument that the x-ray read by
Bassali has been destroyed and, as a result, no further readings of that x-
ray are possible.
5
The modification procedures for black lung cases are expressly incor-
porated from the Longshore and Harbor Workers’ Compensation Act.
See 30 U.S.C. § 932(a) (incorporating 33 U.S.C. § 922); Consolidation
Coal Co. v. Borda, 171 F.3d 175, 180 (4th Cir. 1999).
6 BETHENERGY MINES v. HENDERSON
to correct abuses" of an ALJ’s discretion to grant or deny reopening).
Under the abuse of discretion standard, reversal is warranted when we
have "a definite and firm conviction" that the tribunal below "commit-
ted a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors." See Westberry v. Gislaved Gummi
AB, 178 F.3d 257, 261 (4th Cir. 1999) (internal quotations omitted).
Although the ALJ was permitted to consider whether reopening
would "render justice under the Act," we conclude that the ALJ nev-
ertheless abused its discretion by misapplying that standard to the
case at hand.6 The ALJ did not deny reopening because of a conclu-
sion that there was no mistake of fact or change in conditions. Nor
did the ALJ find that BethEnergy had engaged in misconduct — such
as improperly withholding evidence or filing multiple modification
requests in order to harass a claimant — which would have raised
equitable concerns counseling against a reopening of the proceedings.
Rather, the ALJ denied rehearing essentially in the interest of finality,
to prevent BethEnergy from getting "another bite at the apple."
We have, however, expressly disavowed the importance of finality
in such circumstances, concluding instead that "to the extent the ‘prin-
ciple of finality’ ever applies to black lung claims,’" it does not apply
to properly filed modification requests. Jessee, 5 F.3d at 725; see also
Borda, 171 F.3d at 180 (stating that the modification provision in
black lung cases is "inherently broad" and has been interpreted "ex-
pansively," and that the principle of finality does not apply in black
lung claims as it does in ordinary lawsuits). Similarly has the
Supreme Court rejected the application of res judicata to modification
requests. See Jessee v. Director, OWCP, 5 F.3d 723, 725 (4th Cir.
6
Contrary to BethEnergy’s assertion, we cannot say that the ALJ
applied an incorrect legal standard when it considered whether reopening
the award of benefits to Henderson would "render justice under the Act."
The Supreme Court has declared that an ALJ’s exercise of discretion in
modification cases may be guided by that principle. See O’Keeffe v.
Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971) (per curiam)
(stating that an ALJ should "review factual errors in an effort ‘to render
justice under the Act’"); see also Betty B Coal, 194 F.3d at 497-98
("[T]he modification procedure is flexible, potent, easily invoked, and
intended to secure ‘justice under the Act.’").
BETHENERGY MINES v. HENDERSON 7
1993) (citing Banks v. Chicago Grain Trimmers Ass’n, 390 U.S. 459,
461-65 (1968)). Finality and res judicata simply are not appropriate
factors in adjudicating modification requests because an ALJ may
simply reverse a decision, with or without a request for modification,
even when there is no new evidence or solely new evidence to con-
sider. See O’Keeffe, 404 U.S. at 255; Jessee, 5 F.3d at 725. In modifi-
cation cases, the paramount interest is in ensuring that eligible
claimants receive benefits and that ineligible claimants do not, and
when that interest clashes with an interest in finality, the latter must
yield.
The BRB stated in a related case that "[o]ne could hardly find a
better reason for rendering justice than that it would be unjust or
unfair to require an employer to pay benefits to a miner who does not
meet the requirements of the Act." L.C. Branham, 21 Black Lung
Rep. 1-79, 1-83 (Ben. Rev. Bd. March 19, 1998); see also 30 U.S.C.
§ 901(a) ("[T]he purpose of this subchapter [is] to provide benefits,
in cooperation with the States, to coal miners who are totally disabled
due to pneumoconiosis . . . .") (emphasis added). Because here, too,
due to a lack of evidence of pneumoconiosis, it may well be unfair
or unjust to require the employer to pay benefits, the ALJ in its discre-
tion should have granted the petition to reopen.
III.
The only remaining question is whether we should remand this
case to the BRB for further proceedings or decide Henderson’s eligi-
bility for benefits today. The Director urges a remand because the
ALJ placed the burden of persuasion on Henderson to prove that he
was eligible for the interim presumption, rather than requiring
BethEnergy to disprove that fact. See Metropolitan Stevedore Co. v.
Rambo, 521 U.S. 121, 139 (1997) (stating that the burden of persua-
sion for a modification request is on the proponent of such request).
BethEnergy does not dispute that Metropolitan Stevedore controls or
that the burden of persuasion was placed on the wrong party; rather,
it contends that remand would be a "waste of time." We find it unnec-
essary to remand on the question of whether a mistake in fact has
occurred based on the x-ray evidence. There are now 41 negative x-
ray readings in the record, 25 of which are interpretations of x-rays
that were taken after the sole positive x-ray reading by Bassali. J.A.
8 BETHENERGY MINES v. HENDERSON
172. And the x-ray read by Bassali — the only x-ray which could sup-
port invocation of the interim presumption — has been destroyed. No
reasonable ALJ could conclude that Henderson is eligible for the
interim presumption under section 727.203(a)(1) based on the x-ray
evidence, regardless of which party has the burden of establishing a
"mistake in a determination of fact." We do believe, however, that
remand is appropriate to determine whether Henderson can invoke the
interim presumption through other qualified medical evidence. Due to
its denial of reopening, the ALJ has yet to have the opportunity to
independently consider whether Henderson could invoke the interim
presumption through blood gas or pulmonary studies or other quali-
fied medical evidence.
The decision of the Board is reversed and the case is remanded
with instructions to reopen proceedings.
REVERSED AND REMANDED WITH INSTRUCTIONS
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110 F.3d 798
U.S.v.Cardona*
NO. 96-4284
United States Court of Appeals,Eleventh Circuit.
Mar 10, 1997
Appeal From: S.D.Fla. ,No.8706061crncr
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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188 P.3d 487 (2008)
2008 UT App 210
Marlene YIRAK, Plaintiff and Appellant,
v.
DAN'S SUPER MARKETS, INC.; Dole Food Company, Inc.; and Dole Fresh Vegetables, Defendants and Appellee.
No. 20070443-CA.
Court of Appeals of Utah.
May 30, 2008.
*488 D. Joseph Cartwright, Salt Lake City, for Appellant.
Julianne P. Blanch, Salt Lake City, for Appellee.
Before Judges DAVIS, McHUGH, and ORME.
MEMORANDUM DECISION
McHUGH, Judge:
¶ 1 Appellant Marlene Yirak appeals the trial court's grant of summary judgment in favor of Appellee Dan's Super Markets, Inc. (Dan's). We affirm.
¶ 2 Yirak argues that the trial court erred in granting summary judgment in favor of Dan's on the ground that Dan's falls under the passive retailer exception to strict liability under the Utah Product Liability Act (Product Liability Act),[1] Utah Code Ann. §§ 78-15-1 to -7 (2002). Yirak argues that Dan's is not a passive retailer because the glass that caused her injury and that was allegedly contained in the prepackaged salad she purchased from Dan's "could have entered into the bag while in" Dan's control. In opposition, Dan's asserts that summary judgment was properly granted because Yirak has produced no admissible evidence that the glass infiltrated the bag while in Dan's possession. Dan's specifically contends that Yirak (1) admitted she had no evidence to support a finding that the glass first entered the salad after it was packaged by Dole Food Company, Inc. and Dole Fresh Vegetables, Inc. (collectively Dole) and delivered to Dan's, and (2) did not provide any legal justification for why the passive retailer exception does not apply.[2]
¶ 3 We review a trial court's "legal conclusions and ultimate grant or denial of summary judgment for correctness . . . and view[] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted). "`[W]e accord no deference to the trial court's resolution of the legal issues presented' and `determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact.'" Ervin v. Lowe's Cos., 2005 UT App 463, ¶ 8, 128 P.3d 11 (quoting Ward v. Intermountain Farmers Ass'n, 907 P.2d 264, 266 (Utah 1995)). "The determination of whether a passive seller of a product can be held strictly liable under the [Utah Liability Reform Act (Liability Reform Act)] is based on the trial court's interpretation of a statute, which we review for correctness without deference to the trial court's conclusions." Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 5, 94 P.3d 301.
¶ 4 Utah's Product Liability Act sets forth the boundaries for imposing liability on a "manufacturer or other initial seller" who sells a defective product whose use results in "personal injury, death, or property damage," Utah Code Ann. § 78-15-6. See Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1278-79 (10th Cir.2003) (stating that the Product Liability Act "sets limits on" the common-law cause of action of products liability, but does not "set[] forth the elements of a products liability cause of action"). Because the Utah Legislature eliminated joint and several liability in 1986 through the Liability Reform Act, see Utah Code Ann. § 78-27-40(1) (2002), recovery of damages under the Product Liability Act is proportionate to *489 the percentage of fault attributable to each defendant. See Sanns, 2004 UT App 203, ¶¶ 13, 17-19, 94 P.3d 301.
¶ 5 In Sanns v. Butterfield Ford, 2004 UT App 203, 94 P.3d 301, this court concluded that the plain language of the preexisting Liability Reform Act and its legislative history support the recognition of an exception under the related Product Liability Act for passive retailers. See id. ¶¶ 11-20. The Sanns court defined a passive retailer as a seller who does not "participate in the design, manufacture, engineering, testing, or assembly" of a product. Id. ¶ 21. This exception is based on the rationale that the traditional tort law principlethat the seller of a product is liable"conflicts with the clear language and intent of the [Liability Reform Act], which states that `[n]o defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributed to that defendant under Section 78-27-39.'" Id. ¶ 15 (second alteration in original) (quoting Utah Code Ann. § 78-27-38(3) (2002)); see also id. ("[U]nder general tort law principles, as between an injured buyer of a product, and the seller of the product, the seller must bear the liability." (citing Schaerrer v. Stewart's Plaza Pharmacy, 2003 UT 43, ¶ 16, 79 P.3d 922; Restatement (Second) of Torts § 402A (1965))). Thus, a passive retailer is not subject to a strict liability claim under the Product Liability Act where the manufacturer is a named party to the action.[3]Id. ¶¶ 15, 21. When one party is "merely a passive retailer. . . . [, t]he strict liability `fault' . . ., if any, lies with the manufacturer, not with . . . the passive retailer."[4]Id. ¶ 21.
¶ 6 To succeed on a motion for summary judgment, Dan's must show "both that there is no material issue of fact and that [it] is entitled to judgment as a matter of law." Orvis, 2008 UT 2, ¶ 10, 177 P.3d 600. Specifically, Dan's "must present evidence sufficient to establish that [the passive retailer exception] is appropriate under the facts of the case, and that no material issues of fact remain." Id. The burden then shifts to Yirak "to identify contested material facts, or legal flaws in the application of [the passive retailer exception]." Id. We agree with the trial court that Dan's met its burden under the summary judgment standard, see id., and that Yirak did not.
¶ 7 Dan's presented evidence that it is a passive retailer by submitting an affidavit from its store director stating that it does not "manufacture[], design[], repackage[], label[], or inspect[] the packaged salads supplied by Dole." See Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301 (defining a passive retailer as a seller who does not "participate in the design, manufacture, engineering, testing, or assembly" of a product). Had Yirak provided contradictory evidence that Dan's performed any of those activities in connection with the prepackaged salad, there would be a genuine issue of material fact regarding application of the passive retailer exception. The only facts alleged by Yirak, however, are that glass entered the salad at some unidentified time and that Dan's did not inspect the salad before selling it. Indeed, Yirak agreed that the facts in Dan's motion, including those supported by the store director's affidavit, were undisputed. Furthermore, after more than a year of discovery, Yirak could provide no evidence that Dan's opened the prepackaged salad while it was in its possession, that the bag was open or had any holes in it when it was sold to her, that Dan's knew there was glass in the salad, or that any *490 other customer found glass in salad purchased from Dan's before or since her purchase. On the contrary, Yirak conceded that the bag was unopened and without holes when she purchased it. Consequently, Yirak failed to present any evidence that Dan's took any action, other than as a passive retailer. As a result, summary judgment was appropriate. See id. ¶ 9 ("[W]hen a party fails to produce evidence sufficient to meet one of the elements of a claim, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." (internal quotation marks omitted)).
¶ 8 Because Dan's carried its burden to show that the passive retailer exception is appropriate under the facts of this case, see Orvis, 2008 UT 2, ¶ 10, 177 P.3d 600; Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301, and because Yirak failed to identify any contested material facts or legal flaws to the application of that exception, see Orvis, 2008 UT 2, ¶ 10, 177 P.3d 600; Sanns, 2004 UT App 203, ¶ 9, 94 P.3d 301, Dan's was entitled to judgment as a matter of law.
¶ 9 Affirmed.
¶ 10 WE CONCUR: JAMES Z. DAVIS and GREGORY K. ORME, Judges.
NOTES
[1] In addition, Yirak argued to the trial court that summary judgment was not warranted because Dan's was also negligent by breaching a duty to provide safe food to Yirak. However, Yirak does not appeal this issue, and we therefore do not address it.
[2] Dan's also argues that Yirak's claim is barred by the two-year statute of limitations under the Product Liability Act. See Utah Code Ann. § 78-15-3 (2002). Because we affirm the trial court's grant of summary judgment in favor of Dan's on other grounds, we do not address this argument.
[3] In this case, the manufacturer, Dole, was named as a defendant. The trial court first granted summary judgment in favor of Dan's from the bench and then dismissed Yirak's claims against Dole in subsequent orders; the court granted summary judgment to Dole on Yirak's negligence claim because she brought forth "absolutely no evidence" of negligence, and her strict liability claim was barred by the statute of limitations. Yirak does not appeal the trial court's dismissal of her claims against Dole.
[4] Other jurisdictions have adopted this approach by statute. See, e.g., Del.Code Ann. tit. 18, § 7001 (1999) (providing a sealed container defense if seller sold product in an "unaltered form," had no knowledge of or could not have discovered the defect with reasonable care, and did not manufacture, design, alter, assemble, or mishandle the product); Md.Code Ann., Cts. & Jud. Proc. § 5-405 (West 2002) (same); N.C. Gen.Stat. § 99B-2(a) (2007) (providing sealed container defense or a defense for selling a product "under circumstances in which the seller was afforded no reasonable opportunity to inspect").
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166 N.W.2d 406 (1969)
184 Neb. 178
STATE of Nebraska, Appellee,
v.
Robert William LOSIEAU, Appellant.
No. 37059.
Supreme Court of Nebraska.
March 14, 1969.
*407 Robert William Losieau, pro se.
Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, Mc-COWN, and NEWTON, JJ., and WALTER H. SMITH, District Judge.
WALTER H. SMITH, District Judge.
This is an appeal from the overruling of a motion to vacate and set aside a conviction and sentence for burglary and a sentence under the Habitual Criminal Law and from the overruling of a motion for new trial, brought under the provisions of the Post Conviction Act.
The record shows that the defendant, Robert William Losieau, was found guilty by a jury of the crime of burglary under section 28-532, R.R.S.1943, as alleged in Count I, and was found by the trial court to be a habitual criminal as alleged in Count II of the information. On January 12, 1962, defendant was sentenced for a term of 20 years in the Nebraska State Penitentiary. On June 6, 1968, defendant filed a motion to vacate and set aside said sentence alleging as reasons that he was deprived of a constitutional right to a trial by jury on the habitual criminal charge and that subsection (2) of the habitual criminal statute, section 29-2221, R.S. Supp., 1967, is unconstitutional in that it deprives an accused of a trial by jury. The trial court overruled this motion on June 10, 1968, on June 17, 1968, defendant filed a motion for a new trial which was overruled on June 18, 1968, and appeal taken to this court.
Defendant contends that he was denied a constitutional right to trial by jury on the habitual criminal charge and that subsection (2) of section 29-2221, R. S.Supp., 1967, was and is unconstitutional in that it deprives an accused of a right to a jury trial on serious offenses where the penalty is 2 years or more. In support of his position defendant cites Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. This case holds that the defendant, accused under the Louisiana law of simple battery, a misdemeanor punishable by 2 years imprisonment and $300 fine, was entitled under the Sixth and Fourteenth Amendments to a jury trial and that a crime punishable by 2 years in prison is a "serious crime" and not a "petty offense," so that the Sixth and Fourteenth Amendments require the State to grant a jury trial. This case is no authority for the proposition here contended for by the defendant and is inapplicable to the question before the court. As will be hereinafter *408 set forth, the hearing on Count II as to habitual criminal was not the trial of a new or separate offense. Another case cited by defendant is Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L. Ed.2d 442. This was a habeas corpus proceeding commenced by a state prisoner in which the Supreme Court held that in the trial on a charge of being a habitual criminal the rule followed by the court concerning appointment of counsel in other types of criminal trials is equally applicable to proceedings under the Virginia statute, and denial of counsel where defendant requested one entitled him to a release on habeas corpus. The issue of trial by jury was not raised or decided by the court. It must be recognized that a defendant's right to counsel is not coextensive with the right to a jury trial. Similarly, other cases cited by the defendant do not support his contentions and no good purpose can be served by reviewing them here.
Subsection (2) of section 29-2221, R.S. Supp., 1967, known as the Habitual Criminal Law, provides as follows: "Where punishment of an accused as an habitual criminal is sought, the facts with reference thereto must be charged in the indictment or information which contains the charge of the felony upon which the accused is prosecuted, but the fact that the accused is charged with being an habitual criminal shall not be an issue upon the trial of the felony charge and shall not in any manner be disclosed to the jury. If the accused is convicted of a felony and before sentence is imposed, a hearing shall be had before the court alone as to whether such person has been previously convicted of prior felonies. The court shall fix a time for the hearing and notice thereof shall be given to the accused at least three days prior thereto. At the hearing, if the court shall find from the evidence submitted that the accused has been convicted two or more times of felonies and sentences imposed therefor by the courts of this or any other state, or by the United States, the court shall sentence such person so convicted as an habitual criminal."
This court has repeatedly sustained the constitutionality of the Habitual Criminal Law. In State v. Huffman, 181 Neb. 356, 148 N.W.2d 321, this court said: "The contention that the recidivist statute, section 29-2221, R.R.S.1943, violates constitutional guaranties of due process and equal protection is not persuasive. See, State v. Konvalin, 179 Neb. 95, 136 N.W. 2d 227; Poppe v. State, 155 Neb. 527, 52 N.W.2d 422; Rains v. State, 142 Neb. 284, 5 N.W.2d 887; Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82." See, also, Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L. Ed.2d 606.
In Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82, this court held: "This court is committed to the doctrine, viz.: * * * The legislature may enact an habitual criminal law punishing habitual offenders. * * * The habitual criminal law does not set out a distinct crime, but provides that the repetition of criminal conduct aggravates the guilt and justifies heavier penalties. * * * The fact that a defendant has been guilty of a second felony does not make him guilty under the habitual criminal law of an offense for which he may be separately sentenced, but increases the punishment for the last felony. * * `Habitual criminality' is, under the habitual criminal law, a state rather than a crime, and warrants greater punishment because of past conduct." See, also, State v. Solano, 181 Neb. 716, 150 N.W.2d 585; Haffke v. State, 149 Neb. 83, 30 N.W.2d 462; Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403; Jones v. State, 147 Neb. 219, 22 N.W.2d 710; State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428.
In Nebraska, under the Habitual Criminal Law and the holdings of this court, a charge that one accused of a crime as a habitual criminal is not a charge of a distinct offense or crime but is rather a direction of attention to facts which under the statute and the crime charged in the information are determinative of the penalty to be imposed. The Habitual Criminal Law of this state does not purport to create *409 a new and separate criminal offense, but provides merely that the repetition of criminal conduct aggravates the guilt and justifies greater punishment. The increased punishment for the latest felony is a court determination and not one for a jury.
The judgment of the district court is correct and is affirmed.
Affirmed.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 30, 2008
No. 07-60552
Summary Calendar Charles R. Fulbruge III
Clerk
EDUARDO FRANCISCO HUSBAND, also known as Eddie Husband
Petitioner
v.
MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A72 184 338
Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges.
PER CURIAM:*
Eduardo Francisco Husband is a native and citizen of Panama who became
a lawful permanent resident of the United States in 1992. On April 12, 2002, he
was convicted of attempted second degree rape under New York Penal Law
§§ 110.00 and 130.30, and was subsequently charged with removability as an
aggravated felon. At a hearing before an Immigration Judge, Husband conceded
removability, but asserted claims for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and protection under the Convention
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-60552
Against Torture. The Immigration Judge found Husband removable,
pretermitted his application for asylum, denied his application for withholding
of removal, and denied his request for protection under the Convention Against
Torture.
The Board of Immigration Appeals dismissed Husband’s appeal,
concluding that, (1) his conviction for an aggravated felony makes him
statutorily ineligible for asylum; (2) he was not entitled to withholding of
removal under the INA, because he failed to show a clear probability that his life
or freedom would be threatened on account of a protected ground; and (3) he was
not eligible for protection under the Convention Against Torture since he failed
to show that he more likely than not would be tortured by, or with the consent
or acquiescence of, the Panamanian government.
Proceeding pro se, Husband petitions for review of the BIA’s decision,
arguing that his conviction under New York Penal Law § 130.30 for attempted
rape in the second degree was not an aggravated felony under the INA, and that
he is entitled to relief under the Convention Against Torture because those who
seek him harm in Panama would do so at the instigation of, or with the consent
or acquiescence of, a public official or other person acting in an official capacity.1
We lack jurisdiction to review a final order of removal against an alien
convicted of an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). However, we retain
jurisdiction over constitutional questions and questions of law. 8 U.S.C.
§ 1252(a)(2)(D). Whether an offense is an aggravated felony is a question of law
that we review de novo. Andrade v. Gonzales, 459 F.3d 538, 542-44 (5th Cir.
2006).
A person is guilty of rape in the second degree under § 130.30 when,
1
Because he does not brief his withholding of removal and asylum claims,
Husband has waived or abandoned them. See Calderon-Ontiveros v. I.N.S., 809
F.2d 1050, 1052 (5th Cir. 1986); Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir.
2003)
2
No. 07-60552
(1) being eighteen years old or more, he or she engages in sexual
intercourse with another person less than fifteen years old; or
(2) he or she engages in sexual intercourse with another person who
is incapable of consent by reason of being mentally disabled or
mentally incapacitated.
N.Y. PENAL LAW § 130.30 (2001). Where a statute “defines multiple offenses, at
least one of which does not describe an aggravated felony, we apply a modified
categorical approach, under which we may also examine certain additional
documents (if contained in the record framing the guilty plea conviction) to
determine whether the conviction was ‘necessarily’ for a particular crime defined
by the statute that meets the aggravated felony criterion.” Larin-Ulloa v.
Gonzales, 462 F.3d 456, 464 (5th Cir. 2006). Among the documents we may
consult under the modified categorical approach are the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.
Shepard v. United States, 544 U.S. 13, 16 (2005) (interpreting Taylor v. United
States, 495 U.S. 575 (1990)).
The judgment shows that Husband was convicted of one count of
attempted rape in the second degree. Although it does not specify which of the
41 counts of the indictment form the basis of conviction, each of the eight counts
charging rape in the second degree allege that Husband violated § 130.30 by
“being eighteen years old or more [and] engag[ing] in sexual intercourse with
. . . a female less than fourteen years old.” This statutory language makes clear
that Husband pled guilty to § 130.30(1) of the New York Penal Law, which
3
No. 07-60552
prohibits statutory rape.2 Thus, we need not address whether a violation of
§130.30(2) would constitute an aggravated felony.
An aggravated felony under the Immigration and Nationality Act includes
“murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). An
attempt is the equivalent of the underlying offense for purposes of the
aggravated felony determination. 8 U.S.C. § 1101(a)(43)(U). Although Congress
did not define “sexual abuse of a minor” in the statute, this Court has
interpreted it to encompass Texas Penal Code § 21.11(a)(2), which makes
unlawful an individual knowingly exposing himself to a minor with the intent
to arouse or gratify sexual desire. United States v. Zavala-Sustaita, 214 F.3d
601, 604-07 (5th Cir. 2000). In Zavala-Sustaita, we observed that, (1) “the
structure of § 1101(a)(43) counsels against applying a narrow reading of the
phrase”; (2) Congress apparently intended a broad reading when it chose not to
expressly limit the meaning of “sexual abuse of a minor”; and (3) Congress
conspicuously failed to narrow the definition by requiring a minimum sentence
length. Id. at 605-06.
The Second Circuit has affirmed the BIA’s conclusion that the New York
crime of rape in the third degree under Penal Law § 130.25(2) constitutes an
aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Mugalli v. Ashcroft, 258 F.3d
52, 56-57 (2nd Cir. 2001). That section makes it unlawful for an individual older
than 21 to engage in sexual intercourse with another person younger than 17.
N.Y. PENAL LAW § 130.25(2) (2001). The court explained that the BIA’s
determination was consistent with both Congressional intent to provide “a
comprehensive scheme to cover crimes against children,” and the generally
understood meaning of the term “sexual abuse.” Id. at 58-59 (citations omitted).
2
Penal Law § 110.00 states, “A person is guilty of an attempt to commit
a crime when, with intent to commit a crime, he engages in conduct which tends
to effect the commission of such crime.” N.Y. PENAL LAW § 110.00 (1965).
4
No. 07-60552
Because the conduct prohibited by § 130.30(1) fits squarely within the
“ordinary, contemporary, common reading of the phrase sexual abuse of a
minor,” and consistent with our holding in Zavala-Sustaita and the Second
Circuit’s holding in Mugalli, we affirm the BIA’s conclusion that Husband’s
conviction for the New York crime of attempted rape in the second degree
constitutes an aggravated felony. See Zavala-Sustaita, 214 F.3d at 604.
Since Husband’s conviction qualifies as an aggravated felony, we lack
jurisdiction to review the BIA’s determination of his claims under the
Convention Against Torture unless he raises a question of law or a constitutional
claim. See 8 U.S.C. § 1252(a)(2)(C)&(D). Husband’s arguments on appeal do not
raise a question of law or a constitutional question over which this court has
jurisdiction. See Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir.
2006). Accordingly, Husband’s petition for review must be dismissed.
The petition for review is DENIED IN PART and DISMISSED IN PART.
5
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAUNDRA MCNAIR,
Plaintiff,
v. Civil Action No. 12-248 (JEB)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiff Saundra McNair, a former hearing officer with the District of Columbia
Department of Consumer and Regulatory Affairs, has suffered from lupus and a series of related
complications since 2001. She brought this action against the District under the Americans with
Disabilities Act, alleging that DCRA both failed to provide her with reasonable accommodations
while she recovered from back surgery and retaliated against her by threatening termination after
she requested those accommodations. This Court dismissed McNair’s retaliation claims in a
2012 Memorandum Opinion, but it allowed her to commence discovery relating to the
allegations in her reasonable-accommodation count. See McNair v. District of Columbia
(McNair I), 903 F. Supp. 2d 71 (D.D.C. 2012). Discovery now complete, Defendant moves for
summary judgment. Although Plaintiff’s remaining accommodation claims are hardly robust –
indeed, the Court concludes that certain ones fail as a matter of law – some are sufficient to
withstand the District’s Motion and proceed to trial.
I. Background
Many of the facts in this case are disputed. On a motion for summary judgment, the Court
must take the evidence of the non-movant – here, Plaintiff – as true and must view the facts in
1
the light most favorable to her. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In setting forth these facts, therefore, the Court does not endorse them as true; instead, they are
simply allegations for which Plaintiff provides record support – in this case largely by reference
to her deposition. It goes almost without saying, then, that where Plaintiff provides no such
support, the Court may assume Defendant’s version of the facts – itself supported by record
evidence – to be true.
McNair was diagnosed with systemic lupus erythematosus in 2001. See Opp., Exh. A
(Deposition of Saundra McNair) at 131. She has suffered from a variety of complications since
then, including difficulty recovering from physical ailments ranging from the common cold to
complex surgeries; difficulty with sitting, standing, walking, and concentrating; and occasional
bouts of fatigue and numbness. See id. at 158-59. Despite these challenges, McNair began
working as a Hearing Examiner with DCRA in August 2002, see id. at 12-13, where her job
responsibilities included conducting administrative hearings, considering and evaluating written
motions and other case filings, engaging in legal research, drafting decisions and orders, and
communicating with all parties involved in administrative cases before her. See Mot., Exh. P
(Hearing Examiner Official Job Description), ¶¶ 3-8. She asserts that she notified her employer
of her disability and was told “that if [she] needed various accommodations to make [DCRA]
aware and they would provide them.” McNair Depo. at 58-59.
In November 2005, McNair was diagnosed with degenerative-disc disease and had to
undergo several back procedures, including at least one surgery. See id. at 51-53. She took
extended medical leave during her recovery; this leave expired on or around May 11, 2006, see
Def. Statement of Undisputed Material Facts, ¶ 6.
2
At this point, the parties’ accounts diverge. When her leave expired, McNair avers, her
supervisor, Keith Anderson, verbally indicated that she could work from home for some time.
See McNair Depo. at 61-62. She began to do so, resuming work on administrative cases that
were pending at the beginning of her extended leave. See id. at 73-74. According to the District,
however, Anderson notified McNair on July 7, 2006, “that the DCRA had not authorized [her]
informal demand to work from home and that [she] would have to submit her reasonable
accommodation request in writing.” See Def. SUMF, ¶ 6. McNair, by contrast, contends that
DCRA “stopped [her] accommodations” – that is, her pre-existing authorization to work from
home. See McNair Depo. at 62; Opp. at 2 (arguing that the July 2006 decision “revoke[d] the
reasonable accommodation previously granted”).
McNair submitted a formal written request for accommodations on July 14, 2006,
seeking, among other things, permission to work from home two or three days per week. See
McNair Depo. at 68-69; Mot., Exh. G (McNair’s List of Proposed Accommodations). On
August 3, 2006, DCRA informed her that it could not permit her to work from home and that she
had been designated absent without leave (AWOL). See Mot., Exh. F (Letter from Deborah
Bonsack to Saundra McNair). In the meantime, McNair scheduled a meeting with the DCRA
leadership for some time around September 25. See McNair Depo. at 66-69. Ultimately, she
claims, nothing came of that meeting, as Defendant “summarily denied” each of her proposed
reasonable accommodations without making any alternative suggestions. Id. at 66.
Indeed, on September 29, just four days after that meeting, DCRA Director Patrick J.
Canavan reminded McNair of her AWOL status and her lack of work-from-home authorization –
though he did not mention the other accommodations McNair had proposed – and instructed her
to report to work by November 6, 2006, or face possible termination. See Mot., Exh. I (Letter
3
from Patrick Canavan to Saundra McNair). This date was later extended to December 11, 2006.
See Def. SUMF, ¶ 10. On January 4, 2007, McNair, who still had not returned to work, was
given 15-day advance written notice that DCRA intended to remove her from her position. See
Mot., Exh. L (Advance Written Notice of Proposed Removal). She successfully contested her
removal, and, on September 19, 2007, DCRA formally decided not to terminate her. She was
instructed to report to work by October 1, 2007. See Mot., Exh. M (Letter from Linda K. Argo
to Saundra McNair).
McNair finally did return to work on October 1, 2007, see Def. SUMF, ¶ 11, despite
Defendant’s refusal to permit her to work from home or to provide the other accommodations
she requested. See McNair Depo. at 66, 94. Though she had officially been transferred to a
partner agency to serve as a Rental Conversion Specialist, she worked out of the same building,
and her duties were largely the same. See id. at 87-89. She remained in that position until
February 12, 2009, when she resigned to accept a position with the District’s Department of
Employment Services. See Def. SUMF, ¶ 14.
After properly exhausting her administrative remedies, McNair brought this suit against
the District on February 14, 2012, alleging two ADA violations: first, that the District
discriminated against her by failing to provide the reasonable accommodations she requested, see
Compl., ¶¶ 46-51 (Count I); and second, that the District retaliated against her by notifying her of
her proposed termination after she had requested accommodations. See id., ¶¶ 52-56 (Count II).
In a 2012 Memorandum Opinion, this Court dismissed the retaliation claims. Although it noted
that Plaintiff’s briefs were “assuredly deficient,” McNair I, 903 F Supp. 2d at 77, the Court
allowed her to undertake some discovery relating to Count I because “there [was] some language
in her submissions and the District’s that could conceivably [have] create[d] a dispute of material
4
fact.” Id. Discovery complete, Defendant has renewed its Motion for Summary Judgment, to
which the Court now turns.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Liberty Lobby, 477 U.S. at 247-48; Holcomb v. Powell, 433 F.3d 889, 895 (D.C.
Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the
litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is
“genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb,
433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of materials in the record” or “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Liberty
Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary
judgment, the Court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
5
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in her favor. See
Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. Analysis
In seeking summary judgment, the District argues that Plaintiff has failed to establish a
reasonable-accommodation cause of action under the ADA. To make out such a case, McNair
must show that: (1) she was disabled within the meaning of the ADA; (2) DCRA was aware of
her disability; (3) she could have done her job with reasonable accommodations; and (4) she was
denied such accommodations. See 42 U.S.C. § 12112(a), (b)(5)(A); Carr v. Reno, 29 F.3d 525,
529 (D.C. Cir. 1994).
As to the first two elements, Plaintiff has provided substantial evidence that she had lupus
and related back problems at the relevant times and that DCRA was aware of her condition. See
McNair Depo. at 58-59, 131; Mot., Exh. B (Letter from Dr. Andrew T. Lee, Nov. 29, 2005);
Exh. C (Letter from Dr. Lee, Feb. 2, 2006); Exh. D (Letter from Dr. Lee, Apr. 12, 2006).
DCRA, moreover, concedes those points for the purpose of summary judgment. See Mot. at 4-5.
The only issues remaining at this stage, then, are (1) whether McNair could have done her job
with a reasonable accommodation; and (2) if so, whether DCRA actually or constructively
denied her such assistance. The Court takes each inquiry in turn.
A. Potential Reasonable Accommodations
To satisfy the third element of an ADA case, a plaintiff must prove that she is a “qualified
individual” for the purpose of the Act. See 42 U.S.C. § 12112(a); Woodruff v. Peters, 482 F.3d
521, 526 (D.C. Cir. 2007). Such a person is “an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the employment position that
6
such individual holds or desires.” Carr, 29 F.3d at 529 (citing 29 C.F.R. § 1614.203(a)(6)). An
employer need not provide an accommodation, therefore, if the employee still could not perform
the essential functions of her job even with such an accommodation. See Woodruff, 482 F.3d at
526-27. The accommodation also must not impose an “undue hardship” on the employer. See
29 C.F.R. 1630.2(o)(4).
McNair provided DCRA with a list of fifteen proposed accommodations. Nine of those
involved some form of adjusted work schedule, while the other six consisted of modifications to
her workspace and responsibilities in the office. As the District devotes the lion’s share of its
briefs to McNair’s first set of requests, the Court will begin there.
1. Work from Home
The centerpiece of McNair’s request for an adjusted work schedule involved working
from home two to three days each week. Defendant argues that she could not perform her job
with such a schedule and that such accommodations would prove unduly burdensome to the
District. See Mot. at 6. As the Court agrees that McNair could not have worked from home
while tending to the essential functions of her job, it need not address the issue of undue
hardship.
It is true that an employer must consider telecommuting as a potential form of reasonable
accommodation. See 29 C.F.R. § 1630.2(o)(2)(ii); Carr, 23 F.3d at 530 (“in appropriate cases,
[the ADA] requires an agency to consider work at home . . . as [a] potential form[] of
accommodation”) (citation omitted). That obligation, however, only goes so far. The few cases
to touch on this precise subject suggest that if the job in question requires that an employee be
present – that is, if the employee can perform the essential functions of her job only by being in
the office – the employer need not grant a telecommuting request. Cf., e.g., Langon v. Dep’t of
7
Health and Human Servs., 959 F.2d 1053, 1061 (D.C. Cir. 1992) (computer programmer whose
work was entirely electronic could perform essential tasks from home); Graffius v. Shinseki, 672
F. Supp. 2d 119, 127 (D.D.C. 2009) (employee whose job was to reconstruct digital databases
could do same).
EEOC regulations define “essential functions” as “the fundamental duties of the
employment position the individual with a disability holds.” 29 C.F.R. § 1630.2(n)(1). In
determining whether a function is essential to a particular position, the Court is to grant the
employer substantial deference. See Kalekiristos v. CTF Hotel Mgmt. Corp., 958 F. Supp. 641,
660 (D.D.C. 1997); see also 29 C.F.R. § 1630.2(n)(3) (“Evidence of whether a particular
function is essential includes . . . [t]he employer’s judgment as to which functions are
essential.”). Employers may point to a variety of evidence to support a claim that a function is
essential, including “[w]ritten job descriptions prepared before advertising or interviewing
applicants for the job” and “[t]he work experience of past incumbents in the job.” 29 C.F.R. §
1630.2(n)(3); see also 42 U.S.C. § 12111(8).
The District has presented an impressive array of evidence suggesting that the essential
functions of Hearing Examiners and Rental Conversion Specialists included tasks that could be
completed only at the agency’s headquarters. For example, Hearing Examiners are expected to
conduct administrative hearings on rent-adjustment petitions filed by landlords and tenants, and
those hearings are conducted exclusively on site at DCRA. See Mot., Exh. N (Declaration of
Keith Anderson), ¶ 6; Exh. P (Hearing Examiner Official Job Description), ¶¶ 3-8. Hearing
Examiners, moreover, must be on site to access registration records for housing accommodations
and other records, review case-file documentation, listen to tape recordings of hearings, and meet
and confer with the Rent Adminsitrator, Supervisory Hearing Examiner, and other staff. See
8
Anderson Decl., ¶ 6. Rental Conversion Specialists, similarly, must be present regularly because
they must handle walk-in and scheduled appointments with landlords and tenants. See Mot.,
Exh. O (Rental Conversion Specialist Official Job Description), ¶¶ 2-8, 12, 14. This work,
Defendant asserts, is further complicated by “constantly evolving facts.” Mot. at 8; see RCS
Official Job Description, ¶ 9.
Plaintiff, for her part, claims that she was able to complete “a substantial amount” of her
duties as a Hearing Examiner from home “[i]n years prior to the present dispute.” Pl. Statement
of Disputed Material Facts (SDMF) at 1; McNair Depo. at 59. What Plaintiff ignores, however,
is that completing her work from home three times over six years is different in quality and
quantity from her request to do so 40 to 60 percent of the time for the foreseeable future. Indeed,
although she had ample opportunity to compile evidence to contradict the District’s argument
that such an accommodation would prevent her from carrying out the essential functions of her
position, she failed to do so. Instead, she relies solely on the bald assertions in her Complaint
and in her Opposition to the District’s Motion, which is not evidence. As deference is due to the
employer’s claims regarding essential functions, and as the District has offered substantial
evidence to support those claims, the Court concludes as a matter of law that McNair could not
perform her job with the flexible schedule she sought.
2. Workplace Accommodations
That, however, does not end the matter. Although the Court agrees with Defendant that
many of the proposed accommodations – namely, those that involved a “flexible” work schedule
– were unreasonable, the proper inquiry is “whether any reasonable accommodation would have
allowed [Plaintiff] to perform all the essential functions of [her] job without creating an undue
hardship for the agency.” See Woodruff, 482 F.3d at 527 (emphasis added) (citing Carr, 23 F.3d
9
at 529). Plaintiff here notes that she proposed six other potential accommodations that would
have allowed her to return to work without telecommuting – e.g., a lumbar-support chair and
assistance lifting and transporting files and cases. See McNair’s List of Proposed
Accommodations. Defendant, moreover, does not argue that McNair could not perform the
essential functions of her job even with these modifications. The Court thus cannot conclude
that she has failed to satisfy the third element of an ADA case in relation to these
accommodations. Instead, it must continue to the fourth question: whether the District denied
McNair access to such accommodations.
B. Reasonable Accommodations Denied
Once an employer is aware of its responsibility to provide a reasonable accommodation –
in this case, once the District was on notice that McNair had a covered disability that prevented
her from doing her job – it must “identify the precise limitations resulting from the disability and
potential reasonable accommodations,” which is best done through an “informal, interactive
process” that involves both the employer and the employee with a disability. 29 C.F.R. §
1630.2(o)(3). The interactive process begins when an employee requests an accommodation.
Once this process has begun, “both the employer and the employee have a duty to act in good
faith,” Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 333 (3d Cir. 2003), and the
absence of good faith, including unreasonable delays caused by an employer, can serve as
evidence of an ADA violation. See, e.g., Picinich v. United Parcel Serv., 321 F. Supp. 2d 485,
514 (N.D.N.Y. 2004).
“Because the interactive process is not an end in itself,” however, “it is not sufficient for
[the employee] to show that the [employer] failed to engage in an interactive process or that it
caused the interactive process to break down. Rather, [the employee] must show that the result of
10
the inadequate interactive process was the failure of the [employer] to fulfill its role in
‘determining what specific actions must be taken by an employer’ in order to provide the
qualified individual a reasonable accommodation.” Rehling v. City of Chicago, 207 F.3d 1009,
1015-16 (7th Cir. 2000) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th
Cir. 1996)). Thus, if a jury could conclude (1) that DCRA failed to engage in good faith in an
interactive process regarding McNair’s disability, and (2) that such failure prevented the District
from according her reasonable accommodations in a timely manner, summary judgment cannot
be granted.
Here, the interactive process commenced sometime before September 2006. Earlier in
that year, McNair began taking her accrued leave as a result of complications from her back
surgeries; by August, McNair’s supervisor had notified her that she had to return to work, and
she had submitted her list of proposed accommodations. At this point, the presumptions inherent
in the summary-judgment inquiry begin to work against the District. It is unquestioned that
Plaintiff submitted a list of proposed accommodations in July 2006. The parties agree,
furthermore, that McNair met with DCRA managers in September to discuss those
accommodations, that no further discussion took place, that Plaintiff did not begin working again
until October 2007, and that she did not receive any of the accommodations she requested until
at least that time. See McNair Depo. at 97-98. The reason for the breakdown in communications
and the ultimate delay, however, is the subject of some dispute.
Defendant argues that it engaged in an interactive process with Plaintiff and acted in good
faith to obtain the necessary accommodations, and that Plaintiff was the cause of the delay. See
Def. SUMF, ¶ 13. In support of this claim, the District cites a letter from the DCRA Director to
McNair stating that the Department was “willing to discuss accommodations that can be made to
11
[her] DCRA workspace.” See Mot., Exh. I (Letter from Patrick J. Canavan to Saundra McNair,
October 27, 2006). Plaintiff responds that DCRA managers did meet with her in September
2006 to discuss those accommodations, but that after she submitted a renewed written request for
accommodations, there was no further communication from the agency, and no accommodations
were provided until October 2007, when Plaintiff was transferred to another District agency. See
McNair Depo. at 66-68, 79-82.
As a result, reviewing the record in the light most favorable to Plaintiff, the Court cannot
agree that Defendant’s characterization of the interactive process is correct as a matter of law.
On the contrary, although Plaintiff’s evidence is hardly overwhelming, a jury could conclude that
DCRA was responsible for the breakdown in communication and that this prevented the District
from affording reasonable accommodations to Plaintiff in a timely manner. Cf. Scarborough v.
Natsios, 190 F. Supp. 2d 5, 26-27 (D.D.C. 2002) (granting summary judgment because employer
“explained why he was denying the request,” “invited plaintiff to submit any other appropriate
documents that . . . may be helpful,” and offered to reconsider request, and Plaintiff did not
respond to that letter).
IV. Conclusion
While the Court concludes that the District need not have permitted Plaintiff to work
from home, it cannot hold at this stage that all reasonable accommodations were appropriately
denied. The Court will, accordingly, grant Defendant’s Motion for Summary Judgment in part
and deny it in part. A contemporaneous Order to that effect will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 23, 2014
12
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
T.A., )
)
Appellant, )
)
v. )
) Case Nos. 2D17-2258
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed February 23, 2018.
Appeal from the Circuit Court for
Hillsborough County; Barbara Twine-
Thomas, Judge.
Howard L. Dimmig, II, Public Defender, and
Richard P. Albertine, Jr., Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, for Appellee.
SLEET, Judge.
T.A. challenges the trial court's juvenile disposition order in which the court
found him guilty of committing the delinquent act of burglary of an occupied dwelling,
withheld adjudication, and placed him on probation. However, neither the disposition
order nor the court's oral pronouncement specifies the length of the probationary term
imposed.
Because adjudication was withheld, the trial court could impose probation
for an indefinite period not to exceed T.A.'s nineteenth birthday. See R.F. v. State, 42
So. 3d 333, 335 (Fla. 2d DCA 2010). But "[i]t is not clear from the record whether the
trial court intended to place [T.A.] on an indefinite period of probation or whether it was
an oversight that the length of probation was not specified." See K.A. v. State, 152 So.
3d 117, 118 (Fla. 2d DCA 2014). We therefore reverse the disposition order to the
extent that it failed to set the length of T.A.'s probation and remand for a determination
of the duration of probation. See id. We affirm the disposition order in all other
respects.
Affirmed in part, reversed in part, and remanded.
CASANUEVA and LUCAS, JJ., Concur.
-2-
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERTO SALDIVA-SANDOVAL, a/k/a Jose Edilberto
Hernandez, a/k/a Jose Edilberto Cabre
Hernandez, a/k/a Herman Lainez, a/k/a Jose
Cabrera, a/ka Jose Cabrera Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cr-00306-WLO)
Submitted: October 31, 2007 Decided: November 21, 2007
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Angela H. Miller, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following two mistrials, Roberto Saldiva-Sandoval was
convicted at a third trial of illegal reentry by a previously
deported alien, 18 U.S.C. § 1326(a) (2000), and was sentenced to
fifty-four months in prison. He now appeals his conviction. We
affirm.
I
At trial, Immigration and Customs Enforcement Agent Lewis
Winer testified that an individual known as Jose Edilberto
Hernandez, who operated a small store in Winston-Salem, North
Carolina, applied for a beer license. In connection with that
application, state authorities conducted a routine investigation,
including a fingerprint analysis. As a result of the
investigation, state authorities alerted federal officials, and, on
August 5, 2005, Winer arrested the defendant for illegally
reentering the United States. Winer fingerprinted the defendant,
who insisted his name was Hernandez. A fingerprint expert
testified that the defendant’s prints matched those of an alien who
was deported in 1992 and again in 1993 and who was known then as
Roberto Saldiva-Sandoval or Jose Cabrera. The alien had not
applied for or received permission from the Attorney General or the
Secretary of the Department of Homeland Security to reenter the
United States.
- 2 -
II
The defendant raises two issues on appeal. First, he contends
that the district court erred when it denied his Fed. R. Crim. P.
29 motion for judgment of acquittal at the first mistrial. There
is, however, no review of the sufficiency of evidence presented at
a prior trial that resulted in a mistrial. See Richardson v.
United States, 468 U.S. 317, 325-26 (1984); United States v.
Julien, 318 F.3d 316, 321 (1st Cir. 2003); United States v.
Coleman, 862 F.2d 455, 460 (3rd Cir. 1989).
The defendant also claims that the district court erred when
it refused to allow into evidence the fact that he possessed a
green card. We review evidentiary rulings for abuse of discretion.
See United States v. Stitt, 250 F.3d 878, 888 (4th Cir. 2001).
Where an objection was raised below, evidentiary rulings are
further subject to harmless error analysis. See United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997). Here, there was no
abuse of discretion. We agree with the United States that defense
counsel opened the door to questioning about the contents of two
official files on the defendant. Such questioning was designed to
dispel any confusion that defense counsel’s questioning might have
left in the jurors’ minds when he inquired about the contents of
only one of the files. In any event, we believe that any error in
excluding the green card was harmless, given the essentially
- 3 -
undisputed testimony that the defendant’s fingerprints matched
those of an alien who was deported in 1992 and again in 1993.
III
We therefore affirm the conviction. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
- 4 -
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51 F.Supp. 478 (1943)
UNITED STATES
v.
9.94 ACRES OF LAND IN CITY OF CHARLESTON et al.
Civil Action No. 902.
District Court, E. D. South Carolina, Charleston Division.
August 16, 1943.
*479 *480 Claud N. Sapp, U. S. Atty., of Columbia, and Ben Scott Whaley, Asst. U. S. Atty., of Charleston, for petitioner.
A. T. Smythe, George E. Grimball, and Buist & Buist, all of Charleston, for defendants.
WARING, District Judge.
In the above entitled cause the United States instituted proceedings in this court on November 18, 1942, by filing in the court a letter from the Commissioner of the Federal Public Housing Authority addressed to the Attorney General requesting condemnation of the tract described in the pleadings. At the same time the United States Attorney for this district filed his Petition for Condemnation, Lis Pendens, Declaration of Taking; and I signed and filed an Order of Judgment on this Declaration. At the same time there was deposited in the registry of the court the sum of $1,155.53, which was stated to be the estimated compensation for the interest taken in the lands. The interest taken as set forth in the Petition is as follows: "That the estate taken for said public use is the exclusive use of the said land hereinabove described for a period of one year with the right to renew from year to year for the duration of the war emergency as determined by the President, and three years thereafter, with the right of the Government to remove all improvements at the termination of such use."
Answers have been filed by most of the defendants and various motions have been made on their behalf. I have considered all of these motions and questions raised, at one hearing, and treated the same as a pretrial conference for the purpose of attempting to ascertain the positions taken by the government and by the various owners of the properties. While many detailed questions were submitted and argued, I think it unnecessary to consider them separately or seriatim, but a general survey of the situation and an indication of my holdings on the main points will suffice to cover the case. The views hereinafter set forth are in answer to the various motions and to the request that I outline the general elements of the law, which I expect to adopt and follow and use when the cause comes on for a trial and the matter is submitted to a jury.
A preliminary matter passed upon was the motion to segregate the parcels owned by the respective defendants. At the hearing before me all parties acquiesced in the desirability of this action and the United States Attorney stated that he expected to file amended pleadings setting forth the descriptions of the various properties owned by the respective defendants. I stated that in my opinion this was proper and an appropriate order directing this has been filed.
1. The question has been raised as to whether the determination of the measure of just compensation under the Fifth Amendment of the Constitution of the United States is a judicial, or legislative, or executive function. I think there is no doubt whatsoever that this is entirely a judicial function. The Congress, and the *481 executive when empowered by the Congress, may determine to exercise the power of eminent domain and may determine in what manner and how and when to exercise it, but the determination of just compensation is a constitutional right and the party from whom the property is taken by condemnation proceedings is entitled to his day in court. See United States v. New River Collieries Co., 262 U.S. 341, 43 S.Ct. 565, 67 L.Ed. 1014; Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664; Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 626, 37 L.Ed. 463. In the last named case the court says: "By this legislation congress seems to have assumed the right to determine what shall be the measure of compensation. But this is a judicial, and not a legislative, question. The legislature may determine what private property is needed for public purposes; that is a question of a political and legislative character. But when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry." (Emphasis added.)
2. I am of the opinion and so hold that the fact that the government has made an estimate of compensation and made a deposit in the court has nothing to do with the final decision as to just compensation. This is not a usurpation of judicial function. It is merely a statement of findings by the executive branch, which has taken the property under authority granted by the legislative branch, and it is to be treated on a parity with other statements in the pleadings. This is in no way binding upon the defendants or upon the court, which may proceed to exercise its full and free power to adjudicate what is the compensation to be awarded. Numerous cases could be cited to sustain this contention, but the United States Supreme Court has so recently reviewed the general matter of eminent domain that I feel it necessary to cite only the case of United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. ___.
3. It is contended on behalf of certain of the defendants that the court must determine the exact nature of the estate which the government can take and that the government is not empowered to decide whether it shall take a fee simple title or something less, but that this is a duty imposed upon the court. I do not agree to this. Under the power of eminent domain the United States may exercise such power to take the whole or any part of, or any interest in, the lands in question and this right is limited only by the Acts of Congress delegating authority to the Executive. By reference to the Acts of Congress and particularly that statute known as the Second War Powers Act of 1942, Title 50 U. S.C.A.Appendix, § 632 and Executive Orders thereunder, the governmental officers of the United States are given a free hand to take property because of the war in which the country is engaged, and because of the exigencies of the armed forces and of various manufacturing, housing, and other necessities, all closely interwoven and tied into the war effort. I shall, and do, hold, that the United States is fully warranted in taking the property here in question and that the officer who caused the same to be taken was clothed with the right and power to designate the property so taken and to determine what interest, terms or part in the same is to be acquired by the United States. See United States v. Meyer, 7 Cir., 113 F.2d 387; United States v. Forbes, D.C., 259 F. 585, 590.
The foregoing, however, is all subject to the final determination by a court of competent jurisdiction as to what is the value of the interest taken. In other words, the Legislature and the executive officers determine what they want and are empowered to take it, but the court determines what is the value of what they have taken and what is the just compensation to be paid to the owners.
4. Questions are raised as to whether the duration of taking is limited to the war with Germany, the war with Italy or the war with Japan, or whether it is limited to the present wars or future wars, and what is meant by the present emergency and the duration of same; and who is empowered to determine same and how this is to be done. I consider it wholly unnecessary for me to attempt to answer any of these questions. This should not be, and is not, a duty of the court. In my opinion the executive having been once clothed with the power and I have held that the *482 executive department has the power to take is free to take what interest it desires, and has full freedom and liberty to determine what wars are meant, what emergency is meant and the duration of the taking. If the government had chosen to take and pay for a fee simple title to the property taken the fixing of compensation would have been comparatively simple and would have been governed by the ordinary rules laid down by the courts for the fixing of compensation. These have been recently summarized in the case of United States v. Miller supra, and need not be elaborated here. But if the government chooses, and it has so chosen in this case, to take some title other than a fee simple title, it certainly is at liberty to do so. It may urge before the court that such a title takes a smaller valuation and that the compensation should be less than if a fee simple title be taken. That is a question for a jury to determine. I feel that I have no right to control or curb the government in the nature of the estate which it wishes to take and which it has taken, nor is it for me to determine for how long a time the property will be held, or what will be done with it. The plaintiff by its pleading has set forth the terms under which it wishes to take this property. It has a right to name these. On the other hand, a jury under proper instructions has a right to consider what is just compensation, keeping in mind throughout the trial of course, that the government has a full, free, absolute and complete right under the taking which it has chosen, to hold and make use of the property for such duration as it wishes to specify, and with that in mind the jury will fix the compensation. In addition, it is to be considered that there is no limitation as to how, when or in what plight the property is to be returned to the owners. The fact that the property may at some date and in some condition be so returned to the owners is a fact that may be considered by a jury, and which I shall certainly submit to a jury and I shall instruct the jury that if it considers this of any value it must determine such value and deduct it from what would have been the full fee simple value of the property taken.
5. In this case the government has specified that it has taken the exclusive use of the land for a period of one year with the right to renew from year to year for the duration of the war emergency as determined by the President and for three years thereafter. The government reserves the right to remove all improvements. As above stated, I have held and shall hold that the government has the right to take the property under these conditions. It has the right to the exclusive use and there appears no limitation of any kind or character as to what this use is to be. There is nothing in the declaration or in any of the pleadings by which the government may be bound to remove any structures should they be found to be detrimental. I can find nothing in the pleadings that would prevent the government from erecting any kind of structures it chooses upon the property; it has the right to excavate or remove soil, or to make any kind of use that it chooses. In the argument before me it has been said that the government is to be assumed to be fair-minded and that it will of course treat the owners fairly. We are not dealing here, however, with speculation of what may happen. The government is operated by officers who necessarily change from time to time. The good intentions of the present officers have no binding effect upon the actions of future officers. If the owners are to be bound by the fair statements of those representing the government presently engaged in this case there would be no necessity for this litigation. We all hope to be well treated and to receive just compensation, but any one whose property is taken by the strong arm of the United States Government is entitled to rely and stand upon his constitutional rights to come into a court of competent jurisdiction and ask that matters in dispute be adjudicated and that a jury be empaneled and sworn to pass upon what compensation he shall receive. I know of no right by which the officers of the government may say one must rely upon their present assurances that they will take care of the property and improve it and return it in good condition. I shall, and do, hold, that the owners have a right to a court adjudication as to their rights and they are not in any way bound to rely upon promises of any officials of the United States in regard to the condition of the property, the upkeep of the property, the payment of taxes, the payment of street improvement assessments or any other matters in connection with the issues herein.
6. In this case the government argues that it is taking merely a leasehold for a period of one year subject to renewal from year to year and that the measure of compensation is what would be a fair rental. I have been cited to certain cases *483 from the Court of Claims. I do not find these at all applicable since the rules of law applicable to claims against the government are not at all the same as those to be applied in condemnation cases. See United States v. North American Transportation & Trading Co., 253 U.S. 330, 40 S.Ct. 518, 64 L.Ed. 935; Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299-305, 43 S.Ct. 354, 67 L. Ed. 664. The government has likewise argued that in adopting this method of valuation the court should enter a judgment, which would in effect give the government a leasehold on the terms set out in the Declaration and fix an annual rental with appropriate provision for notice to be given the land owners within a reasonable time of the government's intention to extend its holding or to surrender the property. And it is also suggested that such a judgment should include some arrangements for the government to take care of the taxes.
This suggestion would seem to be in complete conflict with the contention heretofore argued on behalf of the government (and with which contention I agree), that the executive officers of the government have a right to determine, and have determined, in this case, to take the property for such time and for such use as they wish and that it is not the province of or within the power of the court to curb that. I can not see where this court would have any right to lay down the terms of the use of the property, the duration of same, the notice to be given, the upkeep, compensation for depreciation or injury from time to time, or condition of the property at the time when it is returned to the owners. In my opinion the government can exercise its power of eminent domain and take it on such terms and in such manner as it wishes and the court can not curb that. But the court can, and it is its duty, to see that the owner receives just compensation and so far as is possible made whole for what has been taken away from him. A case recently decided in the District Court of Delaware (United States v. 16.747 acres of land, D. C., 50 F.Supp. 389, decided June 15, 1943), has been cited by the government where it was held that the interest acquired by the government was a year to year leasehold. In that case the court was asked to vacate the order granting possession and the judgment of taking of the property, the purpose of the motion being to contest the legal sufficiency of the petition for condemnation and the proceedings taken thereunder. Apparently the real reason of this motion was that the interest sought to be taken in the property and the conditions attending same were so uncertain and vague that there was no way of measuring what would be just compensation. The court held that a fair annual rental might be ascertained and that if any damage occurred to the property it would be highly speculative to attempt to ascertain the value of same and that the defendants might have their remedy for such damages, if such occurred, at the end of the period of occupancy. The court apparently bases its decision in great part upon a number of cases from the Court of Claims, which it cites. In that case the owners do not seem to have raised the same issues as here, or ask that the entire compensation be fixed at the time of trial. It does not appear whether any such issues were considered. Whether or not they were, I do not find it possible to agree that a condemnation case is to be brought, tried piece meal, and kept open for an indefinite term to meet conditions which may hereafter arise. If that theory be adopted this case might be kept open and run from year to year. No man knows how long the present world conflicts will run. No man knows what other conflicts will be entered into before the end of these. Certainly already great emergencies have arisen and emergencies for housing, manufacturing and other war and allied interests may be with us for many years, perhaps generations. What right has this court to fix an annual rental at this time, and adjudge whether the owners be justly compensated, over compensated, or under compensated, twenty five, fifty or a hundred years hence? And during this period would the parties have a right to come in and apply to the court for a modification of the judgment or another trial to fix what would then be a fair rental? And at the end of this period would this court have any power to determine the amount of injury, damages or depreciation that had been caused by the use of the property? If the property had been misused and damaged to such an extent that it has little, if any, remaining value, might not that be held to be a tortious act by the government and not compensatory in these proceedings? I can not believe that the constitutional guarantee that no man's property should be taken without just compensation has any such meaning and that the owners of the property may be forced into receiving annual stipends. Just compensation in my opinion means exactly *484 what it says, and it means that the owner himself is entitled to receive his compensation; not that his estate or his children or his grandchildren are to receive installment payments and perhaps inherit a law suit in the far future.
7. It has been pointed out that in the pleadings there are recitals that indicate that the property is taken for housing purposes and that it is suggested that, therefore, irreparable damages to the property such as excavations or placing of such structures as could hardly be removed without enormous expense, or some other use of the land which may utterly destroy it for normal general uses and purposes will not occur. It is true that such a showing is made as to its present use. However, in answer to that, it is submitted that the fact that it is to be used for housing does not mean that it will not be injured, and as a matter of fact, it has been stated in argument that the government has already constructed on the property a large number of houses which are said to be laid out for specific purposes applicable to war time housing, built upon concrete foundations and the buildings have a semi-permanent character. Discussion was had as to the effect of these buildings on the property and the owners take the position that while the buildings may be useful for emergency war housing, they could not possibly be used or usable in the development of a residential subdivision for which this property was laid out and intended. Nor would the placing of concrete foundations and of the water, sewer and other pipe lines and utility connections be of use or benefit unless the same design and layout of the property is to be adhered to. There is no way of knowing whether at the end of the emergency and the surrender of the property (if such time ever comes), that the government will remove the houses, including the foundations, or take away only the superstructures or perhaps salvage such portions as are of value, such as plumbing, piping, metal work, or such other materials as it wants. All of this is veriest guess work and speculation. It is assumed that when the case comes to be tried before a jury, the jury will view the site. Of course it will be told to consider the land as it was at the date of taking and that the buildings placed on the land are not to be taken into consideration as affecting the value. However, it must be assumed that the jurors are men of common sense and that they will have the actual knowledge of what use has been made of the land and whether or not it has been improved or ruined as a proposed residential development.
8. The point is made on behalf of the defendants that the effect of the proceedings in this cause is an attempt to force the owners into a rental contract, and, therefore, they suggest that the court should either not entertain the cause at all because the government is without power to force an owner into such a position, or that the court construe the Declaration and Petition to be a taking in fee simple. I do not think that either of these positions is mandatory. I know of no power in the government to force one to enter into a lease or contract relating to his property, but on the other hand, I think that the government has ample power to force the owner to surrender his property and that it may name what interest it desires to take and all the terms and conditions surrounding it. But when the government has done that it has taken the property and the owner has his remedy under his constitutional guarantee to receive just compensation to be fixed by a court and jury. It may be that the jury will consider that the taking is equivalent to a fee simple taking or it may consider it very much less. But all these are questions of fact for the determination of the jury and should be submitted to it in the light of and with a view to all the surrounding circumstances affecting the particular property taken and sought to be valued in the instant case. Each case will of course stand upon its own footing as to the items and influences entering into finding a true value considering the location of the property, its condition, its surroundings, its usefulness and useability, the time during which it is to be occupied, how it is to be used, and what is to happen to it during the occupancy, when it is to be returned, and what is to be its condition when so returned.
9. Referring to the matter of taxes, under the law of South Carolina the owner of the fee is responsible for same. The government did not choose to take a complete fee simple title and, therefore, the fee remains as at present in the names of the defendant owners. The taxes will be assessed against them and will constitute a lien on their interests in the property. As to whether or not they will pay these taxes is a question for them to decide. I am of *485 the opinion that I have no power to order the government to pay the taxes and whether or not it should decide to do so is a matter of favor, not of right. However, all taxes which are past due and already constitute a lien on these properties should be taken care of from the awards which may be made to the owners.
As to assessments which have been made for street, drainage or other improvements, these are direct liens upon the properties since the theory of such assessments is that they are justified because of the benefit accruing to the property by reason of the improvements. This is generally true throughout the United States and includes South Carolina. See Beatty v. Wittekamp, 171 S.C. 326, 172 S.E. 122; Wesley M. E. Church v. City of Columbia, 105 S. C. 303, 89 S.E. 641; Jackson v. Breeland, 103 S.C. 184, 88 S.E. 128, and also Illinois Central Railroad Co. v. Decatur, 147 U.S. 190, 13 S.Ct. 293, 37 L.Ed. 132. Therefore, any funds now or hereafter awarded to the owners as just compensation shall be subject to deduction for payment of all outstanding and unpaid improvement assessments against these properties. These questions, however, will not be matters to be passed upon by the jury, but the jury will be required to fix just compensation, having in mind that the properties have been improved by the above referred to improvements. After a verdict has been rendered then by appropriate order the court will find what amount of assessments for improvements and what amount of taxes are due and will direct them paid from the amount of the judgment against the United States.
Summary.
The matter hereinbefore considered is in great part one of novel impression and no really pertinent cases have been cited to me, nor has my independent search disclosed such. We are, therefore, traveling an unchartered course and the matter must be decided by what I conceive to be the sound dictates of reason and fairness. After all, the intent of the Fifth Amendment to the Constitution is that while the government has power, with practically no limitation, to take property, nevertheless, the owner is to be treated fairly and his rights maintained. It is the duty of a court to attempt as nearly as possible to put the owner in as good a place as he was before the taking. In my opinion he is entitled to receive a definite fixed payment representing the value of his property at the time of the taking. If this taking be of a fee simple title the rules under which to ascertain the compensation are well fixed and known. See particularly United States v. Miller, supra. On the other hand, if the estate is anything less, then it is a question of fact for the jury to give due consideration to what, if anything, is left to the land owner, and when it has found a value of that it should be deducted from the full value of a fee simple title. This to me more nearly approaches a definition of just compensation and fair dealing with an owner than any other suggestions that have been made.
It may be suggested that the government should not be put to the jeopardy and risk of a finding which might be in part speculative because of the uncertainty of all the conditions surrounding the taking of the property. The same argument applies with equal force to the owner. And since it is the government which has determined to take the property and has determined the estate in and manner of taking, if either party is to run the risk of a loss because of changes in the future, it would seem to be just that this be assumed by the party who is in control of and has determined the status of the case.
Accordingly, I shall direct that the cause be placed upon the calendar for trial before a jury, which will be instructed to consider the matter in the light of the foregoing observations; and the plaintiff and defendants may introduce such testimony as they desire within the scope above outlined. The jury will be given an opportunity to view the property and after hearing all pertinent testimony the matter will be submitted to it with instructions along the lines as hereinabove set forth.
There is one other remaining question that has not been passed upon. The defendants point out that the county and municipal authorities are threatening to enforce liens for taxes and assessments and raise the question as to whether the deposits made in this court should be applied to the liquidation of same. Since I hold that the taxes and assessments are liens against the respective parcels, I am of the opinion that such deposits may be applied for such purposes and if it appears that the taxing authorities are preparing to enforce these liens, the parties in this cause may present *486 appropriate orders for the purpose of applying such amounts as are on deposit towards the satisfaction of same.
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707 F.Supp.2d 379 (2010)
UNITED STATES of America,
v.
Richard KNAUER, Defendant.
No. 09-CR-586 (ILG).
United States District Court, E.D. New York.
April 20, 2010.
*381 Robert Lloyd Capers, United States Attorneys Office, Brooklyn, NY, for United States of America.
David J. Klem, New York, NY, Deirdre Dionysia Von Dornum, Brooklyn, NY, for Defendant.
MEMORANDUM AND ORDER
GLASSER, Senior District Judge:
Defendant appeals a criminal conviction imposed after a bench trial before Magistrate Judge Marilyn D. Go. For the reasons stated below, defendant's conviction is vacated and a judgment of acquittal is entered.
FACTS[1]
Defendant Richard Knauer ("Knauer") is a fisherman with a valid New York State commercial fishing permit which allows the commercial harvesting of horseshoe crabs. On May 25, 2007, Knauer was engaged in the harvesting of horseshoe crabs within the waters of the Jamaica Bay Unit of the Gateway National Recreation Area ("Gateway"). After receiving a phone call reporting Knauer's activities, two United States Park Police Officers approached Knauer's fishing boat in their own vessel. After witnessing Knauer catching horseshoe crabs, and observing some 50 to 80 crabs already in his boat, they informed him that his activities were illegal. They then issued Knauer two misdemeanor summonses: commercial fishing in violation *382 of 36 C.F.R. § 2.3(d)(4) and harming or harassing wildlife in violation of 36 C.F.R. § 2.1(a)(1)(i).
PROCEDURAL HISTORY
On April 23, 2008, a bench trial was held before Magistrate Judge Go. At his trial, Knauer did not dispute the government's description of his actions on May 25, 2007, but rather challenged the legal authority under which he had been charged. First, Knauer argued that, under federal law, horseshoe crabs are not technically fish, and thus he could not be guilty of commercial fishing. Second, he argued that there was no regulation which actually prohibited the taking of horseshoe crabs in Jamaica Bay. At the conclusion of trial, Knauer made a motion for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing that, on the basis of the evidence presented at trial, he could not be found guilty of commercial fishing. Magistrate Judge Go reserved judgment on this motion.
On May 7, 2008, Magistrate Judge Go requested from the government a copy of the version of the Jamaica Bay Unit Compendium, a collection of regulations issued by the Jamaica Bay Unit of the Gateway National Park, in effect on May 29, 2007. Knauer promptly objected to this request on the grounds that it was an impermissible reopening of the trial and that the court could not take judicial notice of the Compendium. The government subsequently provided Magistrate Judge Go with a copy of the Compendium dated May 25, 2007. On July 14, 2009, Magistrate Judge Go issued a decision. United States v. Knauer, 635 F.Supp.2d 203 (E.D.N.Y. 2009). She acquitted Knauer of the commercial fishing charge, finding that horseshoe crabs are not fish for purposes of federal law,[2] but found Knauer guilty of harming or harassing wildlife, relying primarily on a regulation found in the Compendium banning the hunting of horseshoe crabs, and imposed a $275 fine. On August 19, 2009, Knauer appealed this conviction, and, on April 9, 2010, oral argument was heard.
DISCUSSION
Knauer raises several arguments in support of his appeal. He first argues that the Compendium on which the magistrate judge relied was not properly admitted into evidence, was not subject to judicial notice, and thus could not properly provide the basis for his conviction. He then argues that, assuming the Compendium was properly considered, the regulation which banned the hunting of horseshoe crabs was not lawfully promulgated and was therefore invalid. Finally, he argues that, in the absence of the Compendium, there is no statutory or regulatory authority which would ban the harvesting of horseshoe crabs in Jamaica Bay.
The government argues that the Compendium was properly before the court and that its regulations were valid and thus supported Knauer's conviction. The government further argues, however, that even if the Compendium cannot be considered, *383 federal law independently prohibits the activity Knauer was engaged in. The government has not challenged Knauer's acquittal on the commercial fishing charge.
1. Standard of Review
This Court has jurisdiction over Knauer's appeal under Rule 58(g)(2)(B) of the Federal Rules of Criminal Procedure. In an appeal of a criminal conviction by a magistrate judge, "the scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed.R.Crim.P. 58(g)(2)(D). The court of appeals "review[s] de novo the district court's legal conclusions and accept[s] its factual determinations, unless clearly erroneous, viewing those facts in the light most favorable to the government." United States v. Gandia, 424 F.3d 255, 261 (2d Cir.2005).
2. Federal Statutory and Regulatory Provisions
a. Prohibition on Harming or Harassing Wildlife
The government argued at trial and continues to argue in its brief that, even without considering the Jamaica Bay Unit Compendium, Knauer's conduct violated 36 C.F.R. § 2.1(a)(1)(i). According to the government, the regulations implemented by the Secretary of the Interior ("the Secretary") considered together with the federal statute that established Gateway are sufficient to criminalize the taking of horseshoe crabs within Gateway.
Because there is considerable dispute between the parties regarding the legitimacy and admissibility of the regulations contained in the Compendium,[3] and because the government's argument at trial did not rely on the Compendium,[4] the Court first considers whether Knauer's conviction may be upheld even absent the contested Compendium regulation.
Knauer was charged with a violation of 36 C.F.R. § 2.1(a)(1)(i), which provides, in relevant part:
(a) Except as otherwise provided in this chapter, the following is prohibited: (1) Possessing, destroying, injuring, defacing, removing, digging, or disturbing from its natural state: (i) Living or dead wildlife or fish, or the parts of products thereof, such as antlers or nests.
The Secretary, under his authority to administer the national parks, has promulgated a number of regulations which apply to the parks generally, including definitions of various terms used throughout the regulations. The terms "fish," "wildlife," "fishing," and "hunting" are defined as follows:
Fish means any member of the subclasses Agnatha, Chondrichthyes, or Osteichthyes, or any mollusk or crustacean found in salt water.
Wildlife means any member of the animal kingdom and includes a part, product, *384 egg or offspring thereof, or the dead body or part thereof, except fish.
Fishing means taking or attempting to take fish.
Hunting means taking or attempting to take wildlife, except trapping.
36 C.F.R. § 1.4(a) (in relevant part, reordered for clarity). Thus, the animal kingdom is divided into two mutually exclusive classes, fish and wildlife, and the taking of fish and the taking of wildlife are classified as fishing and hunting, respectively. As Magistrate Judge Go found, and neither party disputes, horseshoe crabs belong to the subphylum Chelicerata, and not to any of the categories listed in the definition of fish in 36 C.F.R. § 1.4(a). As such, they are properly classified as wildlife rather than fish, and the taking of horseshoe crabs would be classified as hunting, not fishing.[5]
The provision Knauer was charged of violating, 36 C.F.R. § 2.1(a)(1)(i), protects both wildlife and fish, and thus would prohibit both hunting and fishing. This prohibition, however, applies "[e]xcept as otherwise provided in this chapter." 36 C.F.R. § 2.1(a)(1)(i). It is necessary then, to consider whether Knauer's activities were otherwise provided for. Hunting is specifically addressed under 36 C.F.R. § 2.2(b), which provides:
(1) Hunting shall be allowed in park areas where such activity is specifically mandated by Federal statutory law.
(2) Hunting may be allowed in park areas where such activity is specifically authorized as a discretionary activity under Federal statutory law if the superintendent determines that such activity is consistent with public safety and enjoyment, and sound resource management principles. Such hunting shall be allowed pursuant to special regulations.
36 C.F.R. § 2.2(b)(1)-(2) (emphasis added).
This provision distinguishes between park areas where hunting is "specifically mandated by Federal statutory law," id. at (1), and those where it is "specifically authorized as a discretionary activity under Federal statutory law," id. at (2). In the former, hunting "shall be allowed" as mandated while in the latter, it "may be allowed" if authorized by the park superintendent. Id. at (1)-(2). Thus, the first step in the Court's analysis is to determine the statutory status of hunting in the Jamaica Bay Unit of Gateway.
b. Hunting under the Enabling Act
The Gateway National Recreation Area was created by federal statute, codified at 16 U.S.C. § 460cc et seq. ("Gateway Enabling Act"). This statute defines Gateway's boundaries and divides it into several geographic units, including the Jamaica Bay Unit. 16 U.S.C. § 460cc. In addition, it provides for Gateway's administration by the Secretary of the Interior. 16 U.S.C. § 460cc-2. The Secretary is instructed to "utilize such statutory authority available to him for the conservation and management of wildlife and natural resources as he deems appropriate to carry out the purposes of this subchapter." Id. at (a). The Secretary is further instructed to "administer and protect the islands and waters within the Jamaica Bay Unit with the primary aim of conserving the natural resources, fish, and wildlife located therein and shall permit no development or use of *385 this area which is incompatible with this purpose." Id.
The statute also specifically addresses the status of hunting within Gateway in the following terms:
The Secretary shall permit hunting, fishing, shellfishing, trapping, and the taking of specimens on the lands and waters under his jurisdiction within the Gateway National Recreation Area in accordance with the applicable laws of the United States and the laws of the States of New York and New Jersey and political subdivisions thereof, except that the Secretary may designate zones where and establish periods when these activities may not be permitted for reasons of public safety, administration, fish or wildlife management, or public use and enjoyment.
Id. at (f) (emphasis added).
The relevant provision of the Gateway Enabling Act begins with the mandatory language "[t]he Secretary shall permit hunting." Id. This would initially suggest that hunting in Gateway is regulated by 36 C.F.R. § 2.2(b)(1), supra, and thus "shall be allowed." The government argues that the additional language in the Gateway Enabling Act providing that "the Secretary may designate zones where and establish periods when these activities may not be permitted" means that hunting is merely "authorized as a discretionary activity," and thus Gateway is governed by 36 C.F.R. § 2.2(b)(2), and hunting is allowed only if authorized by the park superintendent. There are several problems with this interpretation.
First, the language in the Gateway Enabling Act authorizing the Secretary to restrict hunting is entirely consistent with hunting in Gateway being "specifically mandated by Federal statutory law." 36 C.F.R. § 2.2(b)(1). The very next paragraph under 36 C.F.R. § 2.2 imposes procedural requirements on park superintendents when "restricting hunting and trapping or closing park areas to the taking of wildlife where such activities are mandated or authorized by Federal statutory law." 36 C.F.R. § 2.2(c) (emphasis added).[6] If the existence of the Secretary's authority to restrict hunting in a particular park meant that hunting could not be "mandated by federal law," then the "mandated" language of 36 C.F.R. § 2.2(c) would be entirely superfluous.
Second, this interpretation fails to give any meaning to Congress's decision to use the word "shall" in some enabling acts and "may" in others. Congress has authorized hunting in the enabling acts of numerous national parks, sometimes by directing that the Secretary of the Interior "shall permit hunting"[7] and sometimes indicating *386 that the Secretary "may permit hunting."[8] The important significance of that linguistic difference is reflected in the words "shall" and "mandated" in § 2.2(b)(1) and "may" and "authorized as discretionary" in § 2.2(b)(2). When Congress uses different words in similar statutes, the difference is presumed to be meaningful. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ("We normally presume that, where words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion or exclusion." (internal quotations omitted)). This is particularly true when Congress chooses between mandatory and permissive language. See Lopez v. Davis, 531 U.S. 230, 241, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). Other courts have given weight to this distinction in the context of 36 C.F.R. § 2.2(b). See United States v. Lofton, 233 F.3d 313, 316 (4th Cir.2000).
The government assigns great weight to the exception in the Gateway Enabling Act which allows the Secretary to restrict hunting. The Court has reviewed the statutes authorizing hunting in dozens of federal parks, and those statutes which direct that the Secretary of the Interior "shall permit" hunting contain, without exception,[9] language similar to that in the Gateway Enabling Act authorizing the Secretary to impose restrictions. Interpreting the regulation in the manner the government advocates would make 36 C.F.R. § 2.2(b)(1) a nullity, as no parks would exist that specifically "mandate" hunting. Courts should avoid interpreting statutes or regulations in a manner that would neuter their provisions. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) ("[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." (internal quotations omitted)).
Third, the reading of 36 C.F.R. § 2.2(b) advocated by the government is *387 contrary to the Gateway Enabling Act. The Gateway Enabling Act and numerous other similar enabling acts are explicit in providing that hunting "shall [be] permit[ted]" subject to restrictions that the Secretary "may" impose. The application of 36 C.F.R. § 2.2(b)(2) to Gateway would prohibit hunting by default, subject only to exceptions that the Superintendent "may" allowprecisely the opposite of what was provided in the Enabling Act. Administrative regulations should not be interpreted in a way that conflicts with the text of the statutes those regulations implementat least not where another reasonable interpretation is available.
Finally, the interpretation endorsed by Knauer allows the regulatory and statutory schemes to be read together harmoniously. A review of the enabling acts of parks administered by the Secretary of the Interior reveals a number of parks in which hunting has been prohibited by statute,[10] others in which the statute directs that the Secretary "shall permit" hunting subject to exceptions,[11] and others in which the statute directs that the Secretary "may permit" hunting.[12] The regulations codified in 36 C.F.R. §§ 2.1 and 2.2 make sense of this division by first enacting a default rule prohibiting hunting, 36 C.F.R. § 2.1(a)(1)(i), and then recognizing exceptions for those areas where hunting is mandated or authorized as a discretionary activity by statute, 36 C.F.R. § 2.2(b). This is further confirmed by the National Park Service's commentary explaining 36 C.F.R. § 2.2(b) when it was first proposed:
In cases where the legislation for a park area does not authorize hunting or trapping, the taking of wildlife is prohibited. If the legislation for a park area authorizes hunting or trapping on a discretionary basis, special regulations for the park area will be required in order to implement a hunting or trapping program. The process of developing special regulations will require the preparation of an environmental assessment and an opportunity for public comment. In those park areas where the legislation directs that hunting or trapping be permitted, the Service will implement the types of restrictions necessary to ensure resource protection and public safety.
47 Fed. Reg. 11598, 11601 (Mar. 17, 1982). The commentary thus describes § 2.2(b) as distinguishing between legislation that "authorizes hunting or trapping on a discretionary basis" and legislation that "directs that hunting or trapping be permitted." Since the Gateway Enabling Act explicitly states that "the Secretary shall permit hunting," Gateway is governed by § 2.2(b)(1).[13] 16 U.S.C. § 460cc-2(f).
*388 The Gateway Enabling Act authorizes hunting, and thus §§ 2.1-2.2 do not, by themselves, prohibit Knauer's conduct. This authorization is limited, however, to such hunting as is "in accordance with the applicable laws of the United States and the laws of the States of New York and New Jersey" and carves out an exception for "zones where and ... periods when these activities may not be permitted." 16 U.S.C. § 460cc-2(f). Thus, Knauer's conduct was legal only if it was in accordance with state law, it was otherwise in accordance with federal law, and it had not been validly prohibited by the Secretary of the Interior. The Court will turn to these questions now.
c. Compliance with State Law
It is undisputed that Knauer was in complete compliance with state law. Knauer possessed a valid commercial fishing license from New York State. His license included a crab fishing permit, which in turn permitted the taking of horseshoe crabs.[14] At the time he was confronted by Park Police, Knauer had caught approximately 50-80 horseshoe crabs; he was permitted under his New York license, to take up to 500 crabs per day during the horseshoe crab season. Knauer was issued a summons several days before the end of horseshoe crab season. Furthermore, Knauer was catching horseshoe crabs with a gaff, a pole with a hook used to raise the crabs out of the water. The use of a gaff is classified as hand fishing under New York law and is a permitted method of catching horseshoe crabs. Knauer's compliance with New York law is undisputed.
d. Ban on Commercial Activity
The government has alleged that Knauer was catching horseshoe crabs in violation of 36 C.F.R. § 5.3, which prohibits:
Engaging in or soliciting any business in park areas, except in accordance with the provisions of a permit, contract, or other written agreement with the United States, except as such may be specifically authorized under special regulations applicable to a park area, is prohibited.
Because Knauer was operating in conformity with a commercial fishing license, and stated that he was catching horseshoe crabs to "earn a living," the government contends that he was engaged in business and thus in violation of § 5.3. This in turn, the government argues, places him in violation of § 2.1(a)(1)(i) because his activity was not otherwise authorized by federal law.
In support of this view, the government and the magistrate judge cite United States v. Duffy, 479 F.2d 1038 (2d Cir. 1973), in which the Second Circuit upheld a conviction for commercial fishing in a national park under § 5.3, despite the existence of other regulations permitting fishing generally. In Duffy, the Court held that "[i]t is the business activity, not the fishing, which the regulation prohibits." *389 Duffy, 479 F.2d at 1039. In other words, the fact that Duffy's conduct was commercial did not make his fishing illegal under an enabling act that required his conduct to be "in accordance with the laws of New York and the United States of America." 16 U.S.C. § 459e-4 (Fire Island National Seashore hunting and fishing regulations). Duffy was convicted only because he had violated § 5.3. Here, however, Knauer was not charged with a violation of § 5.3. Even if he could have been convicted for violating § 5.3 had he been charged under it,[15] this has no effect on his liability under § 2.1(a)(1)(i).
The government has not alleged that Knauer was in violation of any statute or regulation enacted by the Secretary of the Interior other than those already mentioned. Thus, the government must rely on the regulations enacted by the Superintendent of the Jamaica Bay Unit of Gateway under the authority delegated by the Secretary of the Interior. The Court will now consider the effect of these regulations.
3. Conviction on a Theory not Presented at Trial
Knauer argues that he cannot be convicted on the basis of the Compendium regulation, because the government never argued before or during the trial that this regulation supported his conviction. Indeed, although the government now argues that this regulation explicitly bans the taking of horseshoe crabs within the Jamaica Bay Unit, the government never once mentioned the existence of this regulation until after it was cited by the magistrate judge in support of Knauer's conviction.[16]
*390 It is well established that after a jury trial, a criminal conviction cannot be upheld on the basis of a theory not presented to the jury. McCormick v. United States, 500 U.S. 257, 269-70, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991); Chiarella v. United States, 445 U.S. 222, 236, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980); Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); Rewis v. United States, 401 U.S. 808, 814, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948); United States v. Ness, 565 F.3d 73, 79 (2d Cir.2009); United States v. Plaza Health Labs., Inc., 3 F.3d 643 (2d Cir.1993). These decisions, by highlighting the role of the jury, implicitly invoke the Sixth Amendment right to a jury trial, which would not be applicable in a bench trial like this case.[17]
On the other hand, these cases also emphasize core due process concerns which would be implicated just as strongly in a case tried before a judge. "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." Cole, 333 U.S. at 201, 68 S.Ct. 514; see also Dunn, 442 U.S. at 106, 99 S.Ct. 2190 ("Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused.").
Here, the government's case, both before and during trial, rested entirely on the theory that the Gateway Enabling Act, together with the Secretary's regulations applicable to the National Parks generally, had the effect of proscribing Knauer's conduct, without reference to any authority delegated to the Jamaica Bay Superintendent, or any regulations specific to the Jamaica Bay Unit.[18] The theory that Knauer's conviction could be upheld based on a regulation issued by the Superintendent and contained in the Compendium made its very first appearance in the magistrate judge's opinion after her sua sponte post-trial request for a copy of the Compendium *391 from the government.[19] Knauer had no opportunity to challenge the government's theory at trial, or even to establish whether the regulation in question was the appropriate governing law.[20]
Because the conviction on a legal theory that the defendant had no opportunity to contest violates due process, the magistrate judge's judgment must be reversed. Although there is some authority for the proposition that the case should be remanded for a new trial in which Knauer would have an opportunity to contest his conviction on the basis of the Compendium regulation, in this case, as described below, the Court finds as a matter of law that the Compendium regulation cannot support Knauer's conviction, and thus no remand is necessary.
4. Effect of Compendium Regulation
By regulation, the Secretary has delegated authority to manage individual park areas to park superintendents. A superintendent is defined as "the official in charge of a park area or an authorized representative thereof." 36 C.F.R. § 1.4(a). At the time of Knauer's summons and at the time of his trial, the Jamaica Bay Unit of Gateway was administered by Superintendent Lisa Eckert ("the Superintendent"). The Superintendent is empowered by several regulatory provisions to enact restrictions on the use of the park. These regulations are periodically published in a compendium.
Assuming, arguendo, that the version of the Compendium relied on by the magistrate judge was the law in effect at the time of Knauer's summons,[21] the Court finds that the regulation purporting to ban the hunting of horseshoe crabs within the Jamaica Bay Unit is void as an invalid exercise of the Superintendent's delegated regulatory authority.
a. Authority under § 2.2(d)
The Compendium contains a regulation directed specifically at the hunting of horseshoe crabs, stating:
36 CFR § 2.2WILDLIFE PROTECTION
(d) The transporting of lawfully taken wildlife through the park is permitted under the following conditions and procedures:
Hunting is prohibited within the Jamaica Bay Unit
The taking of terrapin turtles and horseshoe crab are prohibited throughout the Jamaica Bay Unit.
Compendium, at 7 (emphasis added). The first thing to note is that the Compendium is quite explicit about the authority under which its various rules were enacted. For example, the first several pages of the Compendium consist of regulations implemented in accordance with the Superintendent's authority under 36 C.F.R. § 1.5(a) to impose limits on the use of park areas. The prohibition on the taking of horseshoe crabs[22] appears in the Compendium under *392 the authority of 36 C.F.R. § 2.2(d), which provides:
The superintendent may establish conditions and procedures for transporting lawfully taken wildlife through the park area. Violation of these conditions and procedures is prohibited.
The regulation promulgated in the Compendium by the Superintendent does not even arguably come within the authority granted by § 2.2(d). The regulation allows restrictions on the transportation of lawfully taken wildlife. It provides no authority for the restrictions on the taking of wildlife itself; rather, it is addressed only to the transportation of wildlife taken lawfully. The government contends that the regulation is a valid exercise of the Superintendent's authority under § 2.2(d), but gives no explanation beyond the curious "lesser-power-includes-the-greater" argument that "it is reasonable to prohibit hunting and taking horseshoe crabs under § 2.2(d) because the prohibition qualifies which items can be lawfully transported." Gov't Br. 13. Even if the Court were to charitably construe the government's argument as suggesting that the Compendium regulation be read to bar only the transport of horseshoe crabs, this would not provide a basis for the prosecution of Knauer as he was not charged with the illegal transportation of wildlife.[23]
Finally, the Superintendent is explicitly given the authority to restrict uses of the park under a different provision, 36 C.F.R. § 1.5(a). While restrictions on the transportation of lawfully taken wildlife under § 2.2(d) appear to be entirely discretionary, the exercise of authority under § 1.5(a) is subject to several procedural requirements. Furthermore, another code provision, § 2.2(c), explicitly addresses the use of § 1.5(a) to restrict hunting, and imposes an additional procedural requirement before such power may be exercised. If the Superintendent were allowed to restrict hunting by exercising her purely discretionary authority under § 2.2(d), it would render the more restrictive procedural requirements of §§ 1.5 and 2.2(c) nullities.[24]
b. Authority under §§ 1.5(a) and 2.2(c)
Despite the explicit language and placement of the horseshoe crab regulation in the Compendium, the magistrate judge held, and the government argues, that the rule was a valid exercise of the Superintendent's authority under §§ 1.5(a) and 2.2(c). The Secretary has delegated to park superintendents authority to limit the permissible uses of parks, including by closing a park area entirely to designated activities:
*393 (a) Consistent with applicable legislation and Federal administrative policies, and based upon a determination that such action is necessary for the maintenance of public health and safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, equitable allocation and use of facilities, or the avoidance of conflict among visitor use activities, the superintendent may:
(1) Establish, for all or a portion of a park area, a reasonable schedule of visiting hours, impose public use limits, or close all or a portion of a park area to all public use or to a specific use or activity.
(2) Designate areas for a specific use or activity, or impose conditions or restrictions on a use or activity.
(3) Terminate a restriction, limit, closure, designation, condition, or visiting hour restriction imposed under paragraph (a)(1) or (2) of this section.
36 C.F.R. § 1.5(a). Under the plain language of this regulation, the Superintendent has the authority to close the Jamaica Bay Unit to the hunting of horseshoe crabs. Except in emergencies, however, the exercise of this authority is subject to several procedural prerequisites.
First, under § 2.2(c) the Superintendent must "consult with appropriate State agencies" prior to implementing a restriction on hunting. Second, § 1.7(a) requires that the Superintendent provide public notice of any restriction on park uses under the authority of § 1.5(a). Third, § 1.5(b) requires that significant or controversial use restrictions be published in the federal register. Finally, § 1.5(c) requires that the Superintendent "prepare a written determination justifying the action" prior to implementing use restrictions. The Superintendant has not complied with the last two of these requirements, and it is not at all clear that she has complied with any of them.[25]
i. Consultation with State Agencies
Under 36 C.F.R. § 2.2(c), the Superintendent is required to consult with state officials before implementing hunting restrictions:
Except in emergencies or in areas under the exclusive jurisdiction of the United States, the superintendent shall consult with appropriate State agencies before invoking the authority of § 1.5 for the purpose of restricting hunting and trapping or closing park areas to the taking of wildlife where such activities are mandated or authorized by Federal statutory law.
The appropriate New York state agency is the New York State Department of Environmental Conservation ("DEC"). At trial, Kim McKown, the Crustacean Unit leader at the DEC testified regarding New York State's regulation of the taking of horseshoe crabs and Mr. Knauer's compliance with New York law. When asked about the legality of catching horseshoe crabs within federal waters, McKown replied that she did not know.[26] As she is *394 directly responsible for the regulation of horseshoe crabs in the relevant state agency, see Trial Tr. 58:23-59:5, she is presumably the person with whom the Superintendent was required to consult under § 2.2(c). The fact that she was entirely unfamiliar with the regulation of horseshoe crabs within Gateway is at least circumstantial evidence that the Superintendent did not engage in the required consultation.
It is of course possible that the regulation was put in place before McKown held this position,[27] or that some other appropriate person at DEC was consulted, or even that McKown was consulted and has since forgotten. Unfortunately, because Knauer was provided no opportunity to contest the Compendium regulation at trial, the record is not fully developed on this point.
ii. Public Notice
The Superintendent must also provide public notice of any use restrictions promulgated under § 1.5(a):
Whenever the authority of § 1.5(a) is invoked to restrict or control a public use or activity, to relax or revoke an existing restriction or control, to designate all or a portion of a park area as open or closed, or to require a permit to implement a public use limit, the public shall be notified by one or more of the following methods:
(1) Signs posted at conspicuous locations, such as normal points of entry and reasonable intervals along the boundary of the affected park locale.
(2) Maps available in the office of the superintendent and other places convenient to the public.
(3) Publication in a newspaper of general circulation in the affected area.
(4) Other appropriate methods, such as the removal of closure signs, use of electronic media, park brochures, maps and handouts.
36 C.F.R. § 1.7(a). See also 36 C.F.R. § 1.5(e) ("Except in emergency situations, the public will be informed of . . . use or activity restrictions ... in accordance with § 1.7 of this chapter.").
The only evidence of public notice presented at trial or referenced by the government is a park brochure containing broad language concerning the preservation of natural resources: "All natural and cultural resources, including wildlife, rocks, plants and structures are protected by federal law. Do not disturb or destroy." This language is clearly insufficient to satisfy the requirements of § 1.7(a). First, it gives no notice of the specific restrictions instituted by the Superintendent, including the purported ban on the taking of horseshoe crabs. The notice envisioned by § 1.7(a) is required for every park restriction and for the removal of a restrictionthat is, the regulation requires that any change in park regulations be publicized. There is no information in the record concerning how frequently park brochures are updated, but it is difficult to imagine that such a vaguely worded statement could give any notice that park rules had changed. Second, if construed as legal notice of the *395 regulations governing the Jamaica Bay Unit, the brochure's statement is flatly inaccurate as a matter of law. The brochure indicates that all natural resources within the park are protected and instructs visitors not to disturb them. Yet, the Jamaica Bay Compendium expressly allows the taking of certain natural specimens, for example: the collection of dead wood for campfires in designated areas, Compendium 36 C.F.R. § 2.1(a)(4); the collection of unoccupied seashells and up to a gallon per person per day of edible fruits, nuts, berries, and mushrooms, Compendium 36 C.F.R. § 2.1(c); and the taking of minnows and shrimp in designated areas, Compendium 36 C.F.R. § 2.3(a). The park brochure neither accurately informs the public concerning permissible uses of the park nor gives notice of changes in the allowed uses. To hold that § 1.7(a) is satisfied by such a vague statement entirely vitiates the public notice requirement and utterly fails to "provide for consistent and effective public notification of the imposition of a closure or other restriction or control." 47 Fed. Reg. 11598, 11599 (Mar. 17, 1982).
Furthermore, the public availability of the Compendium does not satisfy the public notice requirement of § 1.7(a).[28] Under § 1.7(b), the issuance of the Compendium is mandated "[i]n addition to the above-described [in § 1.7(a)] notification procedures" (emphasis added). It is of course possible that public notice was adequately provided by other publications apart from the brochure introduced at trial,[29] but again, because Knauer was provided no opportunity to contest the Compendium regulation at trial, the record is not fully developed on this point.
iii. Publication in the Federal Register
The Superintendent is required, under 36 C.F.R. § 1.5(b), to publish certain regulations promulgated pursuant to § 1.5(a), including, among others, those that "result in a significant alteration in the public use pattern of the park area" or are "of a highly controversial nature," in the Federal Register:
Except in emergency situations, a closure, designation, use or activity restriction or condition, or the termination or relaxation of such, which is of a nature, magnitude and duration that will result in a significant alteration in the public use pattern of the park area, adversely affect the park's natural, aesthetic, scenic or cultural values, require a long-term or significant modification in the resource management objectives of the unit, or is of a highly controversial nature, shall be published as rulemaking in the Federal Register.
The government has argued that restrictions on hunting do not fall within any of the specified categories. Knauer, on the other hand, argues that hunting restrictions are precisely the sort of restrictions of which the public must be informed. Knauer cites a number of cases in which the regulation of hunting in the national parks was contested as evidence of the controversial nature of hunting restrictions. See Fund for Animals v. Mainella, 294 F.Supp.2d 46 (D.D.C.2003); Mich. United Conservation Clubs v. Lujan, 949 F.2d 202 (6th Cir.1991); Mo. Trappers Ass'n v. Hodel, No. S 86-0193C(D), 1987 WL 119731 (E.D.Mo. May 21, 1987); Nat'l Rifle Ass'n of Am. v. Potter, 628 F.Supp. 903 (D.D.C.1986); Voyageurs Nat'l Park *396 Ass'n Defenders of Wildlife v. Arnett, 609 F.Supp. 532 (D.C.Minn.1985).
The Court notes that hunting and fishing are the only activities that are specifically singled out for special treatment in the Secretary's regulations delegating authority to the Superintendent to restrict the use of park areas. See 36 C.F.R. § 2.2(c) (requiring consultation with state officials prior to restricting hunting); 36 C.F.R. § 2.3(c) (requiring consultation with state officials prior to restricting fishing). Furthermore, of all the recreational activities for which Gateway could potentially be used, hunting is one of only a very few that the Gateway Enabling Act specifically instructs the Secretary to allow. 16 U.S.C.A. § 460cc-2(f) ("The Secretary shall permit hunting, fishing, shellfishing, trapping, and the taking of specimens."). The treatment of hunting by both Congress and the Secretary seems flatly inconsistent with the idea that hunting restrictions are so minor and uncontroversial that the Superintendent need not provide notice of their restriction in the federal register.
iv. Written Justification
Finally, before imposing restrictions under § 1.5(a), 36 C.F.R. § 1.5(c) requires the Superintendent to prepare written determinations, available to the public upon request, justifying those restrictions:
Except in emergency situations, prior to implementing or terminating a restriction, condition, public use limit or closure, the superintendent shall prepare a written determination justifying the action. That determination shall set forth the reason(s) the restriction, condition, public use limit or closure authorized by paragraph (a) has been established, and an explanation of why less restrictive measures will not suffice, or in the case of a termination of a restriction, condition, public use limit or closure previously established under paragraph (a), a determination as to why the restriction is no longer necessary and a finding that the termination will not adversely impact park resources. This determination shall be available to the public upon request.
The Superintendent complies with this requirement by including such written determinations in the Compendium, which states that "[w]ritten determinations, which explain the reasoning behind the Superintendent's use of discretionary authority, as required by Section 1.5(c), appear in this document identified by italicized print." Compendium 1. Such explanatory statements accompany the regulations listed under 36 C.F.R. § 1.5(a).[30] The ban on the taking of horseshoe crabs, listed under 36 C.F.R. § 2.2(d), is accompanied by no such written determination. It thus fails to comply with the procedural requirements imposed *397 on the Superintendent's regulatory authority and is therefore invalid.
5. Judicial Notice of the Compendium Regulation
The Superintendent of the Jamaica Bay Unit of Gateway has the authority under regulations promulgated by the Secretary of the Interior to issue additional regulations governing the Jamaica Bay Unit. By regulation, the Superintendent is required to collect these regulations in a Compendium, updated annually. 36 C.F.R. § 1.7(b). After Knauer's trial, the government, at the magistrate judge's request, provided a copy of the Compendium alleged to have been in effect at the time of Knauer's summons. The magistrate judge took judicial notice of a regulation contained within this Compendium, and on that basis convicted Knauer of a violation of 36 C.F.R. § 2.1(a)(1)(i).
Knauer argues that judicial notice of the Compendium was inappropriate under Rule 201 of the Federal Rules of Evidence. Under that rule, a court may take notice of a fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). Although courts may generally take judicial notice of administrative regulations, Knauer argues that such notice is inappropriate in this case because "[t]he compendium's veracity and authenticity have been substantially called into question," Def.'s Br. 38, whereas judicial notice applies only "to sources whose accuracy cannot reasonably be questioned," Fed.R.Evid. 201(b).
As an initial matter, although both Knauer and the government cite Rule 201 as the governing standard, it does not apply. Rule 201, by its own terms applies only to so-called "adjudicative facts." Fed. R.Evid. 201(a) ("This rule governs only judicial notice of adjudicative facts."). The advisory note accompanying Rule 201 defines adjudicative facts narrowly as "simply the facts of the particular case." Fed. R.Evid. 201, Note to Subdivision (a). This is contrasted with both legislative facts which "are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body," and other "non-adjudicative facts" such as "non-evidence facts [used] to appraise or assess the adjudicative facts of the case." Id. The lack of a rule governing judicial notice of legislative facts "renders inappropriate any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level." Id.
The advisory note further explains that Rule 201 was not intended to apply to questions which are characterized as matters of law rather than matters of fact stating that "the manner in which law is fed into the judicial process is never a proper concern of the rules of evidence but rather of the rules of procedure." Fed. R.Evid. 201, Note on Judicial Notice of Law; cf. Fed.R.Civ.P. 44.1 ("In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination must be treated as a ruling on a question of law."); Fed.R.Crim.P. 26.1 ("Issues of foreign law are questions of law, but in deciding such issues a court may consider any relevant material or sourceincluding testimonywithout regard to the Federal Rules of Evidence."); *398 see also United States v. Hernandez-Fundora, 58 F.3d 802, 812 (2d Cir.1995) ("[W]hile courts may take judicial notice of either legislative or adjudicative facts, only notice of the latter is subject to the strictures of Rule 201.").[31]
The issue of what regulations were in effect in the Jamaica Bay Unit of Gateway at the time of Knauer's summons is a pure question of law, and thus is not governed by Rule 201, but rather by common law principles. Because it is a question of law, this Court reviews the magistrate judge's determination de novo, rather than under a clearly erroneous standard. Cf. Lockhart v. McCree, 476 U.S. 162, 168 n. 3, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) ("We are far from persuaded, however, that the "clearly erroneous" standard of Rule 52(a) applies to the kind of "legislative" facts at issue here.").
The magistrate judge cited a string of Supreme Court cases for the proposition that "courts may take judicial notice of the rules and regulations of an administrative agency, including in criminal cases." Knauer, 635 F.Supp.2d at 206 n. 2. This is undeniably true. It does not imply, however, that judicial notice of purported administrative regulations will be appropriate in all cases. In none of the cases cited by the magistrate judge is there an indication of any real dispute between the parties concerning either the authenticity or accuracy of the regulation in question. Rather, the cases establish that courts are not barred from considering administrative regulations by mere technicalities like the failure to formally introduce the regulation into evidence or to have it formally authenticated.
In this case, however, Knauer does not merely argue that the formal rules of evidence prevent the consideration of the Compendium, but, in fact, contests whether the version of the Compendium provided to the magistrate judge by the government is in fact the version in effect at the time of Knauer's summons. On the evidence presently before it, the Court has no way of definitively resolving this issue, but in light of the curious circumstances surrounding this Compendium's purported issuance, Knauer's argument is certainly not frivolous.
At the time of Knauer's trial, the version of the Jamaica Bay Compendium in effect was dated June 28, 2007.[32] This version of the Compendium included the regulation prohibiting the hunting of horseshoe crabs. Because this version post-dated Knauer's summons, the magistrate judge requested from the government the version of the Compendium then in effect. The government provided a substantively identical version of the Compendium dated May 25, 2007a mere four days before Knauer's summons.
A number of unexplained oddities surrounding this version of the Compendium give the Court serious pause. The government has provided no explanation as to why two compendia were issued by the Jamaica Bay Unit only a month apart.[33] A *399 comparison of the two compendia by the Court has revealed that they are entirely identical with only two exceptions: (1) the May 25 Compendium is not signed by the Jamaica Bay Superintendent, but instead has the printed words "Signature on File," and (2) the date is different. It is difficult to understand why an unsigned 2007 Compendium would be issued by the Jamaica Bay Unit on May 25, and then a separate signed Compendium would be released, identical in every respect but dated a month later. It is especially odd in light of the fact that after releasing two compendia in quick succession, no further update was issued until almost three years later.[34]
Unexpectedly, the newly issued 2010 Compendium gives more reason to doubt the accuracy of the May 25, 2007 Compendium. This 2010 Compendium is signed by the Superintendent of Gateway and contains a separate section applying to each of three park units: the Jamaica Bay Unit, the Sandy Hook Unit, and the Staten Island Unit. Prior to the publication of the 2010 Compendium, the regulations for the different park units were not combined in a single Compendium. Rather, separate compendia for the Jamaica Bay Unit and the Sandy Hook Unit were available on the Gateway website (no Compendium for the Staten Island Unit was available on the website). These compendia were signed by the superintendents of the individual park units, rather than by the Superintendent of Gateway.
The following text appears at the bottom of each page of the 2010 Compendium: "SOL Review: A. Conte completed 07/27/2006 only minor date changes in 2007, 2008, 2009, 2010." This would suggest that the regulations contained in the 2010 compendium, including the prohibition on the taking of horseshoe crabs, have been in place since at least July 2006. But there is strong reason to believe that this change history as inaccurate. As an initial matter, it is simply not true that only minor date changes have been made. The Court has discovered at least two substantive changes to the Jamaica Bay Unit regulations between the 2007 Compendium[35] and the 2010 Compendium. First, the 2007 Compendium includes a list of park locations in which the use of temporary shade structures is permitted. In the 2010 Compendium, one location, Floyd Bennett Field, has been removed from the list. Compendium 36 C.F.R. § 2.10(a). Second, the 2007 Compendium indicates that "[t]he use of personal water craft is prohibited, except in navigable channels," while the 2010 Compendium states simply that "[t]he use of personal water craft is prohibited." Compendium 36 C.F.R. § 3.3. Revealingly, the amended watercraft regulation in the published 2010 Compendium is immediately followed by what is presumably an internal comment which reads "(I believe we are back to no PWC [personal watercraft] at all)," suggesting that a process of revising the Compendium was underway. Furthermore, a different provision in the 2010 *400 Compendium specifically directed at personal watercraft has not been updated, and reads "PWCs are prohibited within the Jamaica Bay Unit except in navigable channels" (emphasis added), and thus now contradicts the amended provision indicating a blanket prohibition.
In addition, the change history indicates that updated compendia were issued in 2008 and 2009. This too appears to be false as to the Jamaica Bay Unit. As the government has admitted, as of early 2010, the most recent version of the Compendium available online was the 2007 version, and no evidence has been presented that any 2008 or 2009 Jamaica Bay Compendium exists. In fact, except for the addition of the year "2010," the change history on the 2010 Compendium is identical to one found on the 2009 Compendium for the Sandy Hook Unit. It appears that it was simply cut-and-pasted from that earlier compendium and applied to the entire 2010 Compendium, despite the fact that prior to 2010 the compendia were released under the authority of separate unit superintendents and their releases do not appear to have been coordinated.
Gateway's questionable document management practices, specifically, the release of draft comments in a published regulation and the inclusion of a document history that did not accurately reflect changes to the regulations, cast even more doubt on the decision to accept uncritically that an unsigned version of the compendium provided to the government by Gateway was in fact the version in effect at the time of Knauer's summons.[36]
It is undoubtedly within this Court's authority to take judicial notice of agency regulations, including those issued by an administrative subunit. In this case, however, where the regulation in question was not brought to the Court's attention by the parties and the Court cannot without difficulty verify its authenticity, the Court will decline to take notice of it. See Cont'l Technical Servs., Inc. v. Rockwell Int'l Corp., 927 F.2d 1198, 1199 (11th Cir.1991); Prudential Ins. Co. of Am. v. Carlson, 126 F.2d 607, 611 (10th Cir.1942).
CONCLUSION
For the aforementioned reasons, defendant Knauer's conviction must be REVERSED and a judgment of acquittal must be entered.
SO ORDERED.
NOTES
[1] The following facts are undisputed.
[2] The Secretary of the Interior's regulations define fish as "any member of the subclasses Agnatha, Chondrichthyes, or Osteichthyes, or any mollusk or crustacean found in salt water." 36 C.F.R. § 1.4(a). Horseshoe crabs are members of the subphylum Chelicerata of the phylum Arthropoda, and thus, unlike true crabs or lobster, are not fish for purposes of federal law. Fishing is defined as "taking or attempting to take fish," id., and thus does not include the taking of horseshoe crabs. Magistrate Judge Go held that the term "commercial fishing," which is not defined in the regulations, should be interpreted to incorporate the definition of "fishing," and thus the commercial harvesting of horseshoe crabs would not be commercial fishing. The government has not appealed this decision.
[3] These issues are discussed at length below.
[4] Indeed, the government did not rely on the Compendium regulations at any point prior to or during trial. Rather, the government relied at trial on two separate theories of Knauer's guilt: (1) under 36 C.F.R. § 2.2(b)(2) hunting was prohibited by default in Gateway absent specific authorization, and (2) the Gateway Enabling Act's authorization of hunting implicitly excludes commercial activities. The magistrate judge convicted Knauer primarily under a third theory, that a regulation promulgated by the Jamaica Bay Superintendent and published in the Compendium prohibited Knauer's conduct, but she also endorsed the government's second theory regarding commercial activities. The magistrate judge explicitly did not adopt the government's first theory, holding instead that hunting was authorized by default at Gateway under 36 C.F.R. § 2.2(b)(1). Knauer, 635 F.Supp.2d at 208.
[5] Magistrate Judge Go also found that the phrase "commercial fishing," which is not defined in the regulations, incorporates the definition of "fishing" and thus does not cover the taking of horseshoe crabs. The government argued that "commercial fishing" is a non-compositional phrase which should be interpreted more broadly than "fishing." Because the government did not appeal Knauer's acquittal on the commercial fishing charge, the Court need not consider this question.
[6] The specific procedural requirements that 36 C.F.R. § 2.2(c) imposes on park superintendents when restricting hunting are discussed in more detail below.
[7] See, e.g., 16 U.S.C. § 90c-1 (North Cascades National Park); 16 U.S.C. § 230d (Jean Lafitte National Historical Park and Preserve); 16 U.S.C. § 410aaa-46 (Mojave National Preserve); 16 U.S.C. § 410fff-5 (Black Canyon of the Gunnison National Park); 16 U.S.C. § 410hhh-5 (Great Sand Dunes National Park and Preserve); 16 U.S.C. § 459e-4 (Fire Island National Seashore); 16 U.S.C. § 459f-4 (Assateague Island National Seashore); 16 U.S.C. § 459g-3 (Cape Lookout National Seashore); 16 U.S.C. § 459h-2 (Gulf Islands National Seashore); 16 U.S.C. § 459i-4 (Cumberland Island National Seashore); 16 U.S.C. § 459J-3 (Canaveral National Seashore); 16 U.S.C. § 460m-4 (Ozark National Scenic Riverways); 16 U.S.C. § 460m-10 (Buffalo National River); 16 U.S.C. § 460m-20 (New River Gorge National River); 16 U.S.C. § 460n-4 (Lake Mead National Recreation Area); 16 U.S.C. § 460o-5 (Delaware Water Gap National Recreation Area); 16 U.S.C. § 460q-4 (Whiskeytown-Shasta-Trinity National Recreation Area); 16 U.S.C. § 460s-4 (Pictured Rocks National Lakeshore); 16 U.S.C. § 460t-3 (Bighorn Canyon National Recreation Area); 16 U.S.C. § 460w-4 (Apostle Islands National Lakeshore); 16 U.S.C. § 460x-4 (Sleeping Bear Dunes National Lakeshore); 16 U.S.C. § 460y-4 (King Range National Conservation Area); 16 U.S.C. § 460dd-4 (Glen Canyon National Recreation Area); 16 U.S.C. § 460ee (Big South Fork National River and Recreation Area); 16 U.S.C. § 460hh-2 (Chickasaw National Recreation Area); 16 U.S.C. § 460uu-22 (El Malpais National Conservation Area); 16 U.S.C. § 460ww-1 (Gauley River National Recreation Area); 16 U.S.C. § 460ccc-2 (Red Rock Canyon National Conservation Area); 16 U.S.C. § 460eee-1 (Lake Meredith National Recreation Area); 16 U.S.C. § 460fff-1 (Amistad National Recreation Area); 16 U.S.C. § 460nnn-23 (Steens Mountain Cooperative Management and Protection Area); see also 16 U.S.C. § 460mmm-4 (Mcinnis Canyons National Conservation Area, "[h]unting... shall be allowed"); 16 U.S.C. § 460ooo-4 (Las Cienegas National Conservation AreaArizona, "[h]unting shall be allowed").
[8] See, e.g., 16 U.S.C. § 410fff-3 (privately owned lands within Black Canyon of the Gunnison National Park); 16 U.S.C. § 459b-6 (Cape Cod National Seashore); 16 U.S.C. § 459c-6 (Point Reyes National Seashore).
[9] The Court has identified two statutes, 16 U.S.C. § 460nn-3 (Robert T. Stafford White Rocks National Recreation Area), 16 U.S.C. § 460rr-2 (Pine Ridge National Recreation Area), which instruct that the Secretary "shall permit" hunting but do not grant the authority to make exceptions, however, both of these parks are administered by the Secretary of Agriculture, not the Secretary of the Interior, and thus are not subject to 36 C.F.R. § 2.2(b). See 16 U.S.C. § 1c ("The `national park system' shall include any area of land and water now or hereafter administered by the Secretary of the Interior through the National Park Service for park, monument, historic, parkway, recreational, or other purposes.").
[10] See, e.g., 16 U.S.C. § 26 (Yellowstone National Park); 16 U.S.C. § 60 (Sequoia and Yosemite National Parks); 16 U.S.C. § 98 (Mount Rainier National Park); 16 U.S.C. § 117c (Mesa Verde National Park); 16 U.S.C. § 127 (Crater Lake National Park); 16 U.S.C. § 170 (Glacier National Park); 16 U.S.C. § 198c (Rocky Mountain National Park); 16 U.S.C. § 204c (Lassen Volcanic National Park); 16 U.S.C. § 256b (Olympic National Park); 16 U.S.C. § 395c (Hawaii National Park); 16 U.S.C. § 403c-3 (Shenandoah National Park); 16 U.S.C. § 403h-3 (Great Smoky Mountains National Park); 16 U.S.C. § 404c-3 (Mammoth Cave National Park); 16 U.S.C. § 408k (Isle Royale National Park).
[11] See supra statutes listed in note 7.
[12] See supra statutes listed in note 8.
[13] The efforts by the superintendent of the Jamaica Bay Unit to promulgate regulations prohibiting hunting in the Jamaica Bay Unit further support the determination that Gateway is governed by 36 C.F.R. § 2.2(b)(1). If Gateway were governed by § 2.2(b)(2), then hunting would be prohibited by default absent regulations specifically authorizing it, and thus the park superintendent's regulations would have been entirely superfluous.
[14] The magistrate judge held that Knauer's possession of New York state permits was without effect in a national park because "[u]nder the Supremacy Clause, federal law supercedes conflicting state law." Knauer, 635 F.Supp.2d at 207 n. 3. This argument has no force when dealing with statutes and regulations that explicitly incorporate state law. 16 U.S.C. § 460cc-2(f) ("The Secretary shall permit hunting ... in accordance with ... the laws of the States of New York and New Jersey...."): 36 C.F.R. § 2.2(b)(4) ("Where hunting or trapping or both are authorized, such activities shall be conducted in accordance with Federal law and the laws of the State within whose exterior boundaries a park area or a portion thereof is located. Nonconflicting State laws are adopted as a part of these regulations.").
[15] It appears likely that he would have been liable under § 5.3. The Duffy court held that a specific regulatory authorization of fishing did not supersede the general prohibition on commercial activities. Duffy, 479 F.2d at 1039; but see id. at 1040 (Anderson, J., dissenting).
[16] The only evidence at trial related to the Compendium was testimony by Superintendent Eckert. Her discussion of the Compendium, in its entirety, follows:
Q: And what, if any, other responsibilities do you have with regards to the rules and regulations of the park?
A: There are opportunities where I interpret those laws and regulations. If, for instance, the code of Federal regulations has a stipulation about the superintendent may further authorize something, then I can do so and put that into a document called a compendium.
Q: And what exactly is the compendium?
A: The superintendent's compendium fine tunes more of what's in the code of Federal regulations.
Q: And what, if anything, can you do if a law is confusing or ambiguous?
A: The superintendent's compendium would clarify something that might be in the regulation that says the superintendent has authority to change the hours of this area of the park. So, I havediscretionary authority, is the name of that authority.
Trial Transcript ("Trial Tr."), dated Apr. 23, 2008, at 94:24-95:15. There was no further mention of the Compendium during the trial, nor is there any indication that any Compendium regulation existed that was relevant to Knauer's conviction.
At oral argument, the government contended that, while the above exchange was the only mention of the Compendium, the Superintendent subsequently referenced regulations enacted to prohibit the hunting of horseshoe crabs, and hunting generally, in the Jamaica Bay Unit. This contention is entirely unsupported by the trial record, and, in fact, the Superintendent's actual testimony was more nearly the opposite.
The following exchange occurred between the government and the Superintendent regarding the effect of 36 C.F.R. § 2.2:
Q: Okay. And could you briefly explain what this section provides?
A: This is the section that also discusses wildlife is protected. However, hunting may be allowed, but there's a certain stipulation to that. And there needs to be a lawthe regulation needs to specifically say, and it can't be in contradiction to any state laws.
Q: Okay. And just to clarify, is there such a law on the books that you know of?
A: For Gateway National Recreation Area? There's no specific law.
Q: And so, as it says here, is the taking of wildlife or hunting permitted at Gateway?
A: It is not.
Trial Tr. 104:3-16 (emphasis added). The Superintendent implicitly endorses the position that Gateway is governed by 36 C.F.R. § 2.2(b)(2) and states that there is no regulation specific to Gateway which authorizes hunting. This is a far cry from referencing a hunting prohibition promulgated by the Superintendent. In fact, it seems more natural to read the Superintendent's language as suggesting that there are no relevant regulations specific to Gateway and that only the Secretary's regulations are implicated. The government's brief similarly mischaracterized this testimony, stating that "Superintendent Eckert prohibited hunting horseshoe crabs in the Jamaica Bay Unit." Gov't Br. 5.
[17] Another rationale underlying some of these cases is the principle that an appellate court should not affirm a conviction on grounds not considered by the trial court. See also Eaton v. City of Tulsa, 415 U.S. 697, 698-99, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974) (refusing to affirm contempt finding on grounds different from those cited by the trial judge). This argument would not come into play here where the government asks this Court to affirm on the basis of a theory that, although it was not presented at trial, was relied upon by the trial judge to convict Knauer.
[18] After trial, the government has continued to argue that Knauer's conviction may be upheld without regard to any regulations adopted by the Superintendent of the Jamaica Bay Unit. But the government also argues that the Compendium regulation independently supports Knauer's conviction.
[19] "Exercising her discretionary authority, the Superintendent of the Jamaica Bay Unit issued rules prohibiting hunting and the taking of horseshoe crabs in the Jamaica Bay Unit." Knauer, 635 F.Supp.2d at 208.
[20] The government criticizes Knauer for his failure to challenge the validity of the Compendium regulation at trial. Gov't Br. 26 n. 13. Such a criticism is ironic in light of the fact that the government never once mentioned the regulation at trial or in pre-trial filings, let alone relied on it as a basis of conviction.
[21] This assumption is addressed more critically below.
[22] At oral argument, the government also relied on the blanket hunting prohibition that immediately precedes the prohibition on taking horseshoe crabs. This is a brand new theory. It was not presented before or during trial, was not relied on (or mentioned) by the magistrate judge, was not argued in the government's brief, and the Court will certainly not entertain it for the first time now. It is worth noting, however, that this regulation suffers from all the same infirmities as the regulation prohibiting the taking of horseshoe crabs.
[23] Knauer also argues that this reading is implausible. According to him, fishermen who legally catch horseshoe crabs in New York State waters routinely pass through Gateway when returning to dock, and the Superintendent could not have intended to ban this passage. Def.'s Br. 23 n. 14. The Court need not consider this question because Knauer was not charged with illegal transportation of wildlife under § 2.2(d).
[24] Cf. 47 Fed. Reg. 11598, 11599 (Mar. 17, 1982) ("Each of the five categories of controls [under § 1.5(a)] serves a specific purpose. A visiting hour restriction, for example, may not be imposed for the purpose of achieving an activity restriction. Similarly, activity restrictions may not be imposed to such a degree that they will, in effect, result in the closure of an area to all use.").
[25] It is worth noting that none of these requirements apply to regulations on transportation of wildlife promulgated under the authority of § 2.2(d). The failure to follow these procedural steps reinforces the Court's belief that § 2.2(d) and only § 2.2(d) is the appropriate authority under which to analyze the horseshoe crab regulation.
[26] The full exchange was as follows:
Q: Okay. Do DEC permits allow for a holder to commercially fish for horseshoe crabs in Federal water?
MR. MOULTER: Objection, Your Honor.
THE COURT: Do you know regarding the fishing in Federal waters?
THE WITNESS: No.
THE COURT: Regulations regarding Federal waters?
THE WITNESS: No.
THE COURT: It's sustained.
Trial Tr. 68:24-69:7.
[27] Although the parties dispute the date of the initial promulgation of this regulation, see below, the earliest date that has been cited in this litigation is May 25, 2007. McKown testified that she has been at DEC for twenty-two years, but it is not clear how long she has been the Crustacean Unit leader.
[28] The parties contest whether the Compendium was in fact publicly available.
[29] At oral argument, in support of its argument that the notice requirement of § 1.7(a) had been satisfied, the government cited only this brochure.
[30] It is questionable whether these determinations comply with the requirements of § 1.5(c). For example, a list of several dozen park closuressome closing specific park areas entirely, and others prohibiting only certain usesis followed by a single sentence explaining that "[c]losures have been determined according to resource protection, operational capacity and visitor safety." Compendium 36 C.F.R. § 1.5(a)(1). This hardly seems to satisfy the requirement under § 1.5(c) that written determinations "shall set forth the reason(s) the restriction, condition, public use limit or closure authorized by paragraph (a) has been established, and an explanation of why less restrictive measures will not suffice," and is impossible to square with the goal of "provid[ing] a meaningful explanation of the reason the action was taken." 47 Fed. Reg. 11598, 11599 (Mar. 17, 1982).
[31] One prominent treatise criticizes the very terminology of "judicial notice of law," characterizing this historically "anomalous" idea as the result of "perverse doctrinal creep." 21B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5102.1 (2d ed. 2005). Nevertheless, the concept and terminology are well established.
[32] A new version of the Compendium, labeled 2010 and dated April 3, 2010, is now available at http://www.nps.gov/gate/parkmgmt/upload/2010%20GATE%20Compendium.pdf (last visited Apr. 20, 2010). This 2010 Compendium is discussed further below.
[33] Under 36 C.F.R. § 1.7(b), the Superintendent is instructed that the compendium "shall be updated annually." Both compendia were prominently labeled "2007."
[34] Knauer has represented that prior to trial he requested from Gateway the version of the Compendium in effect at the time of his summons, and was provided with the 1997 version. If there was indeed no compendium issued between 1997 and 2007, then it seems exceedingly odd that the Jamaica Bay Unit would issue identical compendia a month apart after going ten years without issuing a new version. Because neither the 1997 Compendium nor Knauer's correspondence with Gateway are in the record, the Court does not rely on this allegation in its analysis.
[35] Because the May 25 and June 28 compendia are substantively identical in every respect, the Court refers to them collectively as the "2007 Compendium."
[36] It is worth noting also that the Superintendent's silence at trial regarding the Compendium regulation is suggestive. If the horseshoe crab regulation was in effect at the time of Knauer's summons (and especially if it had been implemented only days earlier), it is surprising that the Superintendent failed to mention it once despite ample opportunity to do so. On the other hand, if the regulation had in fact been issued a month after Knauer's summons, then this silence is very understandable. Drawing attention to a new regulation passed in the immediate aftermath of Knauer's summons might have given rise to an inference that it was enacted in response to that arrest and might have suggested an awareness by the Superintendent that a legal loophole caused by the different classifications of horseshoe crabs by New York and the Secretary had potentially left Knauer's conduct unprohibited.
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866 F.2d 432
Tope (Ernest Richard)v.Broglin (G. Michael)
NO. 88-1163
United States Court of Appeals,Seventh Circuit.
DEC 29, 1988
1
Appeal From: N.D.Ind.
2
AFFIRMED.
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181 Cal.App.3d 540 (1986)
226 Cal. Rptr. 666
In re the Marriage of CYNDEE L. and ROBERT A. HORN.
ROBERT A. HORN, Appellant,
v.
CYNDEE L. HORN, Respondent.
Docket No. D002538.
Court of Appeals of California, Fourth District, Division One.
May 23, 1986.
*541 COUNSEL
Wright & L'Estrange, John C. O'Neill, Robert C. Wright, Bruney & Bruney and Kim M. Bruney for Appellant.
Lightner & Castro, John C. Lightner and Leslie A. Cummings for Respondent.
OPINION
WORK, J.
Robert Horn appeals a judgment awarding Cyndee L. Horn a community interest in his severance pay received from the National Football League.
*542 I
The parties married on June 8, 1974, and separated on January 25, 1983. Robert was employed as a professional football player from 1976 to 1984, playing with the National Football League during the 1976 through 1983 seasons and with the New Jersey Generals of the United States Football League during the 1984 season. After the 1984 season, he was released from the Generals, and at the time of trial (Aug. 1984), was unemployed.
In 1982, the National Football League Players Association (Union) and the management of the National Football League (NFL) added a "severance pay" provision to their collective bargaining agreement (CBA) which provides that any player credited with two or more seasons with the NFL is entitled to receive a lump sum of severance pay,[1] computed on how many seasons played with the NFL.
*543 In October 1983, the Union and the NFL entered into a settlement agreement interpreting the severance provision of the CBA. The agreement requires the player send a letter expressing his intention to permanently retire from professional football and execute a demand note providing that should he return to professional football (in the NFL or any other league) within 12 months from the date of receipt of the severance pay, he shall pay back the severance pay received and accrue no more severance pay for the seasons he plays after his return. However, the agreement provides he shall have the right to have the severance pay paid to him again when he permanently retires. The agreement specifies when the player shall receive the severance pay, which depends on when he notifies the NFL club of his intent to retire, and provides for withholding of severance pay if the NFL believes the player has not permanently retired, and for a grievance-arbitration procedure to settle the dispute. Finally, the agreement states that if the player dies, his stated beneficiary or estate shall receive his severance pay.[2]
*544 The CBA also contains a retirement plan provision and a termination pay provision.[3]
Robert is eligible for a lump sum severance payment of $100,000, based on his eight seasons with the NFL.[4]
II
In In re Marriage of Skaden (1977) 19 Cal.3d 679 [139 Cal. Rptr. 615, 566 P.2d 249], the California Supreme Court found termination benefits to be community property. Skaden involved termination pay payable to an insurance sales agent under an employment agreement, which provided for *545 the benefits after two or more years of employment, based on percentages of net premiums collected within a five-year period after termination on policies credited to the agent's account. Payments were to be made on an installment basis, and subject to limitations on competitive activities by the terminated agent.[5]
Skaden rejected the argument the payments were "consideration for termination" because nothing in the agreement so suggested, and since termination could be involuntary (i.e., upon death or the company's notice, rather than the agent's notice). Skaden also rejected the argument the payments were consideration for compliance with specified conditions (i.e., the agent's forbearance from engaging in competitive activities), since the amount of payment did not depend on the degree of compliance with the conditions, but related directly to the policies credited to the agent's account at the time of termination. Skaden concluded the benefits were, like pension benefits, "a form of deferred compensation for services rendered," noting the right to the benefits were "derived from the terms of the employment contract" and became vested after two years of employment. (Id., at pp. 686-867.)
In contrast, In re Marriage of Flockhart (1981) 119 Cal. App.3d 240 [173 Cal. Rptr. 818], In re Marriage of Wright (1983) 140 Cal. App.3d 342 [189 Cal. Rptr. 336], and recently, In re Marriage of Kuzmiak (1986) 176 Cal. App.3d 1152 [222 Cal. Rptr. 644], found various types of termination pay to be separate property.
Flockhart involved "weekly lay-off" benefits paid by the United States to an employee adversely affected by the government's expansion of Redwood National Park. Flockhart equated the benefits to disability and workers' compensation benefits given, because of an employee's status as a disabled person, to presently compensate for loss of earnings, not to compensate for services previously rendered. The undisputed purpose of the Redwood Employee Protection Program was to replace lost income, the payments were reduced by present earnings, and the payments were not received because of any contractual agreement, but because of the employee's status as an "affected employee." (In re Marriage of Flockhart, supra, 119 Cal. App.3d 240, 243.) Flockhart distinguished Skaden as involving a contractual right for deferred compensation. (Flockhart, supra, at p. 243, fn. 2.)
Wright considered employee termination pay as a voluntary payment by the employer, and not as part of the employment contract. The employer, *546 a hospital administrator, testified he paid the money because he recognized the employee would have difficulty securing further employment because the employee's father-in-law (the hospital chaplain) and the employee's wife had threatened to ruin him financially, professionally, and personally. The benefits were considered analogous to those in Flockhart and the disability benefits cases, noting that in the latter the compensation is for future loss of earnings even if the right to the payments accrued during marriage. (Wright, supra, 140 Cal. App.3d 342, 344-345.) Wright distinguished Skaden because it involved a contract right payable irrespective of continued employment, whereas in the disability cases, they were made because employment was no longer available.
Kuzmiak involved military separation pay to personnel discharged because they fail to be promoted, and based on the number of years served and annual salary. The legislative history of 10 United States Code section 1174, states: "The separation pay is a contingency payment for an officer who is career committed but to whom a full military career may be denied. It is designed to encourage him to pursue his service ambition, knowing that if he is denied a full career under the competitive system, he can count on an adequate readjustment pay to ease his reentry into civilian life." (In re Marriage of Kuzmiak, supra, 176 Cal. App.3d 1152, 1157.)
Kuzmiak noted that California courts have analyzed the purpose of termination benefits to determine their community or separate property character, citing Skaden, Wright, and Flockhart. Kuzmiak concluded Congress did not intend separation pay to be compensation for past services, and that under the reasoning of Flockhart and the disability cases the payment was separate property. However, Kuzmiak further found there was a community property interest in the severance pay if the member reenlisted after his discharge, and therefore received a longevity pension after serving 20 years, since, under 10 United States Code section 1174(h)(1), all of the separation pay is deducted from the retired pay. Thus, if the member reenlisted and later received retired pay, the spouse will have an interest in the separation pay the government will withhold from the retirement benefits. Kuzmiak noted: "If a member reenlists after involuntary discharge and subsequently receives a longevity pension after serving 20 years, the purposes of the separation pay have not been fulfilled." (In re Marriage of Kuzmiak, supra, 176 Cal. App.3d 1152, 1159.)
III
(1) The issue here is whether the NFL severance pay is in the Skaden category of deferred compensation for past services, or as Robert asserts, the Flockhart-Wright-Kuzmiak category of present compensation for loss of *547 earnings. The trial court stated: "In the instant case obviously the pay was for services previously rendered. He would be paid one amount if he was there for two years.... I think it was 10,000 for two years and if he remained eight years or more he would receive 100 or 110,000 so obviously the pay that he was to receive was to be based on past services rendered as distinguished from that portion of the collective bargaining agreement which provided for half a month's pay or whatever it is at the termination of employment."
We agree with the trial court's conclusion, but disagree with its reasoning that merely because the severance pay is tied to number of years of employment the pay is obviously for services previously rendered. In Kuzmiak, for example, the military separation pay was based on the number of years served, and yet the pay was found to be separate property. We must evaluate the character of the pay by looking at all relevant circumstances.
IV
The severance pay here contains the following characteristics: (a) it is derived from a contract right; (b) it is based on the number of seasons worked; (c) it must be paid back to the NFL if the player returns to professional football within one year of receipt; (d) it will be paid back to him when he again leaves football, but no additional amount will have accrued for the seasons worked after his return; (e) it is given to the player's stated beneficiary or estate if he dies; (f) it is received in a lump sum after a certain period of time has passed following the player's notification to the club of his intent to permanently retire from professional football.
At a minimum, Robert will receive a lump sum of $100,000 severance pay based on his eight seasons with the NFL. During all eight seasons, he was married and was accruing the right to severance pay. He has earned an absolute right to the payment, which he will receive after he permanently leaves football.
There are no absolute rights to receive severance pay in the Flockhart-Wright-Kuzmiak line of cases or the disability cases.
In each of those cases, the payments are received only if a loss of work is forced upon an employee. None of those cases involve a contractual right to a payment, which arises after a certain number of years of employment and which will definitely be paid in the future.
In contrast, the NFL football player accrues the absolute right to severance pay. He will receive the severance pay even if he will also receive retirement *548 pay. The only requirement for the receipt of the severance pay is that he permanently leave football, voluntarily or involuntarily. If the player returns to professional football within 12 months and has to repay the severance pay, he will receive it back when he permanently retires.[6] The absolute nature of the player's right to the pay is illustrated by the testimony at the trial by the Union CBA negotiator that players have used the benefit as collateral for loans from financial institutions.
Based on these characteristics of the NFL severance pay, we conclude Robert's pay is a form of deferred compensation for services rendered, and thus community property.[7]
V
(2a) At trial, Robert attempted to present the testimony of a Union negotiator that severance pay was designed to assist the player in the transition period after he leaves football.[8] The trial court disallowed the testimony on the basis of the parol evidence rule and irrelevancy.
We agree the testimony should have been admitted. (3) Under the parol evidence rule, "`[t]he test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.'" (Garcia v. Truck Ins. Exchange *549 (1984) 36 Cal.3d 426, 435 [204 Cal. Rptr. 435, 682 P.2d 1100], italics added.)[9] (2b) Here, the trial court failed to evaluate whether the severance pay provisions were reasonably susceptible of being interpreted as designed to assist the player in the transition period after football, merely noting the agreements were not ambiguous. In fact, the provisions are reasonably susceptible of being interpreted as creating payments designed to assist the player during transition, and the testimony was relevant to assist the court in determining whether or not the payments were deferred compensation. However, we find the error harmless because admission of the testimony would not have resulted in a different outcome. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; Textile v. Coleman (1954) 122 Cal. App.2d 756, 760 [265 P.2d 571].)
Assuming the negotiator testimony would have established the severance pay was designed to assist the player in the transition period after he leaves football, this does not necessarily lead to the conclusion the pay was compensation for present loss of earnings rather than deferred compensation, for purposes of characterizing the property under community property law. Even were the pay designed to support the player after leaving football, the objective characteristics of the severance pay (i.e., the player has an absolute right to the pay which accrues during his seasons of employment, regardless of whether or not he is ever involuntarily forced to leave football) establish its character as deferred compensation for services previously rendered. Even retirement pay is designed to provide support to employees after their careers are ended and they are no longer earning money (In re Marriage of Stenquist, supra, 21 Cal.3d 779, 787); yet this factor does not result in a separate property characterization of retirement pay. Retirement benefits are considered community property because they are "not gratuities but deferred consideration for past services rendered" (In re Marriage of Jones (1975) 13 Cal.3d 457, 461 [119 Cal. Rptr. 108, 531 P.2d 420]).[10] In contrast, *550 disability benefits are considered separate property because "[a]lthough longevity of service plays a role, the ... right to disability payments, and the amount of the payments, depend primarily on the existence and extent of the disability." (Id., at p. 462.)
Even though both retirement and disability payments are designed to support employees whose earnings have decreased or ended, they differ in that retirement payments are derived merely from a contractual right earned from previous services, whereas disability payments are derived from the employee's status of being a person who has lost some earning capacity.[11] If the employee is not deemed disabled so as to interfere with some of his ability to work, he has no right to disability payments; whereas an employee earns the absolute right to his retirement benefits merely because he has accrued the right during his employment.
Similarly, even though the NFL severance pay may be generally designed to support players in their transition after football, like retirement pay, it is pay that the player earns the absolute right to receive because of the seasons he has played regardless of whether he experiences any involuntary loss of earnings. Indeed, even if he dies before it is received and never experiences a transition period, his beneficiary or estate receives the pay. We conclude the severance pay is deferred compensation for services previously rendered and thus community property.
The judgment is affirmed.
Kremer, P.J., and Butler, J., concurred.
NOTES
[1] The severance provision states: "Section 1. Amount: Effective November 16, 1982, any player who has earned two (2) or more Credited Seasons under the Bert Bell NFL Player Retirement Plan and leaves the National Football League, will be entitled to receive from the last NFL club to which he was under contract a severance payment in accordance with the following schedule:
"Credited Seasons Last NFL Season Last NFL Season
1982, 1983 or 1984 1985 or 1986
"Two $ 5,000 $ 10,000
"Three 20,000 30,000
"Four 60,000 70,000
"Five 70,000 80,000
"Six 80,000 90,000
"Seven 90,000 100,000
"Eight 100,000 110,000
"Nine 110,000 120,000
"Ten 120,000 130,000
"Eleven 130,000 140,000
"Twelve or more 140,000 150,000
"For the 1982 season only, a player who was on any club's Active, Inactive, Injured Reserve or Physically Unable to Perform list on the dates of a club's first two regular season games will be deemed to have earned a Credited Season for purposes of this Article only and for no other purpose, including pension plan purposes.
"Section 2. Payment: The foregoing severance payment will be paid to the player immediately following the third game of the NFL regular season next following the player's leaving the National Football League or any other professional football league, whichever occurs later. The amount of the severance payment will be prorated among all clubs to which a player was under contract during his NFL career, except in the case of a player who left the NFL prior to September 20, 1982 and returns to a club after the execution of this Agreement, in which case the player will be entitled to only one-half of his accrued severance benefit and the club to which the player returns will be responsible for one-quarter of his accrued severance benefit as well as any full severance benefit earned following his return. A player may not qualify for more than one severance payment under this provision."
[2] The settlement agreement states in pertinent part: "The following interpretation of Article XXIV of the 1982 CBA, the meaning of which is in dispute between the NFL Players Association (`NFLPA') and the NFL Management Council (`NFLMC'), is agreed upon by the NFLPA and the NFLMC in full and complete settlement of the non-injury grievance filed by the NFLPA against the NFLMC on May 13, 1983, as amended on September 20 and 23, 1983, and shall be binding on the NFLPA, the NFLMC, and all NFL clubs and all NFL players who qualify for benefits pursuant to Article XXIV:
"1. Any player eligible for severance pay under Article XXIV of the 1982 CBA who intends to permanently retire from professional football, by reason of injury or otherwise and whether or not under an NFL player contract at the time of retirement, and sends a letter expressing his intention to so retire from professional football to his last NFL club, with copies to the NFLPA and the NFLMC, which letter is postmarked between the date of the first NFL regular season game of one calendar year (e.g., September 4, 1983) and May 15 of the next calendar year (e.g., May 15, 1984) shall be entitled to receive his severance pay on the day following the third game of the next NFL regular season after said May 15 (e.g., September 17, 1984); provided that:
"a. The player has not participated in football playing activities in the NFL or any other professional football league, or signed a contract to participate in the future in said activities in any other professional football league, between the end of the prior NFL season and the date of receipt of his severance pay; and
"b. prior to receipt of his severance pay, the player executes a demand note, in a form agreeable to the NFLPA and NFLMC, providing that in the event he returns to football playing activities in the NFL or in any other professional football league within twelve (12) months from the date of receipt of his severance pay:
"(1) he shall be obligated to return the amount of severance pay to the NFL club which paid it prior to beginning renewed football playing activities;
"(2) he shall have no right to have said severance pay paid back to him until he again satisfies this Settlement Agreement procedure; and
"(3) he shall have no right to accrue any additional severance pay for seasons occurring after his return to football playing activities.
".... .... .... .... .... .... .
"3. In the event a club obligated to pay a player severance pay under Paragraph 1 or 2 of this Settlement Agreement reasonably believes that the player has not, in fact, permanently retired from professional football, that club may withhold payment so long as it telexes or mails written notice of such action to the NFLPA and NFLMC and the player no later than the scheduled date for payment. The player may thereafter submit a grievance to the NFLPA and NFLMC within ten (10) days of receiving such notice. If the Executive Directors of the NFLPA and NFLMC cannot resolve the matter within seven (7) days of receipt of the grievance, the issue of whether or not the player has, in fact, permanently retired from professional football will be submitted for expedited arbitration to a non-injury grievance arbitrator designated for such purpose, which arbitrator shall render a final decision as soon as possible after a hearing on the matter, which may be a bench decision if the arbitrator so desires....
".... .... .... .... .... .... .
"6. In the event a player eligible for severance pay under Article XXIV of the 1982 CBA dies, the player's stated beneficiary or, in the absence of a stated beneficiary, the player's estate shall be entitled to receive his severance pay on the day following the third game of the NFL regular season following his death or on the April 15 following his death, whichever occurs first.
"7. Any dispute involving this Settlement Agreement shall be resolved under Article VII of the 1982 CBA, the non-injury grievance procedure, as modified herein." The omitted paragraphs of the agreement are essentially the same as paragraph one, differing only as to the date of receipt of the severance payment based on the date of notification of retirement.
[3] The CBA refers to the "Bert Bell NFL Player Retirement Plan and Trust Agreement," which is not included in the record on appeal. The parties agreed to transfer the NFL retirement benefit to Robert as part of the division of community property. The termination pay provision states: "Section 1. Payment: Effective after the execution of this Agreement, any player who has completed the season in which his fourth year or more of Credited Service under the Bert Bell NFL Player Retirement Plan has been earned, and is released from the Active List, Inactive List or Injured Reserve List of his club after the commencement of the regular season schedule, but prior to the Thursday before the eighth regular season game, is entitled to claim and receive, after the end of the regular season schedule, termination pay in an amount equal to the unpaid balance of the initial 50% of his salary, exclusive of deferred compensation, but not less than an amount equal to one week's salary, up to a maximum of $6,000; provided, however, that (a) the player will not be entitled to such termination pay if he has signed a contract with another club for that same season; and (b) a player will not be entitled to such termination pay more than once during his playing career in the NFL.
"Section 2. One Week: Any player who otherwise qualifies for termination pay under Section 1 above, but is released during the regular season after the time he would be entitled to the unpaid balance of the initial 50% of his salary, will receive termination pay in an amount equal to one week's salary, up to a maximum of $6,000." Apparently Robert was not eligible for termination pay since he was not released from the NFL during a season.
[4] In Robert's brief to the trial court, he stated he could receive the $100,000 in April 1985, if he does not return to professional football and applies for the payment by the first game of the 1984-1985 season.
[5] The terminated agent could not sell competitive insurance coverages to policyholders credited to his account, or engage in the insurance business within 25 miles of his principal place of business at the date of termination, for 1 year following termination. (In re Marriage of Skaden, supra, 19 Cal.3d 679, 684, fn. 4.)
[6] The settlement agreement is silent as to whether the player can again accrue severance pay if he returns to football after 12 months have passed from the date of receipt of his severance pay. The CBA states: "A player may not qualify for more than one severance payment under this provision." In any event, the player has the absolute right to the receipt of severance pay at least once in his career.
[7] We note the spouse does not receive a windfall from obtaining her share of the severance pay after marital separation, even though if the player had continued playing football, she would not have had any community interest in money after marital separation. The player never loses his accrued right to severance pay, and will receive it when he permanently leaves football even if he continues playing football after marital separation. Thus, if the player continues playing after marital separation, he at most delays, but does not defeat, the spouse's receipt of her share of the severance pay.
[8] Robert made offers of proof the negotiator would have testified the purpose of the severance pay provision was to provide compensation for lost earnings after the player leaves the NFL, not to provide compensation for the time the player was a member of the NFL team; the amount of severance pay was pegged to the number of years played since the longer the player was in the NFL, the harder the transition to another career; the Union does not have a placement service to assist with the transition; players are increasingly required to spend a substantial amount of their off-season time performing services for the club, thus not able to develop other careers; retirement benefits are not designed to assist in the transition since they are paid many years after leaving the NFL; the severance pay has never been referred to nor intended as a bonus for work previously performed.
[9] As noted in Garcia v. Truck Ins. Exchange, supra, 36 Cal.3d 426, 435, footnote 3, prior to the 1978 amendment of Code of Civil Procedure section 1856, California authority established the parol evidence rule did not apply to controversies in which a stranger to the contract was a party, such as this case. Garcia notes Witkin's suggestion that the 1978 amendment (which deletes language limiting the rule to disputes between contracting parties) changes the rule and applies the parol evidence rule even to actions involving third parties (Witkin, Cal. Evidence (1982 supp.) § 747, p. 309), but points out there is no judicial authority as to the effect of the amendment. Garcia did not resolve the issue, since the evidence was admissible in any event, which, as discussed below, is the same situation here.
[10] Jones was disapproved in In re Marriage of Stenquist, supra, 21 Cal.3d 779, 789, footnote 11, to the extent its language is inconsistent with Stenquist's holding that only the portion of a disability pension which is in excess of what the employee would have received as retirement pay if not disabled is separate property, and disapproved in In re Marriage of Brown (1976) 15 Cal.3d 838, 851 [126 Cal. Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164], to the extent its language is contrary to Brown's ruling that nonvested pension rights can constitute community property.
[11] In addition to compensating an employee for loss of earning capacity, disability payments are also to compensate for personal suffering caused by the disability. (Stenquist, supra, 21 Cal.3d 779, 787.) Workers' compensation benefits, however, which do not compensate for personal suffering, are nevertheless considered separate property when received after separation. (In re Marriage of McDonald (1975) 52 Cal. App.3d 509, 512-513 [125 Cal. Rptr. 160].)
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510 U.S. 1121
Drewv.Internal Revenue Service.
No. 93-6853.
Supreme Court of United States.
February 22, 1994.
1
Appeal from the C. A. 5th Cir.
2
Certiorari denied.
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62 F.3d 930
UNITED STATES of America, Plaintiff-Appellee,v.Rolando ARAUJO, Sr., and Antonio Araujo, Defendants-Appellants.
Nos. 94-1873, 94-1906.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 19, 1995.Decided Aug. 8, 1995.
Barry Rand Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, Diane MacArthur (argued), Office of the U.S. Atty., Chicago, IL, for U.S.
Marc W. Martin, Joseph R. Lopez (argued), Genson, Steinback, Gillespie & Martin, Chicago, IL, for Rolando Araujo.
Joseph R. Lopez (argued), Chicago, IL, for Antonio Araujo.
Before RIPPLE, MANION, and ROVNER, Circuit Judges.
ILANA DIAMOND ROVNER, Circuit Judge.
1
An eleven-member jury convicted Rolando Araujo, Sr. and Antonio Araujo of attempting to possess, with the intent to distribute, four kilograms of cocaine. Because we conclude that the district court abused its discretion in dismissing the twelfth juror, see Fed.R.Crim.P. 23(b), we reverse and remand for a new trial.
I.
2
A grand jury on September 14, 1993 charged Araujo, Sr. and his son Araujo with attempting to purchase, with the intent of distributing, four kilograms of cocaine from an undercover agent, in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2. Because our inquiry focuses on the district court's decision to proceed with an eleven-member jury, we shall dispense with the facts underlying the charge.
3
Trial commenced on January 6, 1994. The presentation of evidence and argument lasted five days, and a jury of twelve began deliberating late in the morning of Thursday, January 13. The jury deliberated for the remainder of that day and for the entirety of the following day, periodically posing questions to the court and requesting transcripts from portions of the trial. No verdict had been reached by the end of the day on Friday, and the jurors were sent home for a three-day weekend. (Monday, January 17, 1994 marked the observance of Martin Luther King, Jr. Day.)
4
The jury reported for duty on Tuesday, January 18 absent one member. At 10:00 a.m., the court informed the parties that the missing juror (whom the court did not identify) had telephoned to explain that she was unable to make it to the courthouse that day due to difficulties associated with the weather. Chicago was in the midst of a severe cold snap, and the temperature that day was twenty degrees below zero; as the court observed, it was "as cold as it has been in this area in many a year...." Tr. 760. The juror did express hope that she would be present the following day. The government recommended waiting a day to see if the absent juror would return, although it acknowledged that the unusual weather supplied the court with "just cause" to dismiss her and to proceed with eleven jurors pursuant to Federal Rule of Criminal Procedure 23(b). Faced with defense objections to proceeding with only eleven jurors, the court opted to wait a day and excused the jury until 9:30 the following morning.
5
On Wednesday, the juror who had been absent on Tuesday returned but the jury was again one shy of twelve. At approximately 10:00 a.m., the court informed the parties that the newly absent juror, a Mr. Lyles, had telephoned and was having problems with his automobile. Tr. 777. After taking a short recess in order to obtain further details, the court advised the parties that Mr. Lyles had telephoned a second time to explain that he was "stranded on the side of the road" and was not able to leave his car. Tr. 778. The court believed it "unlikely" that Mr. Lyles would be able to make it to the courthouse. Id. When the court solicited the parties' views as to the next step, the government again suggested that just cause existed to dismiss the missing juror and to permit the remaining eleven to deliberate. Id. Both defendants reiterated their objection to proceeding with less than twelve jurors (Tr. 778-79); Araujo's counsel asked that "we wait and allow this individual some time" (Tr. 779).
6
The court decided that just cause existed to dismiss Mr. Lyles and to proceed with a jury of eleven:
7
Well, certainly I dislike altering the composition of the jury.
8
My problem is, as you know, that this jury was sent home Friday and here it is Wednesday and it has not been deliberating. I am fearful that the delay is itself a problem for the jury. Memories, of course, as you all know, do not necessarily improve but also I sent the other 11 folks home yesterday because of the weather waiting for a juror. That juror fortunately arrived.
9
I, under the circumstances, believe that we should go forward and we should not delay another day or lose another day with this jury so I am going to exercise my discretion because I think good cause exists. We have had two of the worst days of weather in the history of the city, and it is my concern that were I to delay again that I might be faced with even further problems.
10
So I am going to remove [Mr. Lyles] from this jury and proceed with a jury of 11.
11
Tr. 779-80. The eleven jurors present were then instructed to resume deliberations.
12
Later that same day, the jury found Araujo, Sr. guilty. After receiving a response from the court to a question concerning Araujo's defense of coercion, the jury on the following day found Araujo guilty. The district court subsequently sentenced Araujo, Sr. and Araujo to 135 months and 97 months in prison, respectively. Both defendants appeal, contending that the decision to dismiss the twelfth juror and to permit the remaining eleven to deliberate to a verdict was improper.
II.
13
Although the Constitution itself does not guarantee to the defendant in a criminal trial a jury of twelve, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), Federal Rule of Criminal Procedure 23 incorporates that venerable common law tradition as a requirement. Until relatively recently, the rule authorized juries of less than twelve only upon stipulation of both the government and the defendant. As amended in 1983, however, the rule provides:
14
Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.
15
Fed.R.Crim.P. 23(b). The advisory committee's note reveals the rationale for the change:
16
The amendment to subdivision (b) addresses a situation which does not occur with great frequency but which, when it does occur, may present a most difficult issue concerning the fair and efficient administration of justice. This situation is that in which, after the jury has retired to consider its verdict and any alternate jurors have been discharged, one of the jurors is seriously incapacitated or otherwise found to be unable to continue service upon the jury. The problem is acute when the trial has been a lengthy one and consequently the remedy of mistrial would necessitate a second expenditure of substantial prosecution, defense and court resources. See, e.g., United States v. Meinster, 484 F.Supp. 442 (S.D.Fla.1980), aff'd sub nom. United States v. Phillips, 664 F.2d 971 (5th Cir.1981) (juror had heart attack during deliberations after "well over four months of trial"); United States v. Barone, 83 F.R.D. 565 (S.D.Fla.1979) (juror removed upon recommendation of psychiatrist during deliberations after "approximately six months of trial").
17
It is the judgment of the Committee that when a juror is lost during deliberations, especially in circumstances like those in Barone and Meinster, it is essential that there be available a course of action other than mistrial....
18
. . . . .
19
The amendment provides that if a juror is excused after the jury has retired to consider its verdict, it is within the discretion of the court whether to declare a mistrial or to permit deliberations to continue with 11 jurors. If the trial has been brief and not much would be lost by retrial, the court might well conclude that the unusual step of allowing a jury verdict by less than 12 jurors absent stipulation should not be taken. On the other hand, if the trial has been protracted the court is much more likely to opt for continuing with the remaining 11 jurors.
20
Rule 23 advisory committee's note. The appellate courts that have considered the question have found the amended rule constitutional. See United States v. Ahmad, 974 F.2d 1163, 1164 (9th Cir.1992); United States v. Gabay, 923 F.2d 1536, 1543 (11th Cir.1991); United States v. Smith, 789 F.2d 196, 205 (3d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986); United States v. Stratton, 779 F.2d 820, 831, 834-35 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726, and cert. denied sub nom. Parness v. United States, 477 U.S. 906, 106 S.Ct. 3277, 91 L.Ed.2d 567 (1986). The Araujos concede the constitutionality of Rule 23; they argue only that the trial court improperly exercised its authority to dismiss a juror and to allow the remaining eleven to render a verdict.
21
When a district court decides, without the agreement of the parties, to permit an eleven-member jury to deliberate to a verdict, two distinct questions are presented: first, whether the court had just cause to excuse the twelfth juror, and second, whether the district court was correct in allowing the bobtailed jury to continue rather than declaring a mistrial. United States v. Glover, 21 F.3d 133, 135 (6th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 360, 130 L.Ed.2d 314 (1994). We review the district court's assessment as to each of these questions for abuse of discretion. United States v. Patterson, 23 F.3d 1239, 1252 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 527, 130 L.Ed.2d 431 (1994); Glover, 21 F.3d at 135.
22
Neither Rule 23 nor the advisory committee's note supplies a definition of "just cause"; consequently, courts have given that term meaning on a case by case basis. Typically, courts have found just cause to dismiss a juror once deliberations are under way when the juror becomes seriously incapacitated and "waiting for the juror will result in a substantial or potentially uncertain delay." United States v. Dischner, 974 F.2d 1502, 1513 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993). See also United States v. McFarland, 34 F.3d 1508, 1512 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2257, 132 L.Ed.2d 264 (1995); Gabay, 923 F.2d at 1543 (quoting Notes of the Committee on the Judiciary, Senate Report No. 95-354, 1977 U.S.Code Cong. & Admin.News 527); but see United States v. Reese, 33 F.3d 166, 173 (2d Cir.1994) (affirming dismissal of juror for previously scheduled business trip), cert. denied, --- U.S. ----, 115 S.Ct. 756, 130 L.Ed.2d 655 (1995); Stratton, 779 F.2d at 832 (affirming dismissal of juror for religious observance). Before dismissing a juror pursuant to Rule 23(b), the district court must render a finding that it is necessary to do so for just cause; and if the record does not already make clear the precise nature or likely duration of the juror's inability to serve, the court bears an affirmative duty to inquire further into those circumstances. United States v. Patterson, 26 F.3d 1127, 1129 (D.C.Cir.1994); cf. United States v. Wilson, 894 F.2d 1245, 1250-51 (11th Cir.) (court was not obligated to contact absent juror or her physician where juror's history of illness and her recent telephone call to court clerk sufficiently established her incapacity), cert. denied sub nom. Levine v. United States, 497 U.S. 1029, 110 S.Ct. 3284, 111 L.Ed.2d 792 (1990); United States v. Acker, 52 F.3d 509, 515-16 (4th Cir.1995) (no abuse of discretion in dismissing injured juror where court did not know where she was seeking medical treatment and thus was unable to contact her).
23
The rule and the committee's note also offer little guidance as to the decision, once a juror has been excused for just cause, whether to grant a mistrial or proceed with the remaining eleven jurors. It is clear from the note that the advisory committee believed the option of an eleven-member jury to be most appropriate when the trial has been lengthy and re-trial would thus be particularly burdensome. Yet, "Rule 23(b) does not limit its application to lengthy or complex cases." United States v. O'Brien, 898 F.2d 983, 986 (5th Cir.1990); see also Patterson, 23 F.3d at 1252 n. 17; United States v. Armijo, 834 F.2d 132, 135 (8th Cir.1987), cert. denied, 485 U.S. 990, 108 S.Ct. 1297, 99 L.Ed.2d 507 and cert. denied sub nom. Kistner v. United States, 485 U.S. 991, 108 S.Ct. 1297, 99 L.Ed.2d 507 (1988). Indeed, the committee merely observes that when the trial has been brief, the court "might well" opt to declare a mistrial rather than accept a verdict from eleven jurors. Rule 23 advisory committee's note (emphasis supplied). Still, the committee does describe the decision to proceed with an eleven-member jury as an "unusual step" (id.), a choice of words suggesting that it is not one to be undertaken lightly. Armijo, 834 F.2d at 135.
24
Recognizing the considerable latitude that Rule 23 bestows on a district court, we nonetheless conclude that the court abused its discretion in dismissing the juror here. The few facts that are known to us simply do not reveal how long Mr. Lyles would be unable to participate in the deliberations; thus, the record lacks the requisite support for the district court's determination that he should be dismissed for just cause. In this respect, the District of Columbia Circuit's decision in Patterson and the Ninth Circuit's decision in United States v. Tabacca, 924 F.2d 906 (9th Cir.1991), are illuminating. In Patterson, following one day of deliberations, a sixty-eight year-old-juror telephoned the court clerk at 8:15 a.m. to explain that she was experiencing chest pains and that her doctor wished to see her immediately. The court granted permission for the juror to visit her doctor and asked her to report back afterward. At 11:10 a.m., the court, not having heard anything further from the absent juror, sought the defendant's consent to proceed with a jury of eleven. The defense objected and urged the court to await further news of the juror's condition. The court declined and decided to dismiss the missing juror and allow the remaining eleven to proceed with deliberations. As to the likelihood that the absent juror might be able to resume her service, the court commented:
25
The fact that a 68-year-old woman reports that she's having severe chest pains, has gone to the doctor, and has been gone two and a half hours now suggests to me that this is not a transient thing. It is unlikely that delay later in the day would cure the situation.
26
26 F.3d at 1128. The court of appeals reversed, finding insufficient evidence of just cause to excuse the juror:
27
[T]he judge below made no attempt to learn the precise circumstances or likely duration of the twelfth juror's absence. Instead, less than three hours after authorizing the juror's doctor visit, he invoked rule 23(b) to excuse her from duty and permit deliberation by an eleven-member jury. His expressed confidence in the remaining jurors' ability to assess the evidence and reach a verdict did not relieve him of his duty under rule 23(b) to find just cause making it necessary to excuse the absent juror. Further, the juror's age and the nature of her complaint do not by themselves support the inference that she would be unable to complete her service. She might have been able to return to court in short order or she might have had a serious medical problem precluding further participation in the trial. We have no way of knowing because the trial judge made no effort to find out.
28
Id. (following United States v. Essex, 734 F.2d 832, 842 (D.C.Cir.1984)).
29
In Tabacca, the Ninth Circuit similarly found no support for the district court's decision to dismiss a missing juror for just cause. As in the case before us, jury deliberations had been interrupted by a three-day weekend. On the Tuesday morning following Labor Day, a juror telephoned the court to report that his wife had mistakenly taken his car keys and that he had no way to reach the courthouse. Over the defendant's objection, the court dismissed the missing juror and accepted a verdict from the remaining eleven. The court of appeals reversed, noting that the twelfth juror was "certain to be available the next day" and that a one-day delay, even following a three-day weekend, was not an unduly burdensome alternative. 924 F.2d at 915.
30
Patterson and Tabacca exemplify the district court's duty under Rule 23(b) to ascertain the likely duration of a missing juror's absence before dismissing him or her. That obligation is consistent with the rule's reference to dismissal when the court finds it "necessary" to dismiss a juror for just cause (a term that cabins the district court's discretion somewhat) and with the advisory committee's expectation that this necessity would present itself when "one of the jurors is seriously incapacitated or otherwise found to be unable to continue service upon the jury." Rule 23, advisory committee's note. When the record is unclear as to the juror's inability to serve, and when the facts that are known leave open the possibility that the juror might have been able to resume her service after a reasonably brief delay, just cause for dismissal most likely is lacking. So, here, the facts known to us do not confirm that it was indeed necessary to dismiss Mr. Lyles for just cause (or, more precisely, that the district court reasonably could have thought it to be necessary). The temperature in Chicago was unusually low, and although the record could be more definite on this point, we assume that it was the cold that left Mr. Lyles stranded on the side of the road.1 Naturally, he did not wish to abandon his car, and given the likelihood that other motorists were experiencing similar problems, it may have been some time before he could summon help and continue on his way to the courthouse. Yet, as the court was in Patterson, we are left to speculate on just how soon Mr. Lyles might have been able to rejoin the other jurors. The record reveals that Mr. Lyles lived in Chicago (Tr. 777) and therefore was not required to travel a great distance to reach the courthouse, and it is possible that he might have reported later that same day. Thus, just as in Tabacca, we have no reason to believe his absence would have continued beyond one day. Even if his car had remained inoperable, the record does not permit the inference that no alternative means of reaching the courthouse were available to him.
31
Central to the court's decision, of course, were the fact of another juror's absence on the previous day, the possibility that the unusually severe cold might result in other absences, and the increasingly lengthy break in the jury's deliberations. To the extent that the just cause determination turns on the individual juror's ability to serve (see Rule 23, advisory committee's note), these considerations would seem irrelevant. The district court nonetheless found them material to an assessment of the likelihood that the jury as a whole would ultimately be able to render a verdict. In other words, taking into account the weather, repeated juror absences, and the interruption in the jury's deliberations, the district court deemed it necessary to resume deliberations immediately, lest other problems surface and cause additional, memory-dulling delays. Thus, Mr. Lyles was excused not so much for circumstances that rendered him unfit or unable to resume service on the jury, but for those that had affected or might affect all of the jurors. This rationale represents somewhat of a departure from the case law, which traditionally has focused on the excused juror alone. Perhaps it is merely exemplary of the flexibility needed to handle the multitude of unforeseen circumstances that may confront a district court during deliberations (see, e.g., Reese, 33 F.3d at 173; Stratton, 779 F.2d at 832), although it is an approach that raises some thorny questions.2 We need not rule on the validity of looking beyond the excused juror's capacity to serve, however, as we do not think the more global concerns that the district court cited here were borne out on the record.
32
The frigid temperatures no doubt increased the risk that individual jurors might be delayed in reaching the courthouse or be unable to attend altogether on a given day--as the two absences in this case demonstrate. But neither adverse weather nor transportation difficulties are themselves extraordinary, and in this case the consequences were relatively modest: one juror was absent for a day and another would have been absent no longer than that, so far as the record reveals. The district court appears to have been most troubled about the cumulative delay caused by the absences, and we agree that the jury's collective memory was not likely to have been sharpened by the prolonged break in its deliberations. See Stratton, 779 F.2d at 832. On the other hand, the trial itself had been short, the evidence straightforward (eleven witnesses testified and the exhibits were relatively few in number), and there is nothing in the record suggesting that the jury would have been unduly hampered by whatever further delay the wait for Mr. Lyles would have required. See Tabacca, 924 F.2d at 915 (noting that after a short trial, an additional day's delay was "unlikely to induce dulled memories on the part of the jurors, even if they had taken a three-day weekend"). Nor, ultimately, can we do any more than guess about the prospect of additional delays. There is nothing in the record suggesting that other jurors were experiencing difficulty reaching the courthouse or, for that matter, that the cold snap was expected to continue for the remainder of the week.3 The district judge understandably made a difficult, on-the-spot judgment in the midst of events the outcome of which he could not predict. See Stratton, 779 F.2d at 832. Unfortunately, the record simply does not include enough concrete information to support the court's determination that it was necessary to dismiss Mr. Lyles for just cause.
33
In light of our conclusion that the district court erred in dismissing the twelfth juror, we need not consider whether the court abused its discretion in opting to permit the remaining eleven jurors to deliberate to a verdict rather than declaring a mistrial. We merely offer this observation: proceeding with a jury of eleven over the defendant's objection is truly an "unusual step," (Rule 23 advisory committee's note), and the equities must be sufficiently compelling to support that decision. Cases from our sister circuits have affirmed lower court decisions to proceed with juries of eleven even when the trials have been relatively short, citing factors such as the number of witnesses and exhibits presented as evidence that retrying the case would be burdensome. See Glover, 21 F.3d at 136 (twenty witnesses and numerous exhibits); United States v. Egbuniwe, 969 F.2d 757, 763 (9th Cir.1992) (twenty-five witnesses, over 120 exhibits, 1800 pages of testimony); cf. Armijo, 834 F.2d at 135 (affirming with "reservation" district court's decision to proceed with eleven jurors after five-day trial involving 800 pages of testimony and argument; noting this was "a very close case").4 We need not decide now whether we would follow these cases, although we think it safe to say that if they do not actually exceed the discretion afforded the court by Rule 23, they certainly lie at the outermost boundaries of that discretion. The option of a retrial will always involve a significant expenditure of money, time, and judicial resources, no matter how brief the trial. In our view, the burden must be of a degree or a kind that is out of the ordinary to justify the decision to deprive the defendant of a jury of twelve.
III.
34
Because the district court lacked just cause to excuse the twelfth juror pursuant to Rule 23(b), we reverse the defendants' convictions and remand for a new trial.
35
REVERSED AND REMANDED.
1
The district court, in announcing Mr. Lyles' absence, observed that "[a]gain we are plagued with weather problems...." Tr. 777. The record does not otherwise indicate that Mr. Lyles' car troubles were due to the weather
2
Suppose, for example, that a juror suffered a run-of-the-mill automobile breakdown but had no doubt that she could resume service on the following day. Could the court dismiss her for just cause because it expected another juror to begin a previously scheduled vacation two days hence? Or suppose that a jury had experienced repeated breaks in its deliberations due to chronic power failures in the courthouse. Could a juror who must be absent one day due to child care difficulties be excused because the court is fearful that the jurors' memories are becoming too dim?
3
On the day of the first juror's absence, the prosecutor voiced her understanding from listening to the weather forecast that temperatures were expected to rise as the week progressed. Tr. 761. On the day of Mr. Lyles' absence, it appears from the remarks of counsel and the court that the temperature was somewhat warmer although still unusually cold. Tr. 779
4
See also Patterson, 23 F.3d at 1252 n. 17 (finding, without extended discussion, no error, "plain or otherwise," in district court's decision to proceed with eleven jurors after two-and-one-half-day trial rather than declare mistrial; issue was raised for first time on appeal)
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365 F.2d 431
Grady B. BURROUGHS, also known as Sam Grady Biggs, Appellant,v.UNITED STATES of America, Appellee.
No. 8387.
United States Court of Appeals Tenth Circuit.
Aug. 31, 1966.
Joe A. Moore, Sapulpa, Okl., for appellant.
Bruce Green, Muskogee, Okl. (Paul E. Harper, Muskogee, Okl., on brief), for appellee.
Before MURRAH, Chief Judge, and SETH and HICKEY, Circuit Judges.
MURRAH, Chief Judge.
1
Appellant appeals from a conviction and sentence on a five count indictment, each count of which separately charged that the appellant knowingly and willfully uttered and published a false statement or document with the intent to influence the Federal Housing Administration in violation of 18 U.S.C. 1010.
2
Two points are made on appeal: (1) The trial court erred in instructing the jury that evidence of appellant's flight was corroborative of guilt of the offense charged after having admitted such evidence for a more limited purpose; and (2) The court improperly influenced the jury to return a verdict after it had indicated it was unable to do so.
3
The evidence bearing on the question of flight is vague and sketchy, but as we understand, it is to the effect that after appellant was indicted in September, 1962, he apparently forfeited bail, became a fugitive and was later surrendered by his attorney and bondsman in April, 1963. He apparently thereafter again became a fugitive, a warrant was issued, and he was again apprehended in June, 1964. When the testimony tending to show these facts was objected to on the grounds that it did not 'go to the guilt or innocence of the defendant for this particular crime', the court ruled the evidence admissible to 'show trend and conduct * * * and not on any basis whatsoever with reference to the guilt or the innocence of the defendant on the charges here before you.' Whereupon, defense counsel stated, 'I think the Court has answered it. I will withdraw the (objection). The Court has cleared it up very fine.' In the court's instructions the jury was told that 'the evidence of flight is a legitimate ground for the inference of guilt, and if you find from the evidence beyond a reasonable doubt that the defendant did flee, you should consider such evidence along with other evidence in the case in determining the defendant's guilt or innocence.' At the conclusion of the court's instructions, defense counsel objected to 'the instruction with reference to the evidence of the flight of the defendant.'
4
We are not sure of the meaning of the court's first ruling on the evidence of flight as showing 'trend and conduct'. Unless the evidence bore some relevancy to guilt or innocence, we fail to discern any relevancy at all. But, the ruling of the court seemed to satisfy counsel, and no point of it is made on appeal. Even so, there was evidence from which the jury could find beyond a reasonable doubt that appellant did forfeit bail and leave the jurisdiction of the court after the charges against him. And, while the 'probative value' of evidence of flight has been consistently doubted, i.e. see Wong Sun v. United States, 371 U.S. 471, 483, footnote 10, 83 S.Ct. 407, 9 L.Ed.2d 441; Miller v. United States, 116 U.S.App.D.C. 45, 320 F.2d 767, it has nevertheless been consistently held admissible as a 'circumstance proper to be laid before the jury as having a tendency to prove his guilt.' Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528, and see Rivers v. United States, 9 Cir., 270 F.2d 435; Thompson v. Harry C. Erb Co., 240 F.2d 452; Rosetti v. United States, 9 Cir., 315 F.2d 86; Wigmore on Evidence, 3rd Ed., 276, p. 115; and see State v. Neal, 231 La. 1048, 93 So.2d 554, citing Wharton's Criminal Evidence, Vol. 1, p. 414, 205 (12th Ed. 1955).
5
Appellant complains of the failure of the court to define flight, i.e. see Wilson v. State, 96 Okl.Cr. 137, 250 P.2d 72, but no definition was requested. Appellant's objection to the instruction did not distinctly state the grounds therefor, hence was insufficient to bring to the court's attention the inconsistency in its ruling. But, in any event, the court had a perfect right to change its mind in the course of the trial, and since the instruction was a correct statement of the law, no error can come of it.
6
The contention that the jury was coerced to return its verdict is presented on these record facts. After the case was finally submitted to jury at 5:00 o'clock in the afternoon, but before retiring, the court told them that 'we have been here quite a while but I should like for you to organize and see if you can't reach a verdict within an hour. If you can't, and on request of the jurors, we can do something about it, but let's work for about another hour, will you please?' One hour twenty minutes later the jury returned to the court room, apparently on call of the judge. Addressing the foreman, the court stated, 'Now the court does not want to know numerically how you stand at all and it would be improper for you to tell me * * * but up to now I take it you have not been able to arrive at a verdict?' The foreman answered 'That's right.' The court again addressing the foreman stated, 'I might ask, in your judgment as foreman of the jury, are you of the opinion that you might if you had a little more time to consider it?' The forman replied, 'Well, for the last three ballots we have taken, we have been exactly the same.' The court then proceeded to give the so-called Allen instruction:
7
'Well, it's now 6:25. This is an important case, of course, for both sides and both sides have gone to a considerable amount of expense to bring this evidence to you, and as I said before, it is the hope in the administration of justice that we can arrive at a verdict in every case. 'This jury is just as well qualified, just as intelligent, just as well equipped, to arrive at a verdict as another jury would be, and as I have said, if you were to hear the same evidence again or some other jury would be no better equipped to arrive at a verdict than this jury. 'I believe that if you worked a little harder and a little longer that you might see the views, the minority might see the views of the majority I do not know how you stand. I have no interest in that at all. What the Court is interested in and what the public is interested in is the administration of justice in arriving at a verdict which is fair and just. 'I am going to ask you to go back and work a little longer, we will say until 7:00 o'clock. If you can't by that time, it would be the opinion of the court because of the importance of the case, because of the expense incurred, because of the expense yet to be incurred should you not get together, to probably recess the matter until in the morning and then let you go back to deliberations. 'You may not be able to arrive at a verdict, but it's important for both sides for you to arrive at a verdict if you can. 'We are here, you are here as jurors to do your duty as you see it and to settle these questions as best you can.'
8
The 'Allen' instruction, also sometimes called the 'dynamite' or 'third-degree' instruction, has been roundly criticized as an unwarranted invasion of the fact finding province of the jury. See Judge Brown dissenting in Huffman v. United States, 5 Cir., 297 F.2d 754; Judge Wisdom dissenting in Andrews v. United States, 5 Cir., 309 F.2d 127, and speaking for the court in Green v. United States, 5 Cir., 309 F.2d 852.
9
We have repeatedly and only recently cautiously approved an instruction of this kind even to an apparently deadlocked jury, provided each juror is made to understand that he or she is free to follow his or her conscientiously held convictions, i.e. see Elbel v. United States, May Term 1966, 10 Cir., 364 F.2d 127; And see cases collected in Anno., 100 A.L.R.2d 177. In Elbel we took occasion to re-emphasize the traditional duty of the common law judge to guide and direct the jury toward a fair and impartial judgment in the form of a collective verdict. And see Tyler v. Dowell, 10 Cir., 274 F.2d 890, 897. This, of course, means that the court may with propriety tell the jury that if they have not arrived at a verdict by a stated time, they should return to the court room for further instructions concerning whether they should deliberate further or be excused until the next day either in custody of the bailiff or under the admonitions of the court. It is also the proper function of the judge to admonish the jury that they should deliberate together in an atmosphere of mutual deference and respect giving due consideration to the views of the others in the knowledge that in the end their verdict must reflect the composite views of all. An admonitory statement in this tenor given before the jury retires to deliberate would be more appropriately influential and far less vulnerable to the charge of coercion.
10
But, in any event, it is one thing to recall the jury to beseech them to reason together, and it is quite another to entreat them to strive toward a verdict by a certain time. When these admonitions are considered in their context, they are subject to the clear inference that the judge was unduly anxious to conclude the lawsuit, and we think it entirely reasonable to infer that the jury was aware of his anxiety. This type of verdict-urging on the part of the court tends to undermine the proper function of the common law jury system as contemplated by the Seventh Amendment. We must guard against any such subtle inroads. We think the charge in this case went beyond the permissible limits of the Allen charge as it has been construed and approved by this court.
11
No objections were taken to the supplemental statements until after the jury returned its verdict of guilty and, of course, failure to timely object is susceptible to the imputation that the defendant speculated on the verdict and then objected when it went against him. But, since as we have said the statements go to the heart of the judge-jury relationship as it affects the fundamental right to a fair and impartial trial, we must notice them. This compels us to reverse the judgment.
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J-S68038-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
NATIONSTAR MORTGAGE, LLC, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARK JOSEPH ELSESSER, :
:
Appellant : No. 608 MDA 2017
Appeal from the Order Entered March 21, 2017
in the Court of Common Pleas of Berks County,
Civil Division, at No(s): 2013-15154
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 30, 2017
Mark Joseph Elsesser appeals from the March 21, 2017 order that
denied his petition to set aside sheriff’s sale and vacate void judgment in
this mortgage foreclosure action. We affirm the order. Further, finding
Elsesser’s appeal to be dilatory, obdurate, and wholly frivolous, we remand
for a hearing to determine the amount of costs and counsel fees incurred by
Appellee Nationstar Mortgage, LLC (Nationstar) in litigating this appeal.
In December 2006, Elsesser executed a promissory note and mortgage
in exchange for a loan of $173,000 from Countrywide Home Loans, Inc.
Elsesser stopped making his monthly mortgage payments in March 2012. In
June 2013, then-holder of the note Nationstar filed a complaint in
foreclosure.
*Retired Senior Judge assigned to the Superior Court.
J-S68038-17
Nationstar eventually obtained summary judgment against Elsesser by
order of July 7, 2014. In his first appeal to this Court, Elsesser challenged,
inter alia, “the validity of the chain of assignments of the Mortgage and
Note….” Nationstar Mortgage, LLC v. Elsesser, 120 A.3d 1054 (Pa.
Super. 2015) (unpublished memorandum at 7). Upon examination of the
record, this Court determined that, because Nationstar possessed the
original note, which was a negotiable instrument, Nationstar had standing to
foreclose. Id. (unpublished memorandum at 9). Therefore, “Elsesser’s
argument as to the chain of ownership of the loan fail[ed] as a matter of
law.” Id.
Elsesser next filed in the trial court a petition to strike judgment,
“alleging that the judgment was void and unenforceable because the process
of securitization of the Note stripped Nationstar of any standing.”
Nationstar Mortgage, LLC, v. Elsesser, 158 A.3d 178 (Pa. Super. 2016)
(unpublished memorandum at 4). Elsesser timely appealed the order that
denied his petition, and the case was stayed pending the appeal. This Court
first noted that the law of the case doctrine militated against addressing the
merits of the issue, because it is one that Elsesser could have raised in his
first appeal, but did not. Id. (unpublished memorandum at 5-7). Further,
this Court held that the “argument that the process of securitization
somehow ‘destroyed’ the Note and it ceased to be a secured asset or
negotiable instrument tied to any collateral or debt obligation is nonsense.”
-2-
J-S68038-17
Id. at 8. Therefore, this Court affirmed the order denying the petition to
strike.
After the trial court granted Nationstar’s motion to lift the stay,
Nationstar bought the property at a sheriff’s sale on January 6, 2017.
Elsesser filed a petition to set aside the sale and vacate the judgment, which
the trial court denied by order entered March 21, 2017. Elsesser then filed
the instant appeal, and timely complied with the trial court’s order to file a
concise statement of errors complained of on appeal.
Elsesser presents three questions for our review.
(I). Did the trial court err in denying the petition to set aside
sheriff sale where [Elsesser] made a showing of extrinsic
fraud?
(II). Is [Nationstar’s] selectively timed production of two (2)
competing promissory notes in the litigation evidence of
intentional fraud sufficient to set aside the sheriff sale and
void the underlying judgment?
(III). Should equitable relief afford relief from both the judgment
and sale inasmuch as circumstances have arisen making it
inequitable to enforce the judgment and sale?
Elsesser’s Brief at 8 (suggested answers and unnecessary capitalization
omitted).
Elsesser’s issues all relate to the fact that Nationstar attached to its
June 25, 2015 motion to reassess damages a copy of the note that was
made before it was endorsed, whereas the copy of the note attached to
Nationstar’s motion for summary judgment had an endorsement. While he
-3-
J-S68038-17
acknowledges that Nationstar produced the original, endorsed note at a July
17, 2014 hearing, and it was that note that served as the basis of the trial
court’s decision to grant summary judgment to Nationstar, Elsesser now
claims that the existence of different photocopies of the note “calls into
serious question the authenticity” of the note produced at the hearing.
Elsesser’s Brief at 20.
As recognized by the trial court, Elsesser’s argument is nothing more
than another attack on Nationstar’s standing, an issue decided by the trial
court long ago and twice affirmed by this Court. Trial Court Opinion,
5/31/2017, at 4-5. As this Court explained in Elsesser’s last appeal, it is the
law of the case that Nationstar had standing to foreclose against the
mortgaged property as the holder of the note. Elsesser, 158 A.3d 178
(unpublished memorandum at 5-7). Elsesser cannot relitigate the issue now
based upon something of which he was fully aware prior to his last appeal.
Kurns v. Soo Line R.R., 72 A.3d 636, 639 (Pa. Super. 2013) (“An appellant
cannot pursue in a subsequent appeal matters which he or she could have
pursued in a prior appeal.”) (citation and internal quotation marks omitted).
As such, it is patently clear to this Court that this appeal is dilatory,
obdurate, and wholly frivolous.
This is the second frivolous appeal Elsesser has pursued in this matter.
See Elsesser, 158 A.3d 178 (unpublished memorandum at 8) (describing
Elsesser’s argument as “nonsense”). Additionally, two different judges in the
-4-
J-S68038-17
trial court have opined that Elsesser should not be permitted to delay further
in this case. Trial Court Opinion, 5/31/2017, at 5. Accordingly, we hold that
Nationstar is entitled to recover costs of the appeal, including counsel fees,
the amount of which shall be determined by the trial court upon remand.
See Pa.R.A.P. 2744 (“[A]n appellate court may award as further costs
damages as may be just… if it determines that an appeal is frivolous or
taken solely for delay or that the conduct of the participant against whom
costs are to be imposed is dilatory, obdurate or vexatious. The appellate
court may remand the case to the trial court to determine the amount of
damages authorized by this rule.”); Jackson v. Modern Mailers, Inc., 537
A.2d 878, 880 (Pa. Super. 1988) (“Because of the settled nature of the legal
issue presented and because of appellants’ two previous appeals to this
Court regarding the same cause of action, we conclude that the instant
appeal is frivolous and that counsel fees should be awarded.”).
Order affirmed. Case remanded for further proceedings consistent
with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
-5-
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413 F.Supp.2d 8 (2005)
UNITED STATES of America
v.
Adil MURATOSKI
No. 04-CR-179-SM.
United States District Court, D. New Hampshire.
April 8, 2005.
*9 Mark S. Zuckerman, U.S. Attorney's Office, Concord, NH, for Plaintiff.
Jeffrey S. Levin, Federal Defender's Office, Concord, NH, for Defendant.
ORDER
MCAULIFFE, Chief Judge.
Defendant moves to transfer venue in this criminal case to the Northern District of Illinois (Chicago), where he lives and works. For the reasons set forth below, that motion is granted.
Standard of Review
A district court has broad discretionary power to transfer a criminal prosecution to another district "for the convenience of the parties and witnesses and in the interest of justice." Fed.R.Crim.P. 21(b). In exercising that discretion, courts generally consider a number of factors identified by the Supreme Court in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). Those factors include: (1) the location of the defendant; (2) the location of possible witnesses; (3) the location of events likely to be in issue; (4) the location of documents and records likely to be involved; (5) the disruption of defendant's business if the case is not transferred; (6) the expense to the parties; (7) the location of counsel; (8) the relative accessibility of the place of trial; (9) the docket condition of each district or division involved; and (10) any other special considerations relevant to transfer. Id. at 243-44, 84 S.Ct. 769. No one factor is likely to be dispositive, *10 but all should be considered under the circumstances:
It is unlikely that any one of these factors will be present by itself in a particular case. Ordinarily the various factors appear in combination, with some pointing in favor of transfer and others against transfer. It is incumbent on the court in such a case to strike a balance and decide which factors seem to be of greatest importance in that case.
2 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 344 at 275.
Background
This is one of a number of prosecutions brought in the District of New Hampshire for either passport fraud (18 U.S.C. § 1542) or, more recently, false statements made in connection with a passport application (18 U.S.C. § 1001). The trend away from charging passport fraud and toward charging § 1001 violations for substantially the same conduct is traceable to the court of appeals' decision in United States v. Salinas, 373 F.3d 161 (1st Cir.2004). In Salinas the court held venue is improper in this district in passport fraud cases which involve an application that was mailed from out of state to the National Passport Center in Portsmouth, New Hampshire. But, the court also expressed the view that venue would be proper here if the conduct were charged as a false statement offense under § 1001the distinction being that passport fraud is a completed offense "at the moment an applicant makes a knowingly false ,statement in an application with a view toward procuring a passport," Salinas, 373 F.3d at 165 (citing United States v. O'Bryant, 775 F.2d 1528, 1535 (11th Cir.1985)), while § 1001 offenses are generally considered continuing offenses, with the material misrepresentation "continuing into the district in which the effects of the false statement are felt." Salinas, 373 F.3d at 167 (citations omitted).
So, basically, the government avoids the venue problem associated with passport fraud prosecutions by simply reindicting the underlying conduct as a § 1001 violation or, post-Salinas, initially indicting conduct that would be chargeable as passport fraud as a § 1001 violation instead.
Creative charging no doubt serves legitimate purposes, and there are some practical reasons for bringing these cases in New Hampshire. For one, the Passport Center's location here necessarily means that many violations are routinely identified in this district. Relevant documents are generally found here (applications, supporting statements, etc.), as are potential government witnesses. And, local prosecutors entertain a legitimate pragmatic concern that prosecutors in other districts may not be so willing to pursue these cases, given the disparity in case-loads and available resources.
On the other hand, it has become clear to this court that the defendants indicted on these charges often live hundreds of miles away, have no personal contacts at all with this district, are poor or just getting by economically, are supporting families, and must pay substantial sums to travel to and stay in New Hampshire on multiple occasions (e.g., to meet with counsel and to attend arraignment, bail hearings, motions hearings, plea hearings or trial, and possibly a sentencing hearing). Additionally, if witnesses are to be called by a defendant, whether at trial or sentencing, they are more likely to be located near the defendant's home than here, making their appearances in this district difficult and burdensome.
Discussion
Venue in this district is plainly proper, given the continuing nature of the *11 § 1001 offense charged. See 18 U.S.C. § 3237(a). See also Salinas, 373 F.3d at 166-67. Nevertheless, defendant has met his burden of persuading the court that a transfer is warranted.
Considering the Platt factors, it is of course a physical, emotional, and economic hardship for this defendant to face trial in New Hampshire, far from his home in Illinois. See United States v. Aronoff, 463 F.Supp. 454, 457 (S.D.N.Y.1978). Defendants, ordinarily, should be tried where they reside. United States v. Russell, 582 F.Supp. 660, 662 (S.D.N.Y.1984). Besides, it is more than a mere inconvenience for this defendant to face trial in this district, given his financial circumstances (he has been unable to pay his initially retained counsel and is now represented by the Federal Defender). Travel from Illinois is expensive and generally requires overnight accommodations, Defendant also has parenting responsibilities in Illinois, where his two minor sons live.
The location of witnesses also favors transfer. To be sure, some of the witnesses the government is likely to call are employed at the Passport Center, but those witnesses can easily travel at no expense to them. Defendant's witnesses, whether at trial or, equally importantly, at sentencing in the event of a conviction or plea, will likely be from the Chicago area and their attendance in New Hampshire will not be as easily or as inexpensively obtained, even assuming the government will provide transportation and lodging. Certainly, conducting defendant's criminal trial in this district would place a substantial burden on any witnesses he chose to call. See generally Aronoff, 463 F.Supp. at 458.
The location of events likely to be at issue also militates in favor of transfer. Defendant lives in the Chicago area, no doubt prepared the passport application at issue in Illinois, made the alleged misrepresentations there, and submitted the application there. This is not a paramount factor in this case, of course. But, on balance, the government's discovery of the alleged false statement in this district is not so critical as to warrant trial here. Similarly, that documents likely to be used at trial are located in New Hampshire is of little moment, given the ease with which they may be transmitted to Illinois. See, e.g., United States v. Posner, 549 F.Supp. 475, 478 (S.D.N.Y.1982) ("The location of documents and records is not a major concern in these days of easy and rapid transportation.").
Defendant's likely loss of income and/or employment if he were tried in this district is another factor that counsels in favor of transfer. See Russell, 582 F.Supp. at 663; Aronoff, 463 F.Supp. at 459. Defendant works at a diner and the burden associated with traveling to attend proceedings in New Hampshire necessarily interferes with his ability to earn wages necessary to support himself and his family. The amount at issue may be modest, but it is, no doubt, critical to the defendant, particularly given his indigence.
[T]he disruptive impact upon defendants' businesses by trial in this district, also favors transfer. Each of the defendants, although qualifying for CJA counsel, [is] either marginally employed or own and operate struggling businesses. . . . Defending criminal charges should not include the penalty of financial ruin where the trial might be conducted properly and legally in a forum near defendants' homes and businesses.
United States v. Haley, 504 F.Supp. 1124, 1128 (E.D.Pa.1981).
Similarly, the expense to defendant of trial in New Hampshire militates in favor of transfer. If his trial were to proceed in this district, he would be required to pay *12 for travel, lodging, and subsistence while in New Hampshire.. He does not have family or friends here with whom he could reside. It is, of course, true (as the government argues) that defendant could easily waive his appearance at various stages of the proceedings. But, he ought not be forced to make that choice due to the geographic distance between his home and the place of indictment and the costs associated with traveling here.
Defendant is currently represented by a New Hampshire Assistant Federal Defender, at public expense, while the government is represented by an Assistant United States Attorney. Without a doubt, appointed counsel can just as easily be provided to defendant in Chicago as here and, importantly, defendant will have much easier and more effective access to counsel where he lives. Similarly, the government will be as ably represented in Chicago as it is here, and it probably will prove more convenient to the government, as well, to have the defendant close by. In any event, the government's inconvenience is "a factor given little weight when other considerations of convenience suggest transfer." United States v. Gruberg, 493 F.Supp. 234, 243 (S.D.N.Y.1979).
On balance, then, the court is persuaded that the Platt factors counsel in favor of transferring this criminal proceeding to a venue closer to defendant's home in Illinois. As the Court of Appeals for the Second Circuit has observed:
Recognizing the unfairness and hardship to which trial in an environment alien to the accused exposes him, and the important policies underlying the venue provisions of the Constitution and Bill of Rights, the Supreme Court has declared that venue statutes should, whenever possible, be construed so to permit trial at the residence of the defendant.
United States v. Cashin, 281 F.2d 669, 675 (2d Cir.1960) (citing United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 89 L.Ed. 236 (1944)).
Conclusion
These cases will likely raise venue transfer issues somewhat routinely. Nevertheless, a systemic approach to resolving those issues is probably not appropriate, given the unique circumstances of each individual defendant. Government counsel, however, can readily identify those cases that ought to be brought where the defendant lives, and indict here only those cases in which transfer is not likely to be ordered.
In this particular case, having considered the Platt factors, the court is persuaded that defendant's case ought to be transferred to the Northern District of Illinois both for the convenience of the defendant and witnesses, and in the interest of justice. Defendant's motion to transfer venue (document no. 12) is, therefore, granted.
SO ORDERED.
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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 August 20, 2003
Charles R. Fulbruge III
Clerk
No. 02-41701
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS VILLALOBOS-REYES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-724-ALL
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Luis Villalobos-Reyes (“Villalobos-Reyes”) appeals his
guilty plea conviction and sentence for illegal reentry into the
United States following deportation. Villalobos-Reyes argues
that the sentencing provisions in 8 U.S.C. § 1326(b)(1) & (b)(2)
are unconstitutional based on Apprendi v. New Jersey, 530 U.S.
466 (2000). He also argues that a FED. R. CRIM. P. 11 guilty plea
colloquy should not be statutorily or constitutionally delegated
to a non-Article III magistrate judge. Villalobos-Reyes concedes
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-41701
-2-
that his arguments are foreclosed, but he nevertheless seeks to
preserve them for Supreme Court review.
Villalobos-Reyes’ contention that the enhancement provisions
in 8 U.S.C. § 1326(b)(1) & (b)(2) are unconstitutional lacks
merit because Apprendi did not overrule Almendarez-Torres v.
United States, 523 U.S. 24 (1998). See Apprendi, 530 U.S. at
489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).
Villalobos-Reyes’ contention that a magistrate judge should
not be statutorily or constitutionally delegated to conduct a
FED. R. CRIM. P. 11 plea colloquy is foreclosed by our decision in
United States v. Dees, 125 F.3d 261, 264-68 (5th Cir. 1997).
For the foregoing reasons, Villalobos-Reyes’ sentence is
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
272 F.Supp.2d 944 (2003)
In re LOCKHEED MARTIN CORP. SECURITIES LITIGATION
No. CV 99-00372 MRP.
United States District Court, C.D. California.
March 24, 2003.
*945 William S. Lerach, Randall J. Brown, Milberg, Weiss, Bershad, Hynes & Lerach, LLP, San Diego, CA, for Plaintiff.
B. Boyd Hight, Seth Aronson, Patrick N. Downes, Amy J. Longo, O'Melveny & Myers, LLP, Los Angeles, CA, for Defendants.
MEMORANDUM OF DECISION AND ORDER RE:
1. Motion for to Dismiss Plaintiffs' Consolidated Third Amended Complaint
2. Request for Judicial Notice
3. Motion to Strike Portions of Plaintiffs' Consolidated Third Amended Class Action Complaint
PFAELZER, District Judge.
I. Background
A. Factual Background
This is a class action brought on behalf of purchasers of Lockheed Martin Corporation *946 ("Lockheed" or "Company") stock between August 13, 1998 and December 23, 1998 (the "Class Period"), against Lockheed and six of its officers and directors. The individual defendants and their alleged positions during the Class Period are as follows:
Vance Coffman: CEO, Chairman of Board of Directors, and member of Executive Committee.
Marcus Bennett: Executive Vice President, Chief Financial Officer, and director.
James Blackwell: Vice President of Lockheed and Chief Operating Officer ("COO") of Lockheed's Aeronautics Sector.
Thomas Corcoran: Vice President of Lockheed and COO of Lockheed's Space and Strategic Missiles Sector.
Norman Augustine: director and member of the Executive and Finance Committees of Lockheed.
Vincent Marafino: director and member of the Audit and Ethics and Finance Committees of Lockheed.[1]
(Consolidated Third Amended Complaint, September 13, 2002, ¶ 28 ("CTAC" or "Complaint").)
Assuming the truth of Plaintiffs' allegations, see Brody v. Transitional Hospitals Corp., 280 F.3d 997, 998 (9th Cir.2002), the facts in this case are: beginning with an August 13, 1998 conference call with market professionals, Lockheed announced that it expected to sign a significant F-16 order with the United Arab Emirates ("UAE") by year-end 1998. The contract was anticipated to be for 80 F-16s, each equipped with "Block 60" technology, which included advanced electronic warfare systems with full software codes and extra large fuel tanks that substantially increase the flying range of the aircraft. (CTAC ¶ 73.)
At about the same time, the Company assured shareholders and analysts that its C-130J airplane program was poised for success and that the Company expected to deliver its first 25-30 C-130Js to the United States Air Force ("USAF") during the third and fourth quarter of 1998, to be followed by robust deliveries of these planes going forward. (CTAC ¶ 47.)
Based in large part on these anticipated successes, Lockheed expressed publicly during the Class Period that it anticipated strong third and fourth quarter 1998 results and that Lockheed would have 10% Earnings Per Share ("EPS") growth in the fourth quarter and for 1998. On December 23, 1998, however, Lockheed publicly disclosed that it would be unable to meet its prior forecast. Instead, Lockheed announced that its fourth quarter 1998 EPS would be at least 10% lower than its fourth quarter 1997 EPS and that 1998 revenues would be flat compared with 1997 revenues. Responding to the news, Lockheed share prices dropped from $95-3/4 to $82 per share.
Plaintiffs' core theory is that both the F-16 and C-130J forecasts were, when made, known to be false or misleading and that these statements artificially inflated Lockheed's share price during the class period. With respect to the F-16 statements, Plaintiffs conclude that Defendants must have known them to be false or misleading when made because of the UAE's insistence on obtaining the Block 60 technology. "Much of the technology was not currently being used by the USAF or Israel and would not enter the U.S. arsenal for at least five years." (CTAC ¶ 73.) Moreover, attempts by Saudi Arabia *947 and Egypt to purchase F-15 jet fighters with similar technology had been denied by the Pentagon. Thus, transfer of the technology to the UAE in the near term was "extremely unlikely." (CTAC ¶ 74.) Further complicating the situation is that the F-16 contract would have also required prior Congressional approval. According to Plaintiffs, Lockheed knew from its experience that "Pentagon and Congressional approval would normally take 6-8 months," thereby making the five month projection (from August 1998 to December 1998) overly ambitious and unrealistic.
Similarly, Plaintiffs allege that throughout the Class Period, Defendants knew that Lockheed would not and could not deliver any, let alone 30, C-130J airplanes in 1998. (CTAC ¶ 57.) In support of this allegation, Plaintiffs proffer statements from a former Lockheed flight engineer who worked on the C-130J throughout 1998 and who had responsibility for assuring compliance with all required certifications. According to the engineer, as of August 1998, the FAA certification (required by the USAF contract) had not been granted and the C-130J deliveries "had slipped by over 18 months." (CTAC ¶ 65.) Moreover, Lockheed was still, in late 1998, flight testing various models of the C-130J; this testing was required to "certify" that each C-130J complied with performance and reliability specifications. Finally, each C-130J aircraft was required to pass a functional test, referred to as "squawking out" the plane. Lockheed allegedly knew that individual aircraft had not been "squawked out" by late 1998 and that "more than 30 C-130Js could not be operationally tested, evaluated, qualified, and `squawked out' by the third or fourth quarter of 1998." (CTAC ¶ 67.)
According to the Complaint, Defendants had ample motive to deceive the investing public. First, Lockheed wished to acquire COMSAT, a commercial satellite company, using a combination of cash and common stock as consideration. To preserve the value of the acquisition to the participants, Defendants needed to maintain Lockheed's share prices at previous levels. Second, Defendants wanted to maintain a high share price to discourage what they perceived as a takeover threat by certain foreign defense contractors. Finally, the Individual Defendants had personal pecuniary interests in maintaining Lockheed share price. They allegedly took advantage of the false expectations to sell 268,659 shares of Lockheed shares at an aggregate of over $28 million (CTAC ¶ 23) and were also motivated by their compensation structure to generate strong financial results by whatever means possible (CTAC ¶¶ 124-125).
Based on these allegations, Plaintiffs allege that the Defendants have each violated § 10(b) and Rule 10b-5 of the Securities and Exchange Act of 1934 and that the Individual Defendants have each violated § 20(a) of the Securities and Exchange Act of 1934.
B. Procedural Background
Plaintiffs have now filed three complaints in this action. On October 3, 2000, the Court dismissed the initial complaint, but granted Plaintiffs leave to amend with respect to certain allegations. Plaintiffs filed a Consolidated Second Amended Complaint ("CSAC") on December 15, 2000, which was again dismissed on July 22, 2002. See Mem. of Dec. re: Def.'s Mot. to Dismiss Pl.'s Cons.Sec. Amended Class Action Compl., July 22, 2002 ("July 2002 Order").
The July 2002 Order granted Plaintiffs leave to amend with respect to four broad issues. First, Plaintiffs were granted leave to amend to allege how the executive committee was involved in Lockheed's day-to-day operations during the Class Period, *948 if at all, and how the defendants Augustine and Marafino each participated in these operations. See July 2002 Order at 7. Second, Plaintiffs were granted leave to amend to include facts indicating that Augustine, Marafino, Corcoran, and Blackwell were directly involved in the preparation of the allegedly misleading statements. See July 2002 Order at 12. Third, Plaintiffs were granted leave to amend to show that the Defendants actually knew that the allegedly misleading statements regarding the F-16 contract were false or misleading when made. See id. at 15. Finally, with respect to the C-130J forecasts, Plaintiffs were granted leave to amend the complaint 1) to demonstrate that the anonymous "engineers" and "Lockheed employees" described in paragraph 47 of the CSAC were in positions to gain personal knowledge regarding the facts attributed to them, 2) to disclose the basis for Plaintiffs' knowledge regarding the statements by Parrish and the briefing by Bullock, and 3) to plead facts indicating that Defendants actually knew that the statements regarding the C-130J program were false or misleading when made. See id. at 21-22. Leave to amend with respect to the LM21 program and the satellite launches was denied. Plaintiffs filed their Consolidated Third Amended Complaint on September 13, 2002.
The following motions, all submitted by Lockheed, are before the Court: Motion to Dismiss Plaintiffs' Consolidated Third Amended Class Action Complain, Request for Judicial Notice, and Motion to Strike Portions of Plaintiffs' Consolidated Third Amended Class Action Complaint. For the reasons set forth below, the Motion to Dismiss is GRANTED and the Consolidated Third Amended Complaint is hereby dismissed in its entirety with prejudice. The Motion to Strike and the Request for Judicial Notice are DENIED because the granting of the Motion to Dismiss renders moot the issues set forth in those papers.
II. Legal Standard
The Motion to Dismiss is governed by the Private Securities Litigation Reform Act of 1995 ("PSYLLA"), 15 U.S.C. §§ 78u-4, 78u-5 et seq. (1997), which Congress enacted to deter abusive and frivolous securities fraud claims. See In re Silicon Graphics Inc. Secs. Litig., 183 F.3d 970, 973 (9th Cir.1999). The PSYLLA requires that a complaint plead with particularity both falsity and scienter. Ronconi v. Larkin, 253 F.3d 423, 429 n. 6 (9th Cir.2001). Thus, the complaint 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, the complaint shall state with particularity all facts on which the belief is formed." 15 U.S.C. § 78u-4(b)(1).
As to the scienter requirement, the complaint must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." Id. Generally, the required scienter is "deliberate or conscious recklessness" and mere motive and opportunity are insufficient. Silicon Graphics, 183 F.3d at 979. However, forward-looking statements[2] are protected if either of the following is true: 1) the forward-looking statement is "accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially" or are immaterial, 15 U.S.C. § 78u-5(c)(1)(A) or 2), the "plaintiff fails to prove that the forward-looking *949 statement was made with actual knowledge ... that the statement was false or misleading," 15 U.S.C. § 78u-5(c)(1)(B). Thus, for forward-looking statements, Plaintiffs must state with particularity facts giving rise to a strong inference of actual knowledge.
In considering a motion to dismiss, the Court considers "whether the total of plaintiffs' allegations, even though individually lacking, are sufficient to create a strong inference that defendants acted with deliberate or conscious recklessness," and not merely whether each individual allegation is sufficient. Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1038 (9th Cir.2002). In so doing, the Court takes into account "all reasonable inferences to be drawn from the allegations, including inferences unfavorable to the plaintiffs." Gompper v. VISX, Inc., 298 F.3d 893, 897 (9th Cir.2002). If the allegations could equally and plausibly support an inference showing the absence of fraud, then Plaintiffs have not met their burden. See id. at 896-97.
III. Discussion
A. Forward-Looking Statements
Preliminarily, the Court disagrees with Plaintiffs' contention that Defendant's statements regarding the C-130J and F-16 programs were not forward-looking statements. Although the Court has previously ruled that the statements are forward-looking statements as defined by the PSYLLA, 15 U.S.C. § 78u-5(c), Plaintiffs continue to argue that two factors take the statements outside of the safe-harbor. First, they argue that Lockheed did not provide the meaningful cautionary statements required by the PSYLLA. Second, they argue that Lockheed's statements were not forward-looking; rather they were premised on and concerned the then-current success of the Company. Neither argument withstands scrutiny.
The Court rejects the position that because Lockheed did not make meaningful cautionary statements, the statements fall outside the safe-harbor. Assuming, arguendo, that meaningful cautionary statements were lacking, the PSLRA protects forward-looking statements if they either are accompanied by meaningful cautionary statements or were made without actual knowledge that the statements were false or misleading. See, e.g., In re Splash Tech. Holdings Secs. Litig., 160 F.Supp.2d 1059, 1069 (N.D.Cal.2001); In re Boeing Sec. Litig., 40 F.Supp.2d 1160, 1167 (W.D.Wash.1998); In re Amylin Pharm., Inc. Sec. Litig., 2002 WL 31520051, *8-9, 2002 U.S. Dist. LEXIS 19481, *23-25 (S.D.Cal.2002).
Plaintiffs also argue that although a promise to sign a contract for 80 F-16s, for example, might appear to be forward-looking, it is in fact, necessarily based on certain facts being currently true. Thus, a forecast with respect to future contracts for F-16s signals to the public facts relating to the current status of the F-16 program such as the fact that the F-16 is an actual plane that exists and that Lockheed is in or plans to engage in negotiations with others. As these statements depend on present facts and allow the investing public to infer such present facts, Plaintiffs argue that they are not entitled to the protection accorded forward-looking statements by the PSLRA.
While the Court agrees that statements based on current fact are actionable, it is unwilling to stretch that principle into one in which predictions of future events become actionable merely because they happen to have some basis in present facts.[3]*950 To accept Plaintiffs' position would be to carelessly intermingle the two related but analytically distinct issues of whether 1) a statement is forward-looking and 2) if so, whether the forward-looking statement is nevertheless actionable because the speaker knew that the statement was false or misleading when he made it. For example, Plaintiffs cite In re 2TheMart.com, Inc. Sec. Litig., 114 F.Supp.2d 955 (C.D.Cal.2000), for the proposition that the statement at issue in that case was "not forward-looking because it was undermined by the factual omissions that the preliminary contract had not been signed." (Opp'n. at 6.) In so doing, Plaintiffs imply that if a plaintiff merely provides vague allegations that there were omissions, the protections for forward-looking statements do not apply.
This position reflects the law neither of the Ninth Circuit nor of 2TheMart.com. See In re Clorox Co. Secs. Litig., 238 F.Supp.2d 1139, 1145 (N.D.Cal.2002) ("Here, the relevant statement was forward-looking. Rose was estimating the time it would take for Clorox to clear out the excess inventory. Although her statement was based on existing knowledge, it was quite clearly a prediction of future events."). Instead, the proper analysis is to begin by determining whether a statement is forward-looking. If the statements are forward-looking, the burden is then on Plaintiffs to show that Defendants had actual knowledge that the statements were false or misleading. See 15 U.S.C. § 78u-5(c)(1)(B). Plaintiffs, in asking first whether there were omissions, and then asking whether the statement is forward-looking, put the proverbial cart before the horse. To accept Plaintiffs' position would be to discard a statutory framework that provides protection for forward-looking statements, replacing it instead with the notion that mere allegations of omission, not even rising to the level of actual knowledge, would make such statements actionable.
Here, the Court proceeds by first asking whether the statements speak of future or contingent events. To this question, the Court answers, "yes." The focus then becomes whether the statements are nonetheless actionable because of actual knowledge of the false or misleading nature of the statements at the time they were made. It is to this second issue that the Court now turns its attention.
B. F-16 Contract
In the July 2002 Order, the Court acknowledged that Plaintiffs had pled facts raising a specter that the statements regarding the F-16s were misleading. See July 2002 Order at 13. However, since the statements regarding the F-16 contract are forward-looking, Plaintiffs must demonstrate that Defendants actually knew that the forward-looking statements were false or misleading when they were made and must plead facts sufficient to establish such knowledge in order to survive a motion to dismiss. See In re Splash Tech. Holdings Secs. Litig., 160 F.Supp.2d at 1069. Although Plaintiffs had repeatedly failed to plead facts sufficient to demonstrate *951 Defendants' knowledge, the Court granted leave to "amend the complaint to show that the Defendants actually knew that the allegedly misleading statements were false when made." July 2002 Order at 15. The CTAC incorporates few changes to the F-16 allegations, and the changes that have been made are clearly insufficient to meet the PSLRA's requirements.
Preliminarily, the allegations are legally insufficient because Plaintiffs' allegations about why Defendants had actual knowledge of the alleged facts are based solely upon conjecture. Plaintiffs attribute the knowledge not to any inside sources, documentation, or available public information; rather, Lockheed is claimed to have knowledge of the alleged facts because of its position as "the primary contractor for the manufacture of the F-16 fighter aircraft," (CTAC ¶ 73), and because "Boeing's F-15 was a major competitor to Lockheed's F-16," (CTAC ¶ 74). If these types of logical inferences and generalizations were sufficient to meet the PSLRA's requirements, plaintiffs could effectively manufacture support in any case to overcome the PSLRA's requirements.
In any event, Plaintiffs' allegations suffer from another shortcoming. Although Plaintiffs continue to allege that numerous sources of information existed that demonstrate the false or misleading nature of the F-16 statements, they muster facts sufficient only to allege that a portion of this information was known to Lockheed. Even if the Court were inclined to agree that this entire latter set of information was actually known to Lockheed, the Court would still find that information insufficient to demonstrate that Lockheed knew that its statements were false or misleading when made.
The items of information that Plaintiffs actually claim were known by Lockheed show only that the Block 60 technology was cutting-edge, not that Defendants knew that the United States would not allow sale of such technology to the UAE. That the United States would not have the technology for five years can be attributed to the advanced nature of the technology; but it can equally be attributed to budgetary constraints, a lack of faith in the technology, or simply bureaucratic red tape. Plaintiffs plead no facts that persuade the Court to prefer one inference to another. Nor does the Pentagon's denial of Boeing's request to sell similar technology to Saudi Arabia and Egypt serve to indicate that Defendants knew the false or misleading nature of their statements. The F-15 and F-16 are entirely different aircrafts with presumably different capabilities and intended uses. Under any circumstance, the Court would be wont to accept such a tenuous chain of reasoning from the Plaintiffs; the reasons for rejecting such reasoning are enhanced where, as here, the heightened pleading requirements of the PSLRA apply.
C. C-130J Contract
In the July 2002 Order, the Court dismissed all allegations with respect to the C-130J because Plaintiffs failed to allege that Defendants actually knew that the statements regarding the C-130J program were false or misleading when made. Like the F-16 pleadings in the CTAC, Plaintiffs' pleadings in the CTAC with respect to the C-130J remain insufficient under the PSLRA because they fail to properly demonstrate that facts known to Lockheed made the statements false or misleading when made.
A recurrent theme in the C-130J evidence proffered by Plaintiffs is not what the allegations say, but what has (presumably) been carefully filtered out. For example, Plaintiffs allege that as of August 1998, FAA certification had not been *952 granted; they do not say that as of August 1998, Lockheed knew that certification would not be granted by year end. Moreover, the C-130J deliveries "had slipped by over 18 months," but Plaintiffs do not allege what was the original delivery date. Are Plaintiffs alleging that the original target date was December 1998 and that the 18 month delay would put the target delivery date at June 2000? Or perhaps the initial date was June 1997, and the 18 month delay would mean delivery on December 1998?
Allegations that individual aircraft had not been "squawked out" by late 1998 are equally ambivalent. Plaintiffs do not allege either the total number of C-130Js in production at the time, or the total number of C-130Js that had not been "squawked out" by late 1998. Thus, Plaintiffs' allegations are entirely consistent with a scenario in which Lockheed was building 35 airplanes, five of which had not been "squawked out." This hypothetical scenario would, of course, do nothing to prove the actual falsity of the Lockheed statements regarding its ability to deliver 25-30 airplanes. Indeed, even if Lockheed had only 25 airplanes, none of which had been "squawked out" by "late 1998," nothing in the CTAC alleges that Lockheed knew that the "squawking" process for 25-30 airplanes could not be completed in the interim between "late 1998" and December 31, 1998; rather, the CTAC only alleges that "more than 30 C-130Js" could not be completed by December 31, 1998. (CTAC ¶ 67.) Since Lockheed is only alleged to have promised 25-30 airplanes, allegations with respect to "more than 30 C-130Js," even if true, would be irrelevant.
The remaining C-130J allegations in the CTAC suffer from similar defects. For example, although Plaintiffs allege that training infrastructures were not established until 1999, they do not allege that the establishment of such infrastructures was a condition to C-130J aircraft delivery. Further, allegations stemming from Gene Elmore's statement are insufficient:
According to a June 17, 1998 Wall Street Journal article, Gene Elmore the C-130J line manager at Lockheed's Marietta plant told Coffman repeatedly in October and November of 1998 that seven C-130J airplanes were at "high risk" of missing the year-end delivery dates. This "high risk," however, was not disclosed to shareholders during the Class Period.
(CTAC ¶ 68.) The Court assumes that the article was actually printed in 1999, and not 1998. In either case, the allegation again does not show that Lockheed's statements were known to be false or misleading when they were made. Plaintiffs do not establish why Mr. Elmore believed the C-130Js were at "high risk" of missing delivery dates or whether Coffman (or any other members of Lockheed's senior management) agreed, or had reason to agree, with Mr. Elmore's assessment. See, e.g., Nursing Home Pension Fund v. Oracle Corp., 242 F.Supp.2d 671, 681 (N.D.Cal. 2002) ("Providing the Court with information that Sanderson or Ellison had access to `up to the minute' global roll-ups without providing what the details actually were cannot satisfy the pleading requirements of the PSLRA. Nor does the fact that these confidential witnesses, from their knowledge of the several regional, national, or global databases, thought that sales `went dead,' `fizzled out,' `dried up,' and `stopped' establish that Ellison, Sanderson or Henley knew of this information or thought the same thoughts."); In re Nike, Inc. Sec. Litig., 181 F.Supp.2d 1160, 1168 (D.Or.2002).
Just as importantly, if the C-130J statements were made prior to October and November of 1998, Mr. Elmore's warnings *953 could not have made those earlier statements false or misleading when made.
With these large and unexplained gaps, the Court finds that Plaintiffs have not met their burden of alleging "with specificity that the defendants made false or misleading statements with deliberate or conscious recklessness." See Lipton, 284 F.3d at 1035.[4]
D. Individual Defendants: Applicability of America West
The allegations against the Individual Defendants fail for two reasons. Initially, they fail because the pleading inadequacies fatal to Plaintiffs' claims against the Company are likewise fatal to the claims against the Individual Defendants because the latter derive from the same set of facts. Nothing in the Complaint suggests that any of the Individual Defendants had access to facts in addition to what is pled with respect to the Company's knowledge of the C-130J program (CTAC ¶¶ 47-71; 90-91) or the F-16 program (CTAC ¶¶ 72-77). As a threshold matter, then, Plaintiffs have failed to allege any facts suggesting that the Individual Defendants can be held liable.
The allegations also fail because Plaintiffs do not plead facts sufficient to support a strong inference of scienter on the part of the Individual Defendants. Although Plaintiffs had failed on two previous occasions to show scienter, they now contend that the amended pleadings, taken together with No. 84 Employer-Teamster Joint Counsil Pension Trust Fund v. America West Holding Corp. et al., 320 F.3d 920 (9th Cir.2003) ("America West"), which was issued by the Ninth Circuit after the present Motion was filed, fortifies the CTAC against the PSLRA requirements.
1. America West
The Court assumes familiarity with the America West case and will recite only those details necessary to address the questions here presented. In America West, the District Court "concluded that the stock sales by the officers, directors, and controlling shareholders were not suspicious and failed to raise a strong inference of scienter." Id. at 938. "[T]he District Court found it dispositive that none of the officers or directors [except one] who allegedly engaged in insider trading made any of the false or misleading statements." Id.
The Ninth Circuit Court of Appeals reversed. In so doing, it first stated that "[a]n insider's silence as to the statements is not dispositive." Id. "Rather, it is merely another factor that should be considered in determining whether a strong inference of scienter has been raised." Id. The Ninth Circuit then determined that the amount and percentage of shares sold, the timing, and the prior trading histories made the stock sales by the individual defendants there "unusual and suspicious" and enough to "give rise to a strong inference of scienter." Id. at 940.
The Ninth Circuit also held that plaintiffs had sufficiently alleged scienter with respect to the individual defendants' knowledge of the false or misleading nature of their statements. Although some of the defendants in America West argued that the issues regarding maintenance, safety, and the FAA investigation never rose to the level of Board discussions or communications with shareholders, the Ninth Circuit rejected the argument as "patently incredible." Id. at 943 n. 21. Considering that the FAA had indicated *954 penalties of up to $11 million and that the defendant company was contemplating repurchasing authorization for millions of dollars worth of stock, the Ninth Circuit found that the plaintiffs there had sufficiently raised a strong inference of deliberate recklessness. Id. at 943-44.
Plaintiffs argue that America West supports their Complaint in two essential aspects.[5] First, Plaintiffs argue that America West demonstrates that the Court committed error in calculating the percentage of shares that Defendants sold. Specifically, Plaintiffs allege that vested, but unexercised, options should not be included in calculating the percentage of shares sold, see id. at 936 n. 16, and that non-selling Defendants should not have been included in the calculations. Second, they argue that the Court required too much in the July 2002 Order when it found that the Plaintiffs had not demonstrated active involvement by certain Individual Defendants sufficient to infer that they had knowledge about the false or misleading nature of the statements at issue.
2. Share Calculations
Silicon Graphics and America West condone different approaches to determine the percentage of shares sold. In Silicon Graphics, the Ninth Circuit held that in determining the proper proportions of stock sales, the lower court did not err in taking into account vested but unexercised options:
When evaluating stock sales, we have held that the proportion of shares actually sold by an insider to the volume of shares he could have sold is probative of whether the sale was unusual or suspicious. In this case, we see no reason to distinguish vested stock options from shares because vested stock options can be converted easily to shares and sold immediately. Actual stock shares plus exercisable stock options represent the owner's trading potential more accurately than the stock shares alone.
Silicon Graphics, 183 F.3d at 986-87. The America West court departs from the method used in Silicon Graphics by deriving its percentages using only the common stock and exercised options. See America West, 320 F.3d at 939 n. 16.
The differences in methodologies, however, do not support Plaintiffs' contention that the Court should not consider the vested but unexercised options. Neither Silicon Graphics nor America West state a rule mandating that vested options should or should not be included. Rather, the Silicon Graphics court pointed out that in most instances, it is more appropriate to take into account vested options because the occasions are rare where there is a true economic distinction between vested and unexercised options and exercised shares. The decision, however, left open the possibility that different situations might mandate different approaches. See Silicon Graphics, 183 F.3d at 986 ("In this case, we see no reason to distinguish ....") (emphasis added). While the America West court chose a different methodology, it did not repudiate the logic set forth in Silicon Graphics. In the absence of more guidance by the America West court, this Court can only speculate as to why America West deviated from Silicon Graphics.
There are, of course, many possible good reasons to do so. For example, the calculations in America West were provided by the plaintiffs, America West, 320 F.3d at 940, and it is conceivable that neither the defendants there nor the court chose to *955 challenge that assumption. Alternatively, it may have been that the number of vested options in America West was so insignificant as to make the dispute academic. Finally, there may have been restrictions on the ability to exercise the options or to subsequently sell the issued shares such that the vested options did not fully represent the owner's trading potential. Each of these possibilities are, of course, persuasive reasons not to include vested options and the America West court's decision not to include vested options is not actually inconsistent with Silicon Graphics.
Ultimately, the weakness of Plaintiffs' position lies not in the law as set forth in Silicon Graphics or America West. The tension between the two cases is an illusory one and both cases leave room to ignore vested options where there is reason to do so. Rather, the weakness of Plaintiffs' position is that Plaintiffs do nothing to show that inclusion of vested options in this case distorts, rather than reflects, economic reality. Without more explanation in the America West opinion itself or by the parties, the Court is unwilling to read so much into the America West case as to assume that it lays down a new rule regarding vested options.
Similarly, the Court is unwilling, without more, to accept Plaintiffs' reading of America West as standing for the proposition that those who did not sell should not be included in the percentage calculations. The America West opinion included a chart that shows the percentage of shares sold by nine individual defendants. From this fact alone, Plaintiffs would have the Court infer that America West mandates a substantial departure from prior Ninth Circuit case law suggesting that non-selling insiders can be taken into account. See, e.g., Lipton, 284 F.3d at 1037; Ronconi, 253 F.3d at 436. As with the issue over unexercised options, the Court is unwilling to infer merely from the fact that the particular chart included in the opinion, without more, represents a mandate or authority for the Court to ignore those defendants that did not sell.
3. Inferring Actual Knowledge on Individual Defendants
Plaintiffs attempt to bolster their scienter claims against Augustine and Marafino by pointing to allegedly insider trading executed at suspicious times. "`[U]nusual' or `suspicious' stock sales by corporate insiders may constitute circumstantial evidence of scienter ...." Silicon Graphics, 183 F.3d at 986 (citation omitted). However, insider stock sales are only suspicious when they are "dramatically out of line with prior trading practices at times calculated to maximize the personal benefit from undisclosed inside information." Id. (quoting In re Apple Computer Sec. Litig., 886 F.2d 1109, 1117 (9th Cir.1989)). "Among the relevant factors to consider are: (1) the amount and percentage of shares sold by insiders; (2) the timing of the sales; and (3) whether the sales were consistent with the insider's prior trading history." Id. (citing Provenz v. Miller, 102 F.3d 1478, 1491 (9th Cir. 1996)). "[L]arge numbers do not necessarily create a strong inference of fraud." In re Vantive Corp. Secs. Litig., 283 F.3d 1079, 1093 (9th Cir.2002). Finally, "[o]ne insider's well timed sales do not support the `strong inference' required by the statute where the rest of the equally knowledgeable insiders act in a way inconsistent with the inference that the favorable characterizations of the company's affairs were known to be false when made." Ronconi, 253 F.3d at 436.
The July 2002 Order dismissed the allegations against both Marafino and Augustine because Plaintiffs had failed to allege that either was involved in the day-to-day operations of the Company. See July 2002 Order at 7. As noted in the July 2002 *956 Order, by the beginning of the Class Period, "both Augustine and Marafino had retired from their positions as Lockheed executive officers." July 2002 Order at 5. While the CSAC alleged that Augustine and Marafino served as board members and members of the Executive Committee, the Court concluded that the "duties of an ordinary board member generally do not include participation in executive activities." Id. at 5. "Similarly, asserting that the men are members of Lockheed's executive committee, without describing the duties of the committee or how these defendants participated in it, does not demonstrate active involvement in day-to-day operations." Id. The July 2002 Order gave Plaintiffs leave to amend solely with respect to whether Augustine and Marafino maintained involvement in day-to-day Company operations.
In the CTAC, Plaintiffs in part continue on the discredited strategy of focusing on Marafino's and Augustine's duties prior to the Class Period. (CTAC ¶¶ 114, 117.) Reliance on pre-class period duties has already been rejected and merits no further discussion or consideration by the Court. See id. at 5 ("The additional facts pertaining to Marafino and Augustine refer almost exclusively to their pre-class period accomplishments and affiliations with the company. Plaintiffs must demonstrate day-to-day involvement during the Class Period when the insider trading allegedly took place.") (citations omitted).
To the extent that the CTAC contains more detailed allegations with respect to the Class Period, such allegations are wholly conclusory and insufficient under Silicon Graphics. For example, Plaintiffs allege that as a member of the Finance Committee, Augustine "reviewed the financial condition of the Company, and reviewed and made recommendations regarding the Company's budget." (CTAC ¶ 116.) Further, Plaintiffs allege that Augustine had more active involvement with the Company than an ordinary director "due to his skill and knowledge of Lockheed's ongoing business and the industry." (CTAC ¶ 114.)
The allegations with respect to Marafino are pled with similar lack of detail. It is alleged that as a member of the Finance Committee, "Marafino received regular updates regarding the status of the Company's major projects" and that due to his various roles within the Company, "Marafino was well aware of the true states of affairs regarding the Company's C-130J deliveries, the F-16 contract negotiations with the UAE and third and fourth quarter 1998 financial results." (CTAC ¶ 118.)
The pleadings in the CTAC with respect to Augustine and Marafino clearly do not meet Silicon Graphic's mandate that Plaintiffs "state with particularity facts giving rise to a strong inference of the required state of mind, i.e., at least deliberate recklessness." Silicon Graphics, 183 F.3d at 985. Plaintiffs here have done no more than to "set forth a belief that certain unspecified sources will reveal, after appropriate discovery, facts that will validate [their] claim." Id. Contrary to Silicon Graphics's mandate that the Plaintiffs provide, for example, "sources of [their] information, with respect to the reports, how [they] learned of the reports, who drafted them, or which officers received them," id., no source, anonymous or named, is cited in the CTAC to support either the existence or substance of these "regular updates." Moreover, Plaintiffs have apparently found no one willing to corroborate their allegations of extensive day-to-day involvement by Augustine and Marafino. Such "unsubstantiated internal reports alone are insufficient to demonstrate such recklessness." Id.; Vantive, 283 F.3d at 1087-88; In re Guess? Inc. Secs. Litig., 174 F.Supp.2d 1067, 1076 (C.D.Cal.2001) ("The Court is provided no *957 information as to who drafted these reports, what date the key reports or statements were made, what specifically the reports contained, or any other corroborating details. This is insufficient pleading.") (citations omitted). To hold otherwise would be to vitiate the core requirements of the PSLRA.
America West does not mandate a different result. To the contrary, the America West court affirmed the principle that allegations with regard to "internal reports" must be accompanied by some "indicia of reliability." America West, 320 F.3d at 942 n. 20. The plaintiffs in America West went further than Plaintiffs here by identifying the person who directed the preparation of the reports. Even then, the court nevertheless found that that was not enough. Although the court noted that "requiring a plaintiff to provide specifics from the reports prior to discovery seems a bit unfair," the Court was nevertheless bound by precedent and therefore gave "the internal reports little or no weight" in its analysis. America West, 320 F.3d at 942 n. 20. In stark contrast, Plaintiffs here provide far less than the America West plaintiffs. The Court thus sees no alternative other than to apply the same "unfair" stringent standard here.[6]See id.
E. Remaining Individual Defendants
In the July 2002 Order, the Court ruled that the Individual Defendants Augustine, Marafino, Corcoran, and Blackwell could not be held liable since only Coffman and Bennett were alleged to have made any of the statements at issue. In so doing, the Court found that the group-published information doctrine did not survive the enactment of the PSLRA. See July 2002 Order at 12. The CTAC alleges no new information to suggest that Augustine, Marafino, Corcoran, and Blackwell were directly involved in the preparation of the allegedly misleading statements and these defendants should thus be dismissed with prejudice.
With respect to Bennett and Coffman, the Court has previously dismissed all allegations except for those relating to reports prepared by analysts Cal Von Rumohr and Howard Rubel. These two remaining allegations have already been foregone by the Plaintiffs and thus warrant no further consideration. See July 2002 Order at 25 ("Plaintiffs do not allege in the Second Consolidated Amended Complaint that Defendants are liable for the reports of Von Rumohr and Rubel, or that such reports were false or misleading in any way. The new complaint appears to reference the reports only in the context of providing factual background for other allegations.").
Thus, none of the Individual Defendants can be held liable for statements by or to analysts.
*958 F. Overall Analysis
Having found the individual allegations insufficient to satisfy the heightened pleading requirements, the Court also finds that the allegations taken as a whole are insufficient. At first glance, this case appears complicated. There are multiple defendants, different levels of selling by shareholders, and two different sets of statements alleged to be false or misleading. At the core, however, Plaintiffs' case must be based on the foundation that there existed information or reasons for the Defendants to believe that the F-16 and C-130J statements were false or misleading when made. Plaintiffs have failed the task of pleading such knowledge and, not surprisingly, the pleadings as a whole fail to present even a facade of the conscious wrongdoing required to survive the Motion to Dismiss.[7]
IV. Conclusion
Plaintiffs for the third time have failed to satisfy the PSLRA's pleading requirements. Plaintiffs' entire case rests on the fact that the statements with respect to the C-130J and F-16 programs were known to be false or misleading when they were made. While Plaintiffs' allegations might have sufficed to give the Court a basis to infer that some wrongdoing occurred, the PSLRA requires much more. It requires the Court to examine all reasonable inferences, both favorable and unfavorable to the Plaintiffs' case. Applying that standard, it seems obvious that the facts pled here do not lead only to the inference that the Defendants knew the statements regarding the C-130J and F-16 were false when they made them; rather, examining both the individual allegations and the allegations as a whole, it appears that the Defendants made some forecasts in 1998 which, while aggressive, were nevertheless grounded in some realistic expectations.
Not all the expectations were borne out, and both Lockheed and its numerous investors suffered as a result. Congress, however, has made a determination that the losses suffered must be attributable to facts and circumstances alleged in accordance with the requirements of the PSLRA. The allegations here do not satisfy that standard.
For the reasons stated, Plaintiffs' suit is hereby DISMISSED. Because the Court believes that no further amendments could cure the defects fatal to the first three complaints, the dismissal shall be WITH PREJUDICE. See Lipton, 284 F.3d at 1038-39. The Motion to Strike and the Request for Judicial Notice are each DENIED.
IT IS SO ORDERED.
NOTES
[1] Each individual defendant will be referred to as an Individual Defendant. The Individual Defendants and Lockheed will collectively be referred to as the Defendants.
[2] A forward-looking statement means, among other things, a statement containing a projection of revenues, income (including income loss), earnings and a statement of the plans and objectives of management, and a statement of future economic performance. 15 U.S.C. § 78u-5(i)(1)(A)-(C).
[3] Plaintiffs' observation that Lockheed's statements about the future had an immediate effect of driving up the market price of Lockheed stock is of no legal or logical moment. Under almost any established theory of the market, the price of a company's stock reflects certain expectations about the future condition of the company. See, generally, Ronald J. Gilson & Reinier H. Kraakman, The Mechanisms of Market Efficiency, 70 Va. L.Rev. 549, 561 (1984) (noting that securities prices ultimately turn on expectations about future earnings). Hence, the fact that the stock price changes immediately does not, by logic, imply that the statement was about the current condition of the company. Indeed, if the stock price never adjusted for statements about the future of the company, then the protection for forward-looking statements would be irrelevant since no investor would ever be able to show damages based on forward-looking statements.
[4] Because Plaintiffs have failed to plead any facts demonstrating that there was any information that tends to show the statements with respect to the C-130J and F-16 were false or misleading when made, the Court need not and does not intimate any view on whether Plaintiffs have properly identified their sources.
[5] Plaintiffs also argue that America West counsels that the mere fact that the people making the false or misleading statements did not also sell stock is not dispositive. Id. at 940. As the Court does not disagree with this point, no further discussion is warranted.
[6] The Court notes that neither party addresses another relevant distinction between America West and the case at hand. In America West, the "bad news" would have come from a source outside of the company the Federal Aviation Administration ("FAA"). In its communications with the defendant company, it is most likely that the FAA communicated directly with senior management and/or the board. Additionally, while the FAA fine might have been ultimately appealable, the FAA communications would have left no dispute as to the amount of the initial assessment.
By contrast, much of the bad news here would have originally been discovered on the production floor and would have had to percolate up to management. Moreover, the workers in the production floor might not have access to the range of information necessary for accurate situation analysis. Such incomplete information might thus have led the production workers to 1) not report such perceived problems up the ladder or 2) to report those problems, and be reasonably ignored or overruled.
[7] The dismissal of the Section 10 claims renders moot the Section 20(a) claims, since the latter requires that Plaintiffs establish a strong inference of a primary violation of the securities laws. See Howard v. Everex Systems, Inc., 228 F.3d 1057, 1065 (9th Cir. 2000).
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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
HUNTER J. REECE JON P. MCCARTY
JUDSON G. BARCE Covington, Indiana
BONNIE J. ADAMS
Barce & Reece, P.C. Dec 12 2013, 10:14 am
Fowler, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARITY LINDQUIST, )
)
Appellant-Petitioner, )
)
vs. ) No. 23A04-1306-DR-277
)
CORY LINDQUIST, )
)
Appellee-Respondent. )
APPEAL FROM THE FOUNTAIN CIRCUIT COURT
The Honorable Susan Orr Henderson, Judge
Cause No. 23C01-0412-DR-490
December 12, 2013
OPINION—FOR PUBLICATION
BAKER, Judge
We first acknowledge that the trial court was faced with an extremely difficult—
and almost Solemnic—decision in this case. More particularly, we must determine
whether the trial court properly entered an order restricting the custodial parent,
appellant-petitioner, Charity Lindquist (Mother), from permitting her and former
husband, appellee-respondent, Cory Lindquist’s (Father) (collectively, the parents),
children to continue an unsupervised relationship with Mother’s boyfriend when Father is
not otherwise entitled to be with them under the Indiana Parenting Time Guidelines
(Guidelines). The trial court’s order noted that Mother’s relationship with her boyfriend
was undermining and interfering with Father’s relationship with the children. As a result,
Mother contends that her constitutional right to due process was violated along with her
right of freedom of association.
After reviewing the evidence, we initially observe that the trial court’s
determination that Mother was in contempt for denying Father his Christmas 2012 time
must be affirmed.1 However, because there is no evidence that Mother is an unfit parent
or that permitting the children to spend unsupervised time with Mother’s boyfriend
violated the children’s best interests or that he posed a danger or detriment to the
children, we must conclude that this portion of the order was too restrictive and,
therefore, the trial court improperly determined that the children were not permitted to
spend any “one on one” unsupervised time with Mother’s boyfriend. As a result, we
affirm in part, reverse in part, and remand this case to the trial court with instructions that
1
Mother does not challenge the trial court’s finding of contempt with regard to this issue.
2
it craft an order that will not deny Father the opportunity to exercise additional parenting
time in accordance with the Guidelines, but also to permit the children to interact with
Mother’s boyfriend on an unsupervised basis should Mother so desire, so long as Father’s
relationship with the children is not undermined or thwarted.
FACTS
Mother and Father were formerly married and are the parents of triplet girls born
on November 26, 2002. Shortly before the girls turned two years old, the parents
separated. The Fountain Circuit Court dissolved the parties’ marriage in July 2005.
The trial court awarded the parents joint legal custody of the girls and Mother was
to have primary physical custody. Father was awarded parenting time as the parties
could agree. In the event of a dispute, parenting time would be decided in accordance
with the Guidelines.
At some point before the marriage was dissolved, Mother began a romantic
relationship with Robert Criswell. Mother and the children began living with Criswell
when the triplets were three years old. Criswell lived in the vicinity and held ownership
interests in a local restaurant and movie theater. Mother and Criswell never married, but
they lived together with the triplets for nearly seven years. Although Mother and the
triplets eventually moved out, Mother and Criswell continued their relationship.
On June 6, 2011, Mother filed a petition to establish parenting time because she
and Father could not agree on a schedule, particularly with regard to the children’s
participation in extracurricular activities. Although the trial court ordered the parents to
3
attend mediation, Father filed a petition for rule to show cause on September 15, 2011, at
which time the trial court affirmed its order for the parties to participate in mediation.
The parents proceeded to mediation and filed an agreed order with the trial court
on August 17, 2012, which settled most of the issues, except for Mother’s alleged
contempt and her perpetuation of the relationship between Criswell and the children. The
first line of the agreed order provided that “the parties agree that they shall follow the
Indiana Parenting Time Guidelines.” Appellant’s App. p. 23-24. However,
approximately ninety days later, Mother allegedly violated the agreement by refusing
Father any parenting time with the children on Christmas Eve or Christmas Day in 2012.
Rather, Mother permitted the children to vacation with Criswell and his family in
Mother’s absence.
At a hearing that commenced in May 2013, the evidence established that Mother
and Criswell had not been living together for nearly a year and a half. The children were
approximately nine years old when Mother and Criswell stopped living together.
Criswell has never petitioned the court to establish a legal parenting time relationship
between him and the children since he and Mother separated.2 However, even after
Mother and Criswell separated, Mother has permitted Criswell to take the children to
doctor appointments on multiple occasions without Mother present, has had the children
overnight in his home on many occasions, has hosted slumber parties for the children and
2
As is pointed out more thoroughly below, Criswell does not have a parental right to see and visit with
the children.
4
has attended their extracurricular activities on a regular basis, and has taken them on
family vacations without Mother.
Criswell testified that the parties’ triplets often refer to him as “Dad.” Tr. p. 8.
Although Criswell has a twenty-seven-year-old son, he has “outfitted” his residence with
young children in mind. Id. at 12, 27-28. More specifically, Criswell’s home includes
swings, a trampoline, all terrain vehicles, a playhouse and cabin, and numerous animals
for the children.
Criswell also provides Mother financial assistance on a regular basis, which has
included thousands of dollars over the three and one-half years since Criswell and Mother
stopped living together. Criswell has also opened savings accounts for each of the
children and has provided for them in his will. According to Criswell, he told the
children about these accounts years ago, even though the children were very young.
Dr. Ann Carlson, a clinical child psychologist, testified at the hearing that children
benefit from strong stable bonds, called “natural supports,” from people who are “not
necessarily family or paid providers,” which aide in the child’s development. Id. at 101-
02.
On the other hand, Father testified that he is equally available and desires to spend
as much time as he can with the children, but Mother has refused him several
opportunities to do so. Father also testified that the relationship Mother is fostering
between the children and Criswell is undermining his relationship with the children.
5
According to Father, the children compare him to Criswell during Father’s parenting
time, and have “very often” referred to him as “[Criswell].” Tr. p. 42.
Conflicting evidence was presented at the hearing, such that Mother testified that
she has never called Criswell to provide care for the children or take them to
appointments without first offering that opportunity to Father. On the other hand,
testimony was presented that Mother never calls Father to allow him to pick up the
children from school or take them to appointments if she is not able to do so.
Following the hearing, the trial court took the matter under advisement and
entered its order on May 13, 2013. In light of the clear language of the parents’
agreement and the Guidelines, the trial court found Mother in willful contempt for
refusing Father parenting time during Christmas in 2012. The trial court also determined
that
The court has no doubt that the children are bonded to Mr. Criswell. He
played an important role in their lives and clearly he cares for them deeply;
however, he is not their father. Wife has allowed this relationship to
interfere with children’s primary relationship with their father. Wife is
prohibited from allowing the children to spend one on one time with Mr.
Criswell or any time with him unless she too is present (the court would
envision brief periods like dinner and/or a movie on the occasional basis).
...
Wife is in contempt for her failure to allow husband his Christma[s] holiday
visit. Husband shall be entitled to make-up that lost time by having the
children for what would normally be wife’s Memorial Day holiday
weekend.
Appellant’s App. p. 7-8 (emphasis added). Mother now appeals.
6
DISCUSSION AND DECISION
Mother argues that the trial court’s order with regard to custody and parenting
time infringed upon her constitutional rights to raise the children and chilled her
relationship with Criswell. Mother further claims that the order violated her
constitutional right to free association and due process when it determined that Criswell
may only visit the children when she is present. Mother further contends that the trial
court’s interpretation and application of the Guidelines to restrict Criswell’s contact with
the children was erroneous because there were no allegations or evidence that Mother
was unfit or that any harm or detriment was posed to the children while they were with
Criswell.
I. Standard of Review
In custody and visitation matters, foremost consideration must be given to the best
interests of the child. Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App. 1998). We
will generally reverse child visitation decisions only upon a showing of a manifest abuse
of discretion. Hanson v. Spolnik, 685 N.E.2d 71, 79 (Ind. Ct. App. 1997). We neither
reweigh the evidence nor reexamine the credibility of the witnesses. Id. Rather, we will
view the record in the light most favorable to the trial court’s decision to determine
whether the evidence and reasonable inferences therefrom support the trial court’s
decision. Id.
7
II. Mother’s Contentions
A. Infringement of Constitutional Rights
As noted above, Mother contends that the trial court’s order violated her
fundamental constitutional rights in raising her children by restricting their relationship
with Criswell because there was no showing that any harm resulted to the children.
Appellant’s Br. p. 7, 11. Mother also claims that the portion of the order regarding the
relationship restriction must be set aside because Father presented no evidence that the
children’s relationship and unsupervised time with Criswell undermined or damaged his
own relationship with the children.
In support of her contention, Mother directs us to Troxel v. Granville, where the
United States Supreme Court addressed a dispute between a parent and grandparents who
sought to obtain visitation with their grandchildren over the parent’s objection. 530 U.S.
57, 60 (2000). In Troxel, it was determined that there is a strong preference in favor of a
natural parent to have the care of his children over a third party. Id. at 65-66; see also
Guardianship of B.H., 770 N.E.2d 283, 286 (Ind. 2002) (observing that natural parents
are entitled to the custody of their minor children, except when they are unsuitable
persons to be entrusted with the care, control, and education of the children).
However, unlike the dispute in Troxel, the situation here involves two natural
parents with equal rights following the dissolution of marriage. In fact, Troxel
8
recognized that “[T]here is a presumption that fit parents act in the best interest of their
children.” Troxel, 530 U.S. at 68.
In commenting on Troxel, at least one court has recognized that
A dispute between a parent and grandparents represents a far different dynamic
than the dispute between two natural parents with equal rights after a divorce. The
grandparents in Troxel simply did not have a fundamental right to the care and
custody of the children as do the parents here. So, when the Troxel court was
speaking of fundamental rights in the raising of children, it was speaking to the
existing disparity between natural parents and grandparents.
Arnold v. Arnold, 270 Wis.2d 705, 711-12 (Wis. Ct. App. 2004). The Arnold court went
on to note that this distinction is critical in addressing due process claims in a post-
dissolution setting.
Additionally, this court observed in Kitchen v. Kitchen that
Parental rights are matters of constitutional import protected by the Fourteenth
Amendment to the United States Constitution. . . . Accordingly we adhere to the
limitation of our statutes and case law conferring standing only to parents,
grandparents and step-parents. The trial court erred in concluding that it had the
authority to grant third-party visitation to persons other than parents, step-parents,
or grandparents.
953 N.E.2d 646, 649-50 (Ind. Ct. App. 2011).
Notwithstanding these pronouncements, we are confronted with a unique situation
in light of the various provisions of Section I(C)(3) of the Guidelines, which provide that:
When it becomes necessary that a child be cared for by a person other than a
parent or a responsible household family member, the parent needing the child
care shall first offer the other parent the opportunity for additional parenting time,
if providing the child care by the other parent is practical considering the time
available and the distance between residences. The other parent is under no
obligation to provide the child care. If the other parent elects to provide this care,
it shall be done at no cost and without affecting child support. The parent
9
exercising additional parenting time shall provide the necessary transportation
unless the parties otherwise agree.
The trial court referenced Section A of the Guidelines in its order that encourages
parents to “recognize and address a child’s basic needs,” including the development . . .
of meaningful relationships with other significant adults (grandparents, stepparents and
other relatives) as long as these relationships do not interfere with or replace the child’s
primary relationship with the parents.”
Although the evidence in this case established that Criswell has developed a
positive and meaningful relationship with the children, he has no “parental right” to see
and visit with the children, but Father, of course, does. On the other hand, when applying
Section I(C)(3) of the Guidelines to the circumstances here, Criswell should be able to
interact with the children, so long as it would be in the children’s best interests to
maintain their then-existing relationship with him. There have been no allegations of
abuse or neglect against Criswell, and Dr. Ann Carlson testified at the hearing that
continuing his relationship with the children would be in their best interests. Tr. p. 79.
In light of these circumstances, we believe that Criswell should be able to continue
seeing the children so long as his relationship with them does not undermine or damage
the relationship with Father. And under Section I(C)(3) of the Guidelines, Father must
first be given the opportunity to exercise additional parenting time. That said, it is
apparent that the trial court’s order as it currently stands is too broad and restrictive and
must, therefore, be crafted to allow Criswell to maintain his relationship with the children
10
because there is no evidence that he either abused or neglected them and the evidence
showed that it was in the children’s best interest to continue that relationship. However,
the subsequent order must also reflect that Criswell’s continued relationship with the
children must not interfere with or undermine Father’s right to additional parenting time
in accordance with the Guidelines.
B. Freedom of Association
In a related issue, Mother asserts that the trial court’s order violates her right of
association because “restricting her contact with her romantic interest, absent any harm to
her children, infringed and has a chilling effect upon the Mother’s First
Amendment right to association.” Appellant’s Br. p. 11. Put another way, Mother argues
that the trial court’s “broad sweeping order” has prevented her from having any future
intimate relationship with Criswell, “while she has custody of her children.” Id. at 12.
The freedom of association “is a constitutional right which is included in the
bundle of First Amendment rights made applicable to the States by the due process clause
of the Fourteenth Amendment.” Sills v. Irelan, 663 N.E.2d 1210, 1213 (Ind. Ct. App.
1996). Notwithstanding this pronouncement, there is nothing in the trial court’s order
that prohibits or prevents Mother from associating with Criswell now or in the future. To
the contrary, Mother may associate with Criswell as often as she chooses. Appellant’s
App. p. 6-8. As a result, Mother’s suggestion that the trial court’s ruling chills her from
having “any future intimate relationship with Criswell” is misplaced and this argument
fails. Id. at 9.
11
On the other hand, this case concerns the children and, as noted above, the trial
court’s ruling restricts the children’s association with Criswell unless Mother is also
present. In that sense, we agree with Mother’s notion that the trial court’s ruling
improperly impedes upon her parenting time with the children. However, while Mother
has the freedom to associate with Criswell, that right does not trump Father’s liberty
interest in raising his children. Guardianship of B.H., 770 N.E.2d at 286.
That said, we realize that the trial court has impliedly determined from the
evidence that Criswell’s time spent with the children has detracted from the time that
Father could have spent with them. However, as discussed above, so long as Father’s
rights to additional parenting time under the Guidelines are followed and respected, we
see no reason why Criswell should not be allowed to continue his relationship with the
children unattended by Mother. In other words, because there has been no showing of
some danger or detriment to the children, there is not a legitimate basis for restricting
Mother’s fundamental right to control her children’s relationships with others. As a
result, this portion of the trial court’s order must be set aside because it is too restrictive
with regard to Criswell’s continued relationship with the children. Thus, we are
compelled to reverse this portion of the trial court’s order.3
3
Because we have already determined above from the evidence presented at the hearing that the portion
of the trial court’s order that currently restricts the children’s continued relationship with Criswell is too
broad and restrictive under the circumstances here, we need not discuss Mother’s final assertion that the
evidence was insufficient to support the trial court’s ruling.
12
The judgment of the trial court is affirmed in part, reversed in part, and remanded
with instructions that the trial court craft an order permitting the children to maintain their
relationship with Criswell and to spend unsupervised time with him because it is within
the children’s best interest to do so, and so long as that relationship does not interfere
with or impede Father’s opportunity to exercise his parenting time in accordance with the
Guidelines.
NAJAM, J., and CRONE, J., concur.
13
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559 F.2d 1217
Charlierv.S. C. Johnson & Son, Inc.
No. 76-3659
United States Court of Appeals, Fifth Circuit
9/14/77
W.D.Tex., 556 F.2d 761
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343 S.W.3d 499 (2011)
Kevin MILLER, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-10-00071-CR.
Court of Appeals of Texas, Waco.
February 23, 2011.
Rehearing Overruled May 31, 2011.
*500 Stan Schwieger, Waco, for Appellant.
Christopher E. Martin, County Atty. for Freestone County, N. Chad Morgan, Special Prosecutor, Jackson Morgan LLP, Fairfield, for Appellee.
Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS.
OPINION
TOM GRAY, Chief Justice.
Kevin Miller was convicted of the offense of criminal mischief, a state jail felony. TEX. PENAL CODE ANN. § 28.03(a)(1), (b)(4) (West Pamp. 2010). Miller was sentenced to two years in a state jail facility. The sentence was suspended, and Miller was placed on community supervision for two years. Although the evidence is legally sufficient to support the element of "cost of repair," the trial court abused its discretion is setting the amount of restitution. The appeal is remanded to the trial court for a new restitution hearing.
BACKGROUND
Although the stories of the players in this offense vary, the general account is that Miller found his estranged wife, Tonya, with another man, Jason Strawn, at Tonya's house. As Strawn attempted to leave, Miller rammed Strawn's 1989 convertible Mustang with his own vehicle, slashed the tires, and slashed the convertible top. The cost to repair the damage to *501 the Mustang was $6,299.84. At the time of the trial, the Mustang had not been repaired. The trial court ordered restitution for the damage done to the Mustang in the amount of $6,299.84.[1]
COST OF REPAIR
In his first issue, Miller contends that the evidence is legally insufficient to support the "cost of repair" element to the offense of criminal mischief. He contends the evidence submitted was legally of no effect.
A person commits the offense of criminal mischief when he intentionally or knowingly damages or destroys tangible property without the effective consent of the owner. TEX. PENAL CODE ANN. § 28.03(a)(1) (West Pamp. 2010). The amount of pecuniary loss suffered by the owner determines the degree of the offense. Id. at (b). If the property is damaged, the amount of pecuniary loss is determined by "the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred." Id. § 28.06(b) (West 2003).
Jackson v. Virginia is the constitutional standard of review for assessing the legal sufficiency of evidence in a criminal case. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.; Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim.App.2004). In applying the Jackson sufficiency review, we "must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider." Moff, 131 S.W.3d at 488 (quoting Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim. App.1988)). We consider all evidence actually admitted at trial and give it whatever weight and probative value it could rationally convey to a jury. Moff, 131 S.W.3d at 489.
At the guilt/innocence phase of the trial, the State introduced an estimate of the cost of repairing the Mustang through Bobby Ingram, the service manager at Tyler Ford. No objection was made to that document. Ingram stated that the estimate was prepared by an employee at the dealership and entered it in the dealership's computer system at the time the estimate was completed. Ingram then testified that the total cost to repair the vehicle was $6,299.84. Ingram also gave a breakdown of what the total cost included. The repair of the convertible top, a new right door, right quarter panel, and front bumper cover totaled $3,427.57. The cost for labor totaled $2,058, and paint and supplies totaled $350. New tires and their alignment totaled $146.95, and tax amounted to $311.
Relying on an opinion by the 14th Court of Appeals, Miller argues that the testimony from Ingram and the estimate introduced into evidence is insufficient to establish that damages were equal to or greater than $1,500 because expert testimony was required and the State did not prove that Ingram was an expert.[2]See English v. State, 171 S.W.3d 625 (Tex.App.-Houston [14th Dist.] 2005, no pet.). The opinion in English relied on an opinion by the First *502 Court of Appeals and an opinion by the Court of Criminal Appeals for that proposition. See Sebree v. State, 695 S.W.2d 303 (Tex.App.-Houston [1st Dist.] 1985, no pet.). See also Elomary v. State, 796 S.W.2d 191 (Tex.Crim.App.1990).
However, the Court of Criminal Appeals has recently clarified its position on Sebree and clarified what Elomary actually meant. Holz v. State, 320 S.W.3d 344 (Tex.Crim.App.2010). In Holz, the Court of Criminal Appeals stated, "upon one condition, we agreed with Sebree's holding distinguishing between evidence of `damage' and evidence of `repair cost': [I]f... an individual ... is not competent to give an expert opinion as to repair costs, but is merely giving his `off-the-wall' lay opinion, ... `an estimate of damage or an opinion on the amount of damage without further evidence is insufficient to prove the cost of repairs as required by sec. 28.06(b) of the Texas Penal Code.'" Holz, 320 S.W.3d at 348-349 (quoting Elomary, 796 S.W.2d at 193) (emphasis added). The Court went on to say that, "[u]nderstood properly, [that] statement in Elomary simply affirms the unremarkable proposition that an unsupported lay opinion as to damage, without more, will be insufficient to prove cost of repair." Id. at 350 (emphasis in original). The Court affirmed that Elomary does not hold that the State must present expert testimony to prove cost of repair.
Accordingly, the State, in this case, was not required to present expert testimony. Considering all the evidence, whether or not properly admitted, the evidence was sufficient to prove cost of repair of an amount of $1,500 or more but less than $20,000. Miller's first issue is overruled.
RESTITUTION
In his second issue, Miller complains about the amount of restitution the trial court awarded. The Texas Code of Criminal Procedure authorizes the sentencing court to order payment of restitution to the victim for losses sustained as a result of the convicted offense. TEX.CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2010). When calculating restitution in an offense that results in the damage or destruction of property, the court may order the defendant:
(A) to return the property to the owner of the property or someone designated by the owner; or
(B) if return of the property is impossible or impractical or is an inadequate remedy, to pay an amount equal to the greater of:
(i) the value of the property on the date of the damage, loss, or destruction; or
(ii) the value of the property on the date of sentencing, less the value of any part of the property that is returned on the date the property is returned.
TEX.CODE CRIM. PROC. ANN. art. 42.037(b)(1) (West Supp. 2010).
While the sentencing court is authorized to order restitution, due process requires three restrictions on the restitution a trial court may order: (1) the amount must be just and supported by a factual basis within the record, (2) the restitution ordered must be only for the offense for which the defendant is criminally responsible, and (3) the restitution ordered must be proper only for the victim or victims of the offense with which the offender is charged. Cantrell v. State, 75 S.W.3d 503, 512 (Tex.App.-Texarkana 2002, pet. ref'd); see Cabla v. State, 6 S.W.3d 543, 546 (Tex.Crim.App.1999).
Restitution ordered by the court will not be overturned on appeal absent an abuse of discretion. Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex.Crim.App. *503 1980); Maloy v. State, 990 S.W.2d 442, 444 (Tex.App.-Waco 1999, no pet.). An abuse of discretion occurs when a trial court's decision is so clearly wrong that it lies outside the "zone of reasonable disagreement." Gonzalez v. State, 117 S.W.3d 831, 839 (Tex.Crim.App.2003).
At the punishment hearing, the State asked the trial court to take judicial notice of the evidence and testimony submitted regarding damage submitted during the guilt/innocence phase of the trial. This testimony and evidence included the testimony of Ingram and the estimate of the cost of repair to the Mustang in the amount of $6,299.84. Strawn then testified at punishment that at the time of trial, and if the Mustang was in the condition it was prior to the damage, it would be worth $3,270. As noted above, restitution does not include cost of repair; it includes the value of the property on the date of the damage, or the value of the property on the date of sentencing less the value of any part of the property that is returned on the date the property is returned. TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1) (West Supp. 2010). Accordingly, the trial court abused its discretion in ordering restitution in the amount of $6,299.84.
Miller's second issue is sustained.
To remedy the trial court's abuse of discretion, Miller argues the amount of restitution should be deleted. He relies on a case from Texarkana which, in turn, relies on a case from Corpus Christi for this proposition. Wallace v. State, 75 S.W.3d 576, 583 (Tex.App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex.Crim. App.2003) (affirmed on a different issue); Botello v. State, 693 S.W.2d 528 (Tex.App.-Corpus Christi 1985, pet. ref'd). We decline to follow Wallace and Botello and choose to follow the Court of Criminal Appeals in this situation.
In Cartwright v. State, the Court of Criminal Appeals held that when the record evidence is insufficient to support the amount of restitution ordered as a condition of probation, the proper remedy is to remand the case to the trial court for a new restitution hearing. Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. 1980). Later, in Barton v. State, the Court reaffirmed the holding in Cartwright. Barton v. State, 21 S.W.3d 287, 290 (Tex.Crim.App.2000). Later still, in Beedy v. State, the Court explained that it had reached the conclusion that it had in Barton because "[t]he trial judge in Barton was authorized to order restitution" and "the only defect present was that the amount of restitution was unsupported by the record." Beedy v. State, 250 S.W.3d 107, 113 (Tex.Crim.App.2008). Had the trial judge in Barton not been authorized to order restitution, the Court explained further, the proper remedy would have been deletion of the restitution condition from the trial court's judgment. Id. In other words, the proper remedy "depends on whether the trial judge acted lawfully." Id; Barrera v. State, No. PD-1642-07, 2008 WL 4149709, 2008 Tex.Crim.App. LEXIS 857, *6-7 (Tex.Crim.App. Sept. 10, 2008), opinion withdrawn, 2008 WL 5050552, 2008 Tex.Crim.App. Unpub. LEXIS 897 (Tex.Crim.App. Nov. 26, 2008) (restitution issue did not involve restitution as a condition of community supervision; opinion withdrawn because appellant died prior to issuance of September 10, 2008 opinion).
In this case, the trial court had the authority to order restitution, or at least we presume so because no complaint has been raised about the authority of the trial court to order restitution. Thus, the proper remedy in this case, as in Cartwright and Barton, is to remand the appeal to the trial court for a new restitution hearing.
*504 CONCLUSION
Because we have sustained Miller's second issue regarding the amount of the restitution ordered, we remand this proceeding to the trial court for a new restitution hearing.
Our decision is a final decision because it disposes of all of Miller's issues. See Price v. State, 826 S.W.2d 947, 948 (Tex.Crim. App.1992) (procedure when remanding for hearing on motion for new trial); Mendoza v. State, 935 S.W.2d 501, 503-04 (Tex.App.-Waco 1996, pet. ref'd). The appellate process will start anew as to the amount of restitution, if any, after the trial court's hearing on restitution. See Bailey v. State, 160 S.W.3d 11, 15 (Tex.Crim.App. 2004) (sentence is not complete until restitution is imposed).
Justice DAVIS concurs without a separate opinion.
NOTES
[1] The written judgment recites a much greater amount of restitution. We believe this amount includes the amount of restitution ordered in the companion case tried at the same time, wherein Tonya is the victim.
[2] Miller did not object at trial that Ingram was not qualified as an expert. Any complaint about Ingram's qualifications now is waived. TEX.R.APP. P. 33.1.
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Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-12-1995
Siegel v Carrier Express
Precedential or Non-Precedential:
Docket 94-1885
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Siegel v Carrier Express" (1995). 1995 Decisions. Paper 131.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/131
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-1885
___________
SIEGEL TRANSFER, INC.; ROBIN EXPRESS
TRANSFER, INC.; JORUSS TRUCKING, INC.,
Appellants
vs.
CARRIER EXPRESS, INC.; BETHRAN, INC.;
BETHLEHEM STEEL CORPORATION
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 92-cv-07370)
___________
Argued
March 27, 1995
Before: MANSMANN, COWEN and LEWIS, Circuit Judges.
(Filed May 12, 1995)
___________
David H. Moskowitz, Esquire (ARGUED)
David H. Moskowitz & Associates
1890 Rose Cottage Lane
Malvern, PA 19355
COUNSEL FOR APPELLANTS
Nancy J. Gellman, Esquire (ARGUED)
Debra C. Swartz, Esquire
Conrad, O'Brien, Gellman & Rohn
1515 Market Street
16th Floor
Philadelphia, PA 19102
COUNSEL FOR APPELLEES
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
This case arises out of the termination of a motor
carrier contract. The plaintiffs, Siegel Transfer, Inc., Robin
Express Transfer, Inc., and Joruss Trucking, Inc., alleged that
the contract's termination and subsequent refusals to deal on the
part of the defendants, Bethlehem Steel Corporation and its
subsidiaries, Bethran, Inc. and Carrier Express, Inc., violated
section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. The
plaintiffs also charged the defendants with violations of the
Interstate Commerce Act, 49 U.S.C. § 10101 et seq., and the
Elkins Act, 49 U.S.C. §§ 11901-11903, 11915-11916, and with
several state law causes of action. The plaintiffs now appeal
the district court's decision to grant the defendants' motion for
summary judgment and motion to dismiss. The issues we address
are whether the companies in the Bethlehem Steel corporate family
and their agents were legally capable of engaging in an antitrust
conspiracy with each other, whether the plaintiffs had a private
right of action under the federal transportation statutes, and
whether the defendants breached the parties' agreement.
In the wake of the Supreme Court's decision in
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984),
we hold that the defendants were legally incapable of conspiring
with one another or with their agents. We also find that neither
the Interstate Commerce Act nor the Elkins Act authorizes the
plaintiffs to file a private cause of action in a federal court.
Finally, we conclude that the defendants are not liable for
breach of contract. Thus, we will affirm the judgment of the
district court.
I.
We begin our analysis by reviewing the evidence
presented in this case. In considering a motion for summary
judgment, a court does not resolve factual disputes or make
credibility determinations, and must view facts and inferences in
the light most favorable to the party opposing the motion. Big
Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358,
1363 (3d Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1262
(1993).
Siegel Transfer, Robin Express, and Joruss Trucking
were owned by Russell Siegel and his wife, and were based in
Sparrows Point, Maryland. Siegel Transfer, a motor contract
carrier,1 hauled steel, lumber, telephone poles and heavy
1
. Under the Interstate Commerce Act, motor carriers fall
into two defined categories: motor common carriers and motor
contract carriers:
§ 10102. Definitions
In this subtitle --
(14) "motor common carrier" means a person
holding itself out to the general public to
provide motor vehicle transportation for
compensation over regular or irregular
routes, or both.
(15) "motor contract carrier" means --
(A) a person, other than a motor
common carrier, providing motor vehicle
transportation of passengers for
equipment for various shippers; Robin Express leased trucks,
trailers and drivers to Siegel Transfer and other carriers; and
Joruss Trucking also leased trucks to Siegel Transfer.
In 1985, Bethlehem Steel made plans to acquire two
motor carriers, Bethran and Carrier Express, through its
subsidiary, the Philadelphia Bethlehem and New England Railroad.
While Bethlehem Steel did not anticipate that it would satisfy
all of its transportation needs by acquiring these carriers, it
hoped to capture at least a portion of the revenue it was paying
to outside truckers.
(..continued)
compensation under continuing
agreements with a person or a limited
number of persons---
(i) by assigning motor vehicles
for a continuing period of time
for the exclusive use of each
such person; or
(ii) designed to meet the
distinct needs of each such
person; and
(B) a person providing motor vehicle
transportation of property for
compensation under continuing
agreements with one or more persons--
(i) by assigning motor vehicles
for a continuing period of time
for the exclusive use of each
such person; or
(ii) designed to meet the
distinct needs of each such
person.
49 U.S.C. § 10102(14),(15).
Because section 11341 of the Interstate Commerce Act
gives the Interstate Commerce Commission exclusive authority to
oversee acquisitions of this type, Bethlehem and the Railroad
filed a petition, requesting permission to acquire control2 of
Bethran and Carrier Express, without having to engage in the
Commission's prior approval process. Section 11343(e) authorizes
the Commission to exempt an acquisition from regulatory oversight
if it finds that regulation is not necessary to carry out the
transportation policy of the Act,3 and the acquisition is limited
in scope or unlikely to result in an abuse of market power. 49
U.S.C. § 11343(e). Finding that the proposed acquisition met
these criteria, the Commission exempted it from the Act's prior
approval requirements. Under section 13341, the Commission's
exemption not only authorized the parties to proceed with the
acquisition, but immunized it from the antitrust laws as well.
49 U.S.C. § 13341. Once the acquisition was finalized, Bethlehem
Steel owned 99.92% (8,993 of 9,000 shares) of the Railroad's
2
. The Act defines "control" in pertinent part as "actual
control, legal control, and the power to exercise control,
through or by (A) common directors, officers, stockholders, a
voting trust, or a holding or investment company, or (B) any
other means." 49 U.S.C. § 10102(7).
3
. The Act aims to recognize and preserve the inherent
advantages of various modes of transportation; promote safe,
economical and efficient transportation; encourage sound economic
conditions among carriers; encourage the establishment and
maintenance of reasonable rates without unreasonable
discrimination or unfair or destructive competitive practices;
coordinate federal and state efforts on transportation matters;
and encourage fair wages and working conditions in the
transportation industry. 49 U.S.C. § 10101.
stock;4 the Railroad owned 100% of Bethran's stock; and Bethran
owned 100% of Carrier Express' stock.
Carrier Express, already a licensed common and contract
carrier, obtained broker authority from the Commission.
Organized to operate without exit barriers, Carrier Express did
not hire employees, acquire equipment or engage its own drivers.
Instead, it used commissioned, non-exclusive agents in different
parts of the country to make arrangements with owner-operators or
with other carriers who had access to trucks and drivers to carry
the freight it was under contract to transport. The agents made
hauling arrangements with whomever Carrier Express authorized to
transport its freight.
Carrier Express operations were managed by Oak
Management, Inc. Under the parties' contract, Oak Management
oversaw all of Carrier Express' day-to-day functions and received
a percentage of Carrier Express' revenues as payment for its
services. Thomas Rediehs, a Vice President of Carrier Express,
was the owner and President of Oak Management, and Kermit Bryan
was Oak Management's Executive Vice President.
Oak Management also managed the operations of Rediehs
Express, a motor common carrier, motor contract carrier and
broker. Rediehs' wife and children owned Rediehs Express, and
Bryan was its Operations Manager. Rediehs Express hauled
4
. The seven shares of stock that Bethlehem Steel did not
own were issued in the name of the Railroad's current officers,
and could not be sold or transferred. Whenever the Railroad
replaced an officer, the stock was reissued in the new officer's
name.
Bethlehem Steel products from Bethlehem Steel's plant located in
Burns Harbor, Indiana, and did some business with Carrier
Express.
Under its motor contract carrier operating authority,
Carrier Express entered into a contract dated January 15, 1986
with Bethlehem Steel, agreeing to transport Bethlehem Steel goods
at given rates. In July, 1988, a contract between Bethlehem
Steel and Bethran was assigned to Carrier Express,5 which
obligated Carrier Express to refund to Bethlehem Steel a sum
equal to 5% of the total revenue it received for transporting
Bethlehem Steel freight.
In late 1985, Siegel Transfer, Carrier Express and
"Bethran doing business as Carrier [Express]" executed a
"Contract for Transportation of Property Between A Motor Carrier
Broker [Carrier Express] and a Motor Contract Carrier [Siegel
Transfer] In Accordance With the Provisions of 49 C.F.R. 1053."
The contract took effect on January 4, 1986, and after an initial
term of three years, remained in effect from year to year,
subject to the right of either party to terminate upon thirty
days' written notice. Under the contract, Carrier Express was
obligated to offer Siegel Transfer a minimum of 30,000 pounds of
authorized commodities per year for transport and to pay Siegel
Transfer 90% of the freight rate received by Carrier Express from
the shipper. Russell Siegel was named a Carrier Express agent
for the Baltimore area and agreed to receive a 6% commission from
5
. In July, 1988, Bethran ceased motor carrier operations.
Carrier Express on the loads he arranged for shipment by
companies other than Siegel Transfer.
While the contract was in effect, Siegel Transfer
transported Bethlehem Steel goods received from Carrier Express
almost exclusively out of Bethlehem Steel's Sparrows Point plant.
As to the Bethlehem Steel freight offered by Carrier Express to
Siegel Transfer for transport, the 5% refund that Carrier Express
owed to Bethlehem Steel was paid from the 10% of the freight rate
Carrier Express retained, not from the 90% of the freight rate
that Siegel Transfer was paid.
In 1988, while carrying freight received from Carrier
Express, a Siegel Transfer vehicle was involved in a serious
accident in Alabama. Joined in the lawsuit which followed,
Carrier Express paid a substantial sum of money to settle the
claims brought against it. That same year, another Siegel
Transfer vehicle was involved in another serious accident in
Georgia. In December of 1989, Carrier Express was temporarily
suspended from transporting goods for Bethlehem Steel because
Siegel Transfer had violated Bethlehem Steel's loading and weight
limit rules.
James C. Matthews, Vice-President of Carrier Express
and Bethran, was aware of and concerned about these incidents.
In 1989, Matthews decided to terminate Carrier Express' contract
with Siegel Transfer. This decision was based, according to
Matthews, on his unwillingness to expose Carrier Express to the
continued risks of doing business with Siegel Transfer. Matthews
spoke of his intention to terminate the contract with Carl
Eckenrode, the President of Bethran, Carrier Express and the
Railroad, and a Bethran director; Steven Mollman, Bethran's
operations manager and one of its directors; and William Van
Heel, a district transportation manager of Bethlehem Steel and a
Bethran director. Additionally, Matthews informed Rediehs and
Bryan of his decision. Believing that Carrier Express would not
be able to find owner-operators or carriers to perform the
hauling that Siegel Transfer was handling and would, therefore,
suffer a loss of revenue and profit, Rediehs argued against the
termination.
Matthews, Rediehs, Bryan and Van Heel convened on
January 4, 1990 at Bethlehem Steel's Sparrows Point plant to
inform Siegel that Carrier Express' contract with Siegel Transfer
was terminated. Prior to their speaking personally with Siegel,
Rediehs again voiced his opposition to the termination.
Matthews, however, refused to alter his decision. Consequently,
when Siegel arrived at the meeting, he was told of the
termination, and later that day, received written notice from
Matthews.
During the thirty-day notice period which followed,
Carrier Express offered Siegel Transfer over 600,000 pounds of
freight to transport. At Carrier Express' direction, Oak
Management commenced instructing Carrier Express agents that the
contract with Siegel Transfer had been terminated and that Siegel
Transfer was no longer authorized to carry Carrier Express
freight. As an accommodation to Carrier Express, Oak Management
assumed responsibility for the Baltimore Carrier Express agency
at a 4% commission rate, but only reluctantly, expecting that the
agency would be unprofitable. Just as Rediehs had anticipated,
Carrier Express was unable to find trucks to replace those that
Siegel Transfer had made available; the amount of freight that
Carrier Express transported out of Sparrow Point decreased and
its revenues declined. Oak Management, in turn, suffered a
financial loss. Moreover, Oak Management lost money as Carrier
Express' Baltimore agent and relinquished the position in 1991.
Shortly after the contract's termination, Robin Express
leased all of its trucks and drivers to Ligon Nationwide, a
trucking company of substantial size. Under the arrangement with
Ligon Nationwide, which lasted for approximately one year, Robin
Express trucks were used to transport freight for several
shippers, including Bethlehem Steel. During this time, one of
the Bethlehem Steel district transportation superintendents, for
whom Siegel Transfer's safety record was unacceptable, advised an
agent for Glass Container, a motor carrier, not to use Siegel
equipment to haul products from the Bethlehem Steel rod mill
located in Sparrows Point.
In February, 1990, Siegel Transfer relinquished its
contract carrier operating authority and ceased doing business;
Joruss Trucking suspended operations in July, 1990. In November
1990, Robin Express entered into lease agreements with other
truckers, who used Robin Express trucks and drivers to carry
loads for Bethlehem Steel and a number of other shippers. Unable
to secure a sufficient amount of business, however, Robin Express
ceased to operate in 1991.
On December 23, 1992, Siegel Transfer, Robin Express
and Joruss Trucking commenced this action against Carrier
Express, Bethran and Bethlehem Steel. On February 15, 1994, the
plaintiffs filed an Amended Complaint, asserting two federal
causes of action, one under section 1 of the Sherman Act, 15
U.S.C. § 1 (Count I), and the other under the Interstate Commerce
Act, 49 U.S.C. § 10101 et seq., and the Elkins Act, 49 U.S.C. §§
11901-11903, 11915-11916 (Count XI), as well as several state law
claims: violations of the Maryland Antitrust Act (Count II),
breach of contract (Counts III and IV), breach of the implied
covenant of good faith (Counts VII and VIII), promissory estoppel
(Count VI) and civil conspiracy (Count XI).
On March 21, 1994, the defendants filed a motion to
dismiss the plaintiffs' Interstate Commerce Act and Elkins Act
claims or, in the alternative, to refer them to the Interstate
Commerce Commission, and a motion for summary judgment on the
plaintiffs' other claims. On July 1, 1994, the district court
dismissed the federal transportation law claims, concluding that
neither the Interstate Commerce Act nor the Elkins Act gave the
plaintiffs a private right of action. Siegel Transfer, Inc. v.
Carrier Express, Inc., 856 F. Supp. 990, 1002-05 (E.D. Pa. 1994).
The court also granted summary judgment in the defendants' favor
on the plaintiffs' remaining claims, with the exception of Count
VI for promissory estoppel.6 On the antitrust and civil
conspiracy claims, the court concluded that the plaintiffs failed
to show that "two or more economic actors" conspired against
them, applying the Supreme Court's decision in Copperweld Corp.
v. Independence Tube Corp., 467 U.S. 752 (1984). 856 F. Supp. at
995-1002, 1005, 1009. As to the contract and implied duty of
good faith claims, the court rejected the plaintiffs' theory of
breach, finding it contrary to the clear and unambiguous language
of the parties' agreement. Id. at 1005-06, 1008-09.
On August 22, 1994, judgment was entered for the
defendants, and on September 8, 1994, the plaintiffs filed an
appeal. We will first address the federal antitrust issues this
appeal raises, the federal transportation law issues second, and
the state law questions third.
II.
Summary judgment may present the district court with an
opportunity to dispose of meritless cases and avoid wasteful
trials. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1985).
This is true even in antitrust cases "where motive and intent
play leading roles, proof is largely in the hands of alleged
conspirators, and hostile witnesses thicken the plot." Big Apple
6
. Finding genuine issues of disputed fact, the district
court denied the defendants' motion for summary judgment as to
the promissory estoppel claim. Siegel Transfer, Inc. v. Carrier
Express, Inc., 856 F. Supp. 990, 1007-08 (E.D. Pa. 1994). On
August 22, 1994, a stipulation and order dismissing this claim
without prejudice was entered.
BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362 (3d
Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1262 (1993),
quoting Pollar v. Columbia Broadcasting System, Inc., 368 U.S.
464, 473 (1962).
Summary judgment must be granted where no genuine issue
of material fact exists for resolution at trial and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). On summary judgment, the moving party need not
disprove the opposing party's claim, but does have the burden to
show the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 323. If the movant meets this burden, then
the opponent may not rest on allegations in pleadings, but must
counter with specific facts which demonstrate that there exists a
genuine issue for trial. Id. As in this case, when the
nonmoving party will bear the burden of proof at trial, the
moving party may meet its burden by showing that the nonmoving
party has not offered evidence sufficient to establish the
existence of an element essential to its case. Id. at 322. We
remain mindful that in ruling on a motion for summary judgment, a
court must assess the material facts against the proof required
of the plaintiff on substantive issues.
III.
Section 1 of the Sherman Act provides in pertinent part
that "[e]very contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce . . .
is declared to be illegal." 15 U.S.C. § 1. For a section 1
claim under the Sherman Act, "a plaintiff must prove `concerted
action,' a collective reference to the `contract . . .
combination or conspiracy.'" Big Apple, 974 F.2d 1364, quoting
Bogosian v. Gulf Oil Corp., 561 F.2d 434, 445 (3d Cir. 1977),
cert. denied, 434 U.S. 1086 (1978). "Unilateral action, no
matter what its motivation, cannot violate [section] 1." Edward
J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 110 (3d
Cir. 1980), cert. denied, 451 U.S. 911 (1981). A "`unity of
purpose or a common design and understanding or a meeting of the
minds in an unlawful arrangement' must exist to trigger section 1
liability." Copperweld, 467 U.S. at 771, quoting American
Tobacco Co. v. United States, 328 U.S. 781, 810 (1946). Proof of
concerted action requires evidence that two or more distinct
entities agreed to take action against a plaintiff. Weiss v.
York Hospital, 745 F.2d 786, 813 (3d Cir. 1984), cert. denied,
470 U.S. 1060 (1985).
Here the plaintiffs assert that Bethlehem Steel,
Bethran and Carrier Express, with several unnamed co-
conspirators, combined to eliminate the plaintiffs and stifle
competition among motor contract carriers transporting steel
products in the traffic lanes out of and back to Bethlehem
Steel's Sparrow Point plant. While it is difficult to derive
from the plaintiffs' pleadings and proof who participated in a
conspiracy to achieve this goal, we understand them to contend
that the companies in the Bethlehem Steel corporate family joined
with Oak Management to terminate the Carrier Express contract
with Siegel Transfer, and thereafter, enlisted assistance from
Oak Management, Thomas Rediehs, Kermit Bryan, Carrier Express
field agents, other motor carrier agents, and Rediehs Express to
deny them the opportunity to haul products for Bethlehem Steel.
The plaintiffs' evidence of concerted action with regard to
contract termination is the meeting the representatives of
Bethlehem Steel, Bethran, Carrier Express and Oak Management held
on January 4, 1990 to inform Russell Siegel that Siegel
Transfer's contract with Carrier Express would not be renewed;
their evidence of a concerted refusal to deal are the post-
termination contacts Oak Management had with Carrier Express
agents to advise them that Siegel Transfer was no longer
authorized to haul Carrier Express freight, and the directive
from a Bethlehem Steel district transportation superintendent to
a Glass Container agent not to use Siegel equipment to transport
Bethlehem Steel goods. The plaintiffs also contend that the 5%
refund Carrier Express paid to Bethlehem Steel is a per se
violation of the Sherman Act.
Before we evaluate the plaintiffs' evidence, we will
address the threshold issue of conspiratorial capacity in order
to determine who among the defendants and their alleged co-
conspirators, if anyone, could participate in an antitrust
conspiracy.
Until the Supreme Court's decision in Copperweld Corp.
v. Independence Tube Corp., 467 U.S. 752 (1984), related
corporations were generally perceived as separate entities
capable of concerted activity, a view which came to be known as
the "intra-enterprise conspiracy" doctrine. Id. at 759. In
Copperweld, however, the Supreme Court considered whether a
parent company and its wholly owned subsidiary are legally
capable of conspiring with one another under section 1 of the
Sherman Act, and determined that they are not. Id. at 759-77.
The fundamental question the Court confronted was whether an
agreement between a parent and its wholly owned subsidiary
represents the conduct of one economic actor or two.
In its opinion, the Court acknowledged that the Sherman
Act contains a basic distinction between concerted and
independent action, and discussed the reason why Congress chose
to treat concerted behavior more strictly:
Concerted activity inherently is fraught with
anticompetitive risk. It deprives the
marketplace of the independent centers of
decisionmaking that competition assumes and
demands. In any conspiracy, two or more
entities that previously pursued their own
interests separately are combining to act as
one for their common benefit. This not only
reduces the diverse directions in which
economic power is aimed but suddenly
increases the economic power moving in one
particular direction.
Id. at 768-69.
The Court then noted that although "[n]othing in the
literal meaning of [the] terms [of section 1] excludes
coordinated conduct among officers or employees of the same
company", it is obvious that an "internal `agreement' to
implement a single firm's policies does not raise the antitrust
dangers that [section] 1 was designed to police." Id. at 769
(emphasis in original).
Recognizing that section 1 is not violated by the
internally coordinated conduct of a corporation and one of its
unincorporated divisions because such conduct is essentially
undertaken by one economic actor pursuing a single firm's
interests and goals, the Court stated:
Although this Court has not previously
addressed the question, there can be little
doubt that the operations of a corporate
enterprise organized into divisions must be
judged as the conduct of a single actor.
. . . A division within a corporate
structure pursues the common interests of the
whole rather than interests separate from
those of the corporation itself . . . .
Because coordination between a corporation
and its division does not represent a sudden
joining of two independent sources of
economic power previously pursuing separate
interests, it is not an activity that
warrants § 1 scrutiny.
Id. at 770-71 (footnote omitted).
Similarly, the Court concluded that given the control a
parent wields over its wholly owned subsidiary, these parties
always share a "unity of purpose or a common design", and thus,
cannot engage in section 1 concerted activity:
A parent and its wholly owned subsidiary have
a complete unity of interest. Their
objectives are common, not disparate; their
general corporate actions are guided or
determined not by two separate corporate
consciousnesses, but one. . . . If a parent
and a wholly owned subsidiary do "agree" to a
course of action, there is no sudden joining
of economic resources that had previously
served different interests, and there is no
justification for § 1 scrutiny. . . .
[I]n reality a parent and a wholly owned
subsidiary always have a "unity of purpose or
a common design." They share a common
purpose whether or not the parent keeps a
tight rein over the subsidiary; the parent
may assert full control at any moment if the
subsidiary fails to act in the parent's best
interests.
Id. at 771-72 (footnote omitted)(emphasis in original).
Although the Court limited its holding to the case of a
parent and wholly owned subsidiary, it nonetheless encouraged the
courts to analyze the substance, not the form, of economic
arrangements when faced with allegations of intra-corporate
conspiracies:
The intra-enterprise conspiracy doctrine
looks to the form of an enterprise's
structure and ignores the reality. Antitrust
liability should not depend on whether a
corporate subunit is organized as an
unincorporated division or a wholly owned
subsidiary. A corporation has complete power
to maintain a wholly owned subsidiary in
either form. The economic, legal, or other
considerations that lead corporate management
to choose one structure over the other are
not relevant to whether the enterprise's
conduct seriously threatens competition.
Id. at 772-73 (footnote omitted).
IV.
A.
We turn now to examine the evidence proffered by the
plaintiffs in response to the defendants' motion for summary
judgment and their supporting evidence.
1. The Alleged Conspiracy Among the Bethlehem Steel
Companies
It is undisputed that, with the exception of the
Railroad, the Bethlehem Steel companies were wholly owned by the
parent company. Although Bethlehem Steel did not own .08% of the
Railroad's stock, the difference between its 99.92% ownership and
the 100% ownership in Copperweld is de minimus. See Satellite
Financial Planning Corp. v. First Nat'l. Bank, 633 F. Supp. 386,
395 (D. Del.), aff'd on reconsideration, 643 F. Supp. 449 (1986)
(the de minimus difference between 99% plus ownership and 100%
ownership does not diminish Copperweld's applicability).7 The
plaintiffs have not shown why an absolute rule of 100% ownership
must be applied in this case.8
Moreover, it is also beyond dispute that Bethlehem
Steel, with 8,993 of the Railroad's 9,000 outstanding shares of
7
. The courts have not only applied Copperweld in cases
involving de minimus deviations from 100% ownership, but have
also extended its principles to situations where parental
ownership was in the 80% to 91.9% range. Stephen Calkins,
Copperweld in the Courts: The Road to Caribe, 63 Antitrust L.J.
345, 351-41 (1995) (reviewing and commenting on the several
categories of judicial treatment of Copperweld).
8
. The plaintiffs argue that the mere fact that Bethlehem
Steel did not wholly own the Railroad requires that we reject
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984),
and instead, seek guidance from the Supreme Court's decision in
United States v. Yellow Cab Co., 332 U.S. 218 (1947). In
Copperweld, the Supreme Court suggested that Yellow Cab may stand
"for a narrow rule based on the original illegality of the
affiliation" between a parent and its subsidiary. 467 U.S. at
762 n. 6. Even this "narrow rule" does not apply: the
plaintiffs did not challenge Bethlehem Steel's original
acquisition of Bethran and Carrier Express on antitrust grounds;
nor do they challenge it here. We note, also, that the
Interstate Commerce Commission's order exempting the original
acquisition from regulation immunized it from the antitrust laws.
See supra, page 5.
stock, had complete control over the Railroad,9 as well as over
Bethran and Carrier Express. Hence, these companies were, in
substance, one economic unit, incapable of an antitrust
conspiracy under Copperweld. See Advanced Health-Care Services,
Inc. v. Radford Community Hosp., 910 F.2d 139, 146 (4th Cir.
1990) (under Copperweld, two subsidiaries wholly owned by the
same parent are legally incapable of conspiring with one another
for purposes of section 1); Century Oil Tool, Inc. v. Production
Specialties Inc., 737 F.2d 1316 (5th Cir. 1984) (under
Copperweld, separate corporations commonly owned by three men,
two of whom owned 30% of each corporation and one of whom owned
the remaining 40% of each corporation, were incapable of an
antitrust conspiracy).
The plaintiffs contend, without citation to authority,
that the Interstate Commerce Act does not legally permit a parent
company shipper to control the affairs of a motor carrier
subsidiary and requires that a parent shipper and its carrier
subsidiary conduct their affairs independently of each other.
The Act, however, neither prohibits such control nor requires
such independence. To the contrary, the Act specifically permits
a shipper to acquire control of a motor carrier in appropriate
9
. The defendants correctly point out that Bethlehem Steel
ultimately determined who held the seven shares it did not own.
Since the Railroad was a Pennsylvania corporation, under
Pennsylvania's corporation law, Bethlehem Steel, as the
Railroad's controlling shareholder, selected the Railroad's
directors. The directors, in turn, appointed the Railroad's
officers, in whose names the seven shares were issued. 15 Pa.
C.S.A. §§ 1502(a)(16), 1721, 1725(a).
circumstances, 49 U.S.C. § 11343, and in this case, the
Interstate Commerce Commission sanctioned such control when it
permitted Bethlehem Steel and the Railroad to acquire Bethran and
Carrier Express.10
We thus hold that the companies in the Bethlehem Steel
corporate family lacked the capacity to conspire with one another
under section 1 of the Sherman Act.
2. The Alleged Conspiracy Among the Bethlehem Steel
Companies, Oak Management, Rediehs, Bryan and Carrier
Express Agents
The plaintiffs also assert that a number of unnamed co-
conspirators joined with one another and with the Bethlehem Steel
companies in various combinations to restrain trade. We start
with allegations which suggest that Thomas Rediehs, as an officer
of Oak Management, and Kermit Bryan, as one of its employees,
conspired with each other or with the company. In Copperweld the
Court made clear that section 1 does not capture coordinated
activity among the employees and officers of the same firm or
police "internal agreements" between a corporation and these
10
. The plaintiffs further maintain that Copperweld is
rendered inapplicable by a commitment in the petition Bethlehem
Steel and the Railroad filed with the Commission to operate
Bethran and Carrier Express separately, and by the Commission's
order granting the petition on the "specifically-stated
condition" of separate operation. Not only is the plaintiffs'
characterization of the petition and the Commission's order
plainly incorrect, but more importantly, under Copperweld, the
control a parent corporation exercises over its subsidiary is
relevant, not whether a parent operates the subsidiary
separately.
individuals. Copperweld, 467 U.S. at 769; Tunis Bros. Co. v.
Ford Motor Co., 763 F.2d 1482, 1496 & n.21 (3d Cir. 1985) ("A
corporation can act only through its agents, thus the acts of
corporate directors, officers, and employees on behalf of the
corporation are the acts of the corporation and a corporation
cannot conspire with itself."), vacated and remanded, 475 U.S.
1105 (1986), reinstated, 823 F.2d 49 (1987), cert. denied, 484
U.S. 1060 (1988).
We turn next to the plaintiffs' theory that a
conspiracy existed among Carrier Express, its agents in the
field, and Oak Management, and must determine whether a corporate
principal and its agents should be treated as one enterprise or
two. On another occasion, we were faced with a similar inquiry.
In Weiss v. York Hospital, 745 F.2d 786 (3d Cir. 1984), cert.
denied, 470 U.S. 1060 (1985), an osteopathic physician brought,
both individually and as a class representative, an antitrust
action under, inter alia, section 1 of the Sherman Act against
the York Hospital, the York Medical and Dental Staff and ten
individual physicians, alleging, inter alia, that the defendants
had conspired to deny him staff privileges. Following trial, the
jury found that only the staff had conspired against the
plaintiff class. Upholding the jury's verdict in this regard, we
held that the medical staff, comprised of individual, competing
doctors, satisfied the plurality requirement of section 1, but
that the staff as an entity, "operat[ing] as an officer of a
corporation . . . [and having] no interest in competition with
the hospital", could not conspire with the hospital when making a
staff privilege decision. Id. at 817.
In Pink Supply Corp. v. Hiebert, Inc., 788 F.2d 1313
(8th Cir. 1986), the Court of Appeals for the Eighth Circuit held
that certain types of corporate agents, even if separately
incorporated, are not capable of conspiring with their principal
where their relationship necessarily involves a unity of economic
interest and design. There, a dealer in office furniture
manufactured by Hiebert whose dealership had been terminated
commenced a section 1 antitrust action against Hiebert and four
of its sales representatives, alleging a price-fixing and boycott
conspiracy. At all relevant times, the sales representatives
served as commissioned sales agents for Hiebert, generating
business for the manufacturer by persuading potential customers
to select the Hiebert line. They did not set prices, arrange
terms of sales or accept orders, and did not compete in any sense
with Hiebert or its dealers. Viewing the sales representatives
as corporate agents who performed the tasks of employees and
noting that they were an integral part of the corporate entity,
the court concluded that Hiebert and the sales agents were so
closely intertwined in economic interest and purpose as to amount
to a unified economic consciousness incapable of an antitrust
conspiracy. Id. at 1316.
When we examine the economic substance of the
affiliation between Carrier Express and its agents in the field,
as Copperweld instructs we must, we find a similar unity of
interest and purpose. The agents, whose only function was to
make arrangements for the transport of Carrier Express freight
with authorized carriers, did not compete with Carrier Express.
As the conduit between Carrier Express and those with trucking
equipment and drivers, the agents were an essential part of
Carrier Express operations. Because the agents received a
commission from Carrier Express based on the loads they arranged
for the company to transport, the parties' economic interests
were entirely congruent. In our view, therefore, Carrier Express
and its agents represented a single enterprise.
We reach the same conclusion when we consider the
relationship between Carrier Express and Oak Management. As
Carrier Express did not have employees of its own, it used Oak
Management to handle its day-to-day operations. Contractually
obligated to manage Carrier Express affairs, Oak Management was,
in effect, an inseparable part of Carrier Express' structure.
Since its fee was a percentage of Carrier Express' revenue, Oak
Management's economic well being was directly tied to Carrier
Express' success. Oak Management did not compete with Carrier
Express; instead, it stood to gain or lose from overseeing
Carrier Express operations in an economical and efficient manner,
as did Carrier Express itself. Hence, Carrier Express and Oak
Management constituted one economic unit. Thus we hold that Oak
Management and the Carrier Express agents could not conspire with
Carrier Express or with each other under section 1, or for that
matter, with Bethran or Bethlehem Steel.
B.
Our inquiry into the possibility of a conspiracy
between Carrier Express and Oak Management, however, does not end
here. The plaintiffs argue that even if Carrier Express and Oak
Management were part of a single enterprise, they were capable of
conspiring to terminate Siegel Transfer's contract with Carrier
Express because Oak Management's representatives, Thomas Rediehs
and Kermit Bryan, each had an interest in Rediehs Express.11 The
plaintiffs further maintain that Rediehs and Bryan were motivated
to agree to the contract's termination so that Oak Management
could replace Russell Siegel as Carrier Express' Baltimore agent.
These arguments call into question the exception to the
general rule that a corporation cannot conspire with its
employees, officers or agents that we and other courts of appeal
have recognized.12 In Johnston v. Baker, 445 F.2d 424, 427 (3d
Cir. 1971), we concluded that a corporation can conspire with its
agent where the agent acts for "personal reasons."13 Although
11
. The plaintiffs do not allege that Rediehs Express
itself, through Thomas Rediehs, Kermit Bryan or any other person,
participated in this alleged restraint. They contend only that
by virtue of Rediehs' and Bryan's respective interests in Rediehs
Express, Oak Management was a separate entity with separate
interests, capable of conspiring with Carrier Express.
12
. In Copperweld, the Supreme Court observed without
comment that "many courts have created an exception for corporate
officers acting on their own behalf." 467 U.S. at 769-70 n.15,
citing, inter alia, Johnston v. Baker, 445 F.2d 424 (3d Cir.
1971).
13
. In Weiss v. York Hospital, 745 F.2d 786 (3d Cir. 1984),
cert. denied, 470 U.S. 1060 (1985), we noted the exception but
did not have occasion to discuss it. Id. at n.43. We again
noted the exception in Tunis Bros. Co. v. Ford Motor Co., 763
F.2d 1482, 1496-97 (3d Cir. 1985), vacated and remanded, 475 U.S.
1105 (1986), reinstated, 823 F.2d 49 (1987), cert. denied, 484
the Court of Appeals for the Eighth Circuit, in Morton Bldgs. of
Neb. Inc. v. Morton Bldgs., Inc., 531 F.2d 910, 917 (8th Cir.
1976), held that the exception arises "when the officers or
agents were, at the time of the conspiracy, acting beyond the
scope of their authority or for their own benefit", the Court of
Appeals for the Fourth Circuit, in Greenville Pub. Co. v. Daily
Reflector, Inc., 496 F.2d 391, 399 (4th Cir. 1974), determined
that the exception "may be justified when the officer has an
independent personal stake in achieving the corporation's illegal
objective."
Over time, however, the exception expanded and came
under criticism for threatening to swallow the general rule.
Oksanen v. Page Memorial Hosp., 945 F.2d 696, 705 (4th Cir.
1991), cert. denied, 502 U.S. 1074 (1992). See Nurse Midwifery
Assoc. v. Hibbett, 918 F.2d 605, 613 (6th Cir. 1990), modified by
927 F.2d 904, cert. denied, 502 U.S. 952 (1991) (declining to
adopt the "independent personal stake" exception for substantial
policy reasons); 7 PHILLIP E. AREEDA, ANTITRUST LAW, ¶ 1471d&g
(1986). Accordingly, our sister courts refined the exception to
insure that it is appropriately applied. In Pink Supply Corp. v.
Hiebert, Inc., for example, when the plaintiff raised the
exception, contending that one of Hiebert's sales representatives
recommended that its dealership be terminated so as to control
dealer pricing and bolster his own credibility, the Eighth
(..continued)
U.S. 1060 (1988), but because the factual issues relating to the
exception were unresolved, we remanded the case to the district
court for trial without analyzing the exception further.
Circuit refused to apply the exception, finding an absence of
evidence in the record that the representative secured a direct
financial gain from the plaintiff's elimination from the Hiebert
organization:
Our decisions have required more than mere
speculation regarding the benefit to an agent
to be realized from participation in a
conspiracy with the principal. . . .
Hiebert's sales representatives derived no
financial benefit from the elimination of
Pink Supply from the Hiebert organization.
We construe "for the agent's own benefit" to
mean at least an economic stake in the gain
to be realized from the anticompetitive
object of the conspiracy.
788 F.2d at 1318 (footnote omitted).
In Oksanen v. Page Memorial Hosp., an antitrust action
arising out of the revocation of medical staff privileges, the
plaintiff argued that even if a hospital and its medical staff
were considered part of the same enterprise and incapable of
conspiring, the exception applied because the individual doctors
on the staff had personal stakes in the outcome of the peer
review process. Addressing the plaintiff's argument, the Fourth
Circuit expressly declined to extend the exception beyond the
rationale underlying its prior decision in Greenville, where the
president of the defendant company had a financial interest in a
firm that competed with the plaintiff and the power to control
the defendant's decisions. Oksanen, 945 F.2d at 705. The court
of appeals thus examined whether the staff included members who
directly benefitted from the plaintiff's elimination as a
competitor, and whether the staff caused the hospital to engage
in the alleged restraint. Id. at 705-06. Finding that neither
of these criteria was met, the court concluded that the general
rule, and not the exception, controlled. Id.14
In our view, in order for the concept of a conspiracy
between a principal and an agent to apply in the antitrust
context, the exception to the general rule should arise only
where an agent acts to further his own economic interest in a
marketplace actor which benefits from the alleged restraint, and
14
. In his antitrust treatise, Professor Phillip E. Areeda
opines that the exception should, as a general proposition, only
capture an employee's pursuit of an outside interest which
competes with the plaintiff. To do otherwise, Professor Areeda
maintains, would be unwise given the varied personal interests
that may motivate employees to act for themselves. 7 PHILLIP E.
AREEDA, ANTITRUST LAW § 1471e2 & n.27 (1986).
Professor Areeda also states that if an employee cannot
cause the employer to engage in the restraint, an independent
interest on his part is largely irrelevant to an antitrust
analysis:
[T]he employee's "personal stake" bears on
antitrust policy, if at all, only if it
brings about an alleged restraint by his
employer that would not otherwise have
occurred. The employer's self-interest may
have been insufficient to induce the alleged
restraint in the absence of the "conspiring"
employee's independent interest. The
employee's independent interest is simply
irrelevant to an employer act that would have
occurred without regard to it.
Thus, the premise for finding an
employer-employee conspiracy is that an
employee's personal stake causes the employer
to adopt a restraint that would not otherwise
have been adopted by the employer in his own
self-interest.
Id. at § 1471d1.
causes his principal to take the anticompetitive actions about
which the plaintiff complains. In this way, the exception
captures agreements that bring together the economic power of
actors which were previously pursuing divergent interests and
goals, the type of activity that section 1 was intended to
oversee. Copperweld, 467 U.S. at 752.
Our review of the record confirms that the exception as
we have defined it does not apply in this case. With regard to
the respective interests that Rediehs and Bryan had in Rediehs
Express, the plaintiffs did not offer any evidence to show that
Rediehs Express competed with Siegel Transfer or that Rediehs
Express would benefit from Siegel Transfer's elimination from the
Sparrows Point market. To the contrary, the defendants presented
evidence which established that Rediehs Express did not haul
steel products from Sparrows Point and that the tonnage of
freight it received from Bethlehem Steel out of Burns Harbor
declined following termination of Siegel Transfer's contract with
Carrier Express. Nor did the plaintiffs proffer any evidence to
demonstrate that Oak Management, acting through Rediehs and
Bryan, caused Carrier Express to terminate its contract with
Siegel Transfer. Again, the record is to the contrary, showing
that James Matthews, Carrier Express' Vice President, possessed
and retained the authority to decide such matters, and indeed
exercised that authority in favor of contract termination. At
most, Oak Management was asked to give Carrier Express advice.15
The giving of advice, however, when requested by the decision
maker, is not equivalent to making the decision. Pennsylvania
Dental Ass'n v. Medical Serv. Ass'n., 745 F.2d 248, 259 (3d Cir.
1984), cert. denied, 471 U.S. 1016 (1985).
We also reject the plaintiffs' alternative argument
regarding Rediehs' and Bryan's purported desire for Carrier
Express' Baltimore agency. First, the record conclusively
establishes that neither Rediehs nor Bryan sought the agency, and
that Rediehs only reluctantly accepted it on Oak Management's
behalf at Carrier Express' request. Second, Oak Management had
nothing to gain, and indeed did not gain, from Siegel's ouster as
a Carrier Express agent. Third, any losses that Siegel
personally may have sustained are not relevant to the plaintiffs'
case. Finally, Siegel's termination as a Carrier Express agent
was a natural consequence of contract termination, an event that
Oak Management did not cause or control.
V.
When we apply our conclusions regarding conspiratorial
capacity to the evidence, and evaluate the undisputed facts of
record, we find that the plaintiffs have failed to offer proof
sufficient to establish the element of concerted action. With
respect to their allegations that Bethlehem Steel, Bethran,
15
. The record shows that Rediehs advised Carrier Express
not to terminate its contract with Siegel Transfer, and that
Bryan did not offer any advice one way or the other.
Carrier Express and Oak Management conspired on January 4, 1990
to end Siegel Transfer's contract with Carrier Express, we
conclude that these companies constituted one economic unit which
met to announce Carrier Express' decision to terminate the
agreement. With regard to the plaintiffs' contention that Oak
Management's instructions to Carrier Express' agents not to make
transportation arrangements with Siegel Transfer constitute
evidence of a conspiracy to exclude Siegel Transfer from the
Sparrows Point market, we hold that this activity was undertaken
by a single enterprise in order to implement the contract's
termination.
As to the plaintiffs' complaint that the defendants
combined with other parties to refuse Siegel Transfer the
opportunity to haul freight for Bethlehem Steel, we find nothing
more in the record than a unilateral, and under the antitrust
laws, lawful choice on the part of one of Bethlehem Steel's
transportation superintendents not to use Siegel equipment to
transport products out of the company's Sparrow Point mill.
Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761
(1984) (A buyer or a seller "generally has the right to deal, or
refuse to deal, with whomever it likes, as long as it does so
independently."). In addition, the record is uncontroverted that
Bethlehem Steel, through other transportation managers, did
indeed permit carriers with whom the company had direct business
ties to use Siegel equipment to haul Bethlehem Steel freight
after Carrier Express' termination of the Siegel Transfer
contract. Further, although the plaintiffs suggested in their
brief that Rediehs Express assisted Carrier Express in a
"horizontal restraint", they did not present a factual basis for
this belief. As we have stated, "[l]egal memoranda and oral
argument are not evidence and cannot by themselves create a
factual dispute sufficient to defeat a summary judgment motion."
Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103,
1109 (3d Cir. 1985), cert. denied, 475 U.S. 1013 (1986).
Lastly, we conclude that the plaintiffs' contention
that the refund contract between Carrier Express and Bethlehem
Steel represents a per se violation of section 1 of the Sherman
Act lacks merit. Because the only parties to the contract were
members of the Bethlehem Steel corporate family, the requisite
element of concerted action is missing. Moreover, we do not find
any support for the plaintiffs' theory that a per se violation of
the antitrust laws can be stated merely by alleging that an
otherwise lawful arrangement is contrary to the "pro-competitive"
polices of the Interstate Commerce Act.
VI.
In Count XI of the amended complaint, the plaintiffs
claim that the defendants violated the Interstate Commerce Act
and the Elkins Act. According to the plaintiffs, Siegel
Transfer's contract with Carrier Express was an unlawful
"brokerage" agreement which improperly provided a "commission" to
Carrier Express and a "rebate" to Bethlehem Steel; the refund
agreement between Carrier Express and Bethlehem Steel amounted to
another unlawful "rebate"; and Bethlehem Steel impermissibly
owned and controlled the operations of Bethran and Carrier
Express.
Congress gave the Interstate Commerce Commission
primary responsibility to enforce the Interstate Commerce Act,
authorizing it to investigate infractions, compel compliance
where violations have occurred, bring civil actions to enjoin
certain violations, and enforce its orders and regulations. 49
U.S.C. § 11702. The Act also authorizes the Attorney General to
enforce the Act upon the Commission's request, and to bring civil
actions against common carriers for discriminatory practices. 49
U.S.C. § 11703.
In only a limited number of sections of the Act does
Congress allow a private party to file suit in a court of law.16
The plaintiffs do not cite to any of these sections in Count XI,
nor do they apply in this case.
The other private action currently permitted under the
Act involves "undercharge" claims, the allegation by a common
carrier that it received a lower rate from a shipper than that
filed with the Commission. See, e.g., Maislin Industries, U.S.
16
. Section 11704 permits an interested person to enjoin an
abandonment of service; section 11705 provides a private right of
action to one injured in specified ways by certain carriers;
section 11707 permits a private action against a common carrier
for liability under receipts and bills of lading; and section
11708 allows a person to sue to enforce the Act's provisions
relating to the issuance of operating certificates and permits.
49 U.S.C. §§ 11704-11705, 11707-11708.
We note also that the plaintiffs did not raise the
question of an implied right of action under either the
Interstate Commerce Act or the Elkins Act.
v. Primary Steel, 497 U.S. 116 (1990). Because contract carriers
are exempt from the tariff filing and uniform rate requirements
of the Act, Central and Southern Motor Freight Tariff Assoc.,
Inc. v. United States, 757 F.2d 301 (D.C. Cir.), cert. denied,
474 U.S. 1019 (1985), there is no basis for an undercharge claim
in this, a motor contract carrier case.
The Elkins Act, the other statute upon which the
plaintiffs rely, does not regulate motor contract carriers or
provide for private remedies. 49 U.S.C. §§ 11901-11903, 11915-
11916.
We therefore find that the district court correctly
dismissed the plaintiffs' federal transportation law claims for
lack of subject matter jurisdiction because neither the
Interstate Commerce Act nor the Elkins Act grants the plaintiffs
the right to pursue their allegations in a federal court.
Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804
(1986) (the existence of a private cause of action is a
jurisdictional requirement).
VII.
We turn finally to the plaintiffs' state law claims.
Because the plaintiffs failed to establish the antitrust claim
they brought under federal law, their Maryland Antitrust Act
claim also fails. Natural Design, Inc. v. Rouse Co., 302 Md. 47,
53, 485 A.2d 663, 666 (1984) (the Maryland courts follow the
federal courts' interpretations of section 1 of the Sherman Act
when evaluating state antitrust claims). Likewise, the
plaintiffs' civil conspiracy claim is deficient for failing to
establish that the defendants engaged in an unlawful conspiracy.
Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d
466, 472 (1979) (under Pennsylvania law, the essential elements
of civil conspiracy include malice and proof of a combination or
agreement by two or more persons to do an unlawful act or to use
unlawful means to accomplish an otherwise lawful act).17
In their breach of contract claim, the plaintiffs
contend that Carrier Express' January 4, 1990 notice of contract
termination was ineffective because the contract required that
notice be given by December 4, thirty days before the contract's
January 4 renewal date. The defendants argue that the contract
renewed from year to year, with resulting yearly obligations, but
that the year term could be cut short at any time by either party
upon proper notice.18
17
. The district court analyzed the civil conspiracy claim
under Pennsylvania law. On appeal, both parties applied
Pennsylvania law to this claim.
18
. The contract's termination provision provided:
(13) This AGREEMENT is to become effective
January 4, 1986 and shall remain in effect
for a period of three yrs from such date, and
from year to year thereafter, subject to the
right of either party hereto to cancel or
terminate the AGREEMENT at any time upon not
less than thirty (30) days written notice of
one party to the other. (emphasis in
original).
In Maryland,19 the courts interpret written contracts
that are clear and unambiguous. Rothman v. Silver, 245 Md. 292,
296, 226 A.2d 308, 309 (1967). The cardinal rule in the
interpretation of contracts is that effect must be given to the
intention of the parties, Kasten Constr. Co., Inc. v. Rod
Enterprises, Inc., 268 Md. 318, 328, 301 A.2d 12, 18 (1973), and
to all provisions of the agreement. Rothman, 245 Md. at 296, 226
A.2d at 309. When the language of a contract is clear, the true
test of what is meant is not what one of the parties to the
contract understood it to mean, but what a reasonable person in
the position of the parties would have thought it meant. Kasten
Constr., 268 Md. at 329, 301 A.2d at 18.
In our view, the plaintiffs' interpretation of the
contract is strained, ignores the "at any time" termination
language and adds a notice period that the contract did not have.
The defendants' interpretation, on the other hand, is reasonable
and gives meaning to all of the contract's provisions. We
therefore find that the district court did not err in holding
that the defendants' January 4, 1990 notice of termination
complied with the terms of the parties' contract.
The plaintiffs also argue that Carrier Express failed
to honor the thirty-day notice period. The record and the
contract itself belie this argument. On January 4, 5 and 12,
1990, Carrier Express offered Siegel Transfer more than 600,000
19
. The district court determined that Maryland law applies
to the plaintiffs' contract claims. Neither party disagreed with
the court's choice of law on appeal.
pounds of freight to transport. While the plaintiffs contend
that arrangements for transport of this freight were made prior
to January 1, 1990, the fact remains that Carrier Express' offer
and Siegel Transfer's transport occurred in January 1990. The
plaintiffs also assert that the parties' agreement required a
minimum of twenty-five loads a day. To the contrary, the
contract expressly obligated Carrier Express to offer "a minimum
quantity of 30,000 pounds per year for each year this Agreement
remains in effect."20
Finally, we agree with the district court that the
plaintiffs' claim for breach of the implied duty of good faith
must fail because the claim amounts to no more than an
impermissible attempt on their part to alter the termination
provision of the contract. Parker v. Columbia Bank, 91 Md. App.
346, 365, 604 A.2d 521, 531 (1992) (the duty of good faith and
fair dealing is an implied term, but this duty "simply prohibits
one party to a contract from acting in such a manner as to
prevent the party from performing his obligations . . . .").
VIII.
For the foregoing reasons, we will affirm the district
court's grant of summary judgment on Counts I, II, III, IV, VII,
20
. The plaintiffs' additional claim that the contract was
not a "trip lease" and their discussion regarding the necessary
elements of a motor carrier agreement under the Interstate
Commerce Act are not relevant, and do not alter the fact that the
defendants properly exercised the termination right they had
under the contract.
VIII and XI in the defendants' favor, and the court's dismissal
of the federal claims in Count XI of the plaintiffs' Amended
Complaint.
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396 S.W.2d 389 (1965)
Ralph Carl POWERS, Appellant,
v.
The STATE of Texas, Appellee.
No. 38043.
Court of Criminal Appeals of Texas.
November 3, 1965.
Rehearing Denied December 15, 1965.
Farmer, Maddin, Eichelberger & Walker, Waco, for appellant.
James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The offense is murder; the punishment, death.
The state's testimony shows that the deceased, Morris Weldon (Dicky) Renfro, nineteen years of age, was killed by a bullet fired from a .32 calibre pistol in the hands of appellant. The killing occurred in the parking area of Castle Hills Manor, an apartment complex on Blanco Road in the city of San Antonio, where the Renfro family lived.
It appears that on the night in question, the deceased and his friend and football teammate from Hardin Simmons University, Larry McNair, who was visiting him in San Antonio, had dates with two girls, Sharon Walters, then unmarried, and Gene Dakis. During the evening, the two couples went to a downtown movie and, after the movie, went to a cocktail lounge, where the boys had two beers. Around midnight they returned to Castle Hills Manor and went to Sharon's apartment, in the same complex, and listened to records. Shortly after midnight they put on their bathing suits and went downstairs to the pool and went swimming. In some fifteen minutes, Sharon's sister, who was visiting their parents at the apartment, came to the pool and asked the two couples to take her home. The boys then put on shirts and the girls put on blouses and proceeded to take her home, in a car belonging to Sharon's parents. After staying at the sister's apartment for five minutes, the two couples returned *390 to Castle Hills Manor. On the return trip, Sharon drove the car, the deceased rode in the front seat, and the other couple rode in the back.
McNair testified that when they drove into the parking lot he observed an automobile parked in the lot with three people in it. As he and the deceased were getting out of their car the other car began leaving and stopped near where he and the deceased were standing. The witness and the deceased then approached the driver's side of the car and the deceased asked the driver if he could help him. The driver replied in the negative and stated that they were just turning around. The deceased then said, "`You didn't have to come in here to turn around, did you?'" Thereupon, the appellant, who was seated in front, next to the driver, asked the deceased if he was getting smart with him. The deceased said, "`No.'" Appellant got out of the car, came around the front with a pistol in his hand, and cursed the deceased.
Appellant then told the deceased he wanted to fight. The deceased said nothing. Appellant stated that the deceased was trying to get smart with him, to which deceased replied that he was not, that he did not want any trouble, and that "they had just had trouble in the parking lot, so he just wanted to see what was going on." Appellant stated that "he didn't care, he thought he was trying to get smart with him," and the deceased said, "`Well, if we are going to fight * * * Put the gun away, and we'll go on the grass and fight.'" Appellant first said that he was not going to, but then handed the pistol to the driver of the car and hit the deceased with his fist. Before the deceased "could do anything," appellant got the gun back from the driver, pointed it at the witness McNair, and told him to stay where he was. Appellant then hit the deceased on the head four times with the pistol, as the deceased was backing away and appellant was advancing upon him. After backing the deceased for a distance of between ten and fifteen yards, appellant shot the deceased with the pistol. Appellant then ran to his car, told his companions to turn the lights off and "get the hell out of here.'" Appellant then fled from the scene, in the car, and two days later surrendered himself to the district attorney at the Bexar County courthouse.
The two girls, Sharon Walterswhose married name at the time of trial was Sharon Walters Jines, and Gene Dakis, both testified as witnesses for the state and gave their version of the shooting, which supported the state's theory that appellant was the aggressor in the fatal difficulty.
It was further shown that, when shot, the deceased was unarmed, and clad in swim trunks and a Banlon shirt.
An examination of the deceased's body by Dr. Ruben C. Santos, the acting Bexar County medical examiner, disclosed that the deceased had been shot, at close range, one time, in the right front chest. An autopsy performed upon the deceased disclosed that the bullet had gone through the aorta, and this, the doctor stated, was the cause of death.
Testifying as a witness in his own behalf, the appellant, twenty years of age, stated that on the night in question he was with two companions, John Wayne Jarvis and Kenneth Strawn; that Jarvis was looking for a friend and missed the street they were looking for and drove into the Castle Hills Manor parking lot. Appellant testified that, as they were leaving, the deceased and McNair stopped them and asked what they were doing, and that he got out of the car with his pistol because it appeared they were looking for trouble. As he started around the front of the car, McNair stopped but the deceased kept coming toward him. When the deceased started to "jump on" the appellant, the latter hit the deceased with the pistol. A discussion then ensued between them about fighting "it out" and appellant put the gun in the car. Appellant stated that the deceased and McNair then started toward him and *391 he grabbed the gun and told them to stop. McNair stopped but the deceased did not, "so that's when I went to hit him * * * the gun went offit came out of my hand and went off at the same time. I didn't know what happened. Kind of stunned me, I guess." Appellant swore that at the time the gun fired, the deceased was advancing upon him but that he did not intentionally shoot him.
The issue of appellant's guilt was submitted to the jury upon a charge on the law of self-defense and also of accident.
Complaint is made to the court's instructions as to appellant's right of self-defense.
In the original charge, the court fully instructed the jury, in paragraph VI, as to appellant's right to defend himself against an attack being made upon him by the deceased, Morris Weldon (Dicky) Renfro. In making application of the law to the facts, the jury were instructed that if they believed from the evidence that at the time appellant killed the deceased it reasonably appeared to him that the deceased was about to make an attack upon him and that he was in danger of losing his life or suffering serious bodily injury at the hands of the deceased, then they would find appellant not guilty and by their verdict acquit him.
The converse thereof was then given to the jury, with the following instruction:
"If you believe from the evidence, beyond a reasonable doubt, that at the time and place in question it did not reasonably appear to the defendant, Ralph Carl Powers, that he was in any danger of death or serious bodily injury at the hands of the deceased, viewing all the facts and circumstances from the defendant's standpoint at the time, then you will find against the defendant on his issue of self-defense."
Certain objections were made by appellant to the court's charge on self-defense, among them being his eighth objection, which stated:
"* * * for the reason that said converse charge is an undue restriction and limitation upon the defendant's right of self-defense and is a charge upon and a comment upon the weight of the evidence and, in effect, reverses the burden of proof and, in effect, the Court tells the jury that it is not bound to be governed by the Court's charge on the defendant's right of self-defense. And the defendant here and now moves the Court to delete from his charge all of that portion found on Page 7 of the Court's charge."
Appellant, in his ninth objection to the charge, objected and excepted to the same because it did not charge the jury on the law giving him the right to defend himself against a joint attack made by the deceased, Renfro, and Larry McNair, and moved the court to instruct the jury on the law with reference to his right to defend himself against a joint attack.
In response to appellant's objection, the court proceeded to amend his original charge and, among other instructions, added paragraph VI-A, which instructed the jury on the right of appellant to defend himself against a joint attack being made upon him by the deceased, Renfro, and Larry McNair.
After the charge had been amended and before it was read to the jury, appellant re-urged all of his objections made to the original charge, which were by the court overruled.
We overrule appellant's contention that the final charge given by the court on self-defense was contradictory and ambiguous because the converse charge given in paragraph VI on appellant's right to defend against an attack by the deceased had the effect of nullifying the charge given in paragraph VI-A on his right to defend against a joint attack by the deceased *392 and McNair. The instruction by the court in paragraph VI, submitting the converse of appellant's theory of self-defense against an attack by the deceased, Renfro, was proper. Johnson v. State, 125 Tex.Cr. R. 381, 68 S.W.2d 202; Barkley v. State, Tex.Cr.App., 214 S.W.2d 287. We do not construe this instruction given by the court in paragraph VIi. e.: to find against appellant on his issue of self-defense if the jury found that it did not reasonably appear to him that he was in danger of serious bodily injury at the hands of the deceasedas being applicable to his right of self-defense against a joint attack granted to him under paragraph VI-A of the charge. A reasonable interpretation of such instruction is that it applied only to the issue of appellant's right of self-defense against the deceased. A defendant is in no position to complain of the court's failure to submit the converse of a charge on self-defense.
Nor do we agree that the court erred in overruling appellant's objection to the charge on self-defense because it did not instruct the jury that in determining the issue they might take into consideration the relative size and strength of the parties. In view of the unrestricted charge given by the court on self-defense, the failure to further charge on the relative size and strength of the parties is not error. Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562; Gilbert v. State, 170 Tex.Cr.R. 335, 340 S.W.2d 808.
Complaint is made in bill of exception #3 to certain argument by special prosecutor Fred Semaan in his opening argument to the jury, when he stated:
"I want to begin by telling you that on the night of July the 19th, 1963, in the County of Bexar and State of Texas, two young men, both residents of this town, met in a driveway of an apartment house off Blanco Road. We had the right to infer from the evidence in this case that one was a fine, clean-cut young man. There isn't a word in the testimony to the contrary.'"
Counsel for appellant objected to the argument on the ground that:
"* * * it is not a fair deduction to be drawn from any of the evidence in the case, and it is not within the record. And we object to this statement made by Mr. Semaan as being prejudicial to the rights of the defendant.'"
Appellant's objection was overruled by the court in the following language:
"`Objection be overruled, but the jury will be instructed that argument of Counsel is not evidence and is not to be considered by you as such. However, Counsel may draw reasonable deductions from the evidence.'"
Following the court's ruling and appellant's exception thereto, the special prosecutor continued in part as follows:
"`I don't think there is any question that the evidence shows that one young man, Morris Weldon (Dicky) Renfrowas a graduate of Highlands High School here in San Antonio, that at the time this happened, that he was at home on vacation from Hardin Simmons University, where he was going to school and playing football. The evidence shows that another young man was out there, a man that we don't know too much about. We know that he carried a pistol, that he had a bad habit of carrying a pistol, by his own admission twice from the witness stand he told you that * * *.'"
No objection is shown to have been made to the latter argument.
We do not construe the remarks complained of as being testimony on the part of the special prosecutor but only remarks which were a reasonable deduction from the evidence. No error is presented. *393 Jones v. State, 153 Tex.Cr.R. 345, 220 S. W.2d 156; Sanchez v. State, 156 Tex.Cr. R. 468, 243 S.W.2d 700.
No error appearing, the judgment is affirmed.
Opinion approved by the court.
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829 F.2d 1127
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Raymond WHITE, Plaintiff-Appellant,v.T. M. YOUNG, et al., Defendants-Appellees.
No. 87-5211
United States Court of Appeals, Sixth Circuit.
September 22, 1987.
ORDER
Before ENGEL and RYAN, Circuit Judge, and PECK, Senior Circuit Judge.
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
2
Upon consideration, we affirm the judgment of the district court for the reasons stated in its order granting summary judgment filed January 27, 1987. Rule 9(b)(5), Rules of the Sixth Circuit.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6083
DARRYL JONES,
Petitioner - Appellant,
versus
EDDIE PEARSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-04-1017-1)
Submitted: June 9, 2005 Decided: June 15, 2005
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Darryl Jones, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darryl Jones, a Virginia prisoner, seeks to appeal the
district court’s order denying his motion to reconsider the court’s
order dismissing without prejudice his petition filed under 28
U.S.C. § 2254 (2000). An appeal may not be taken from the final
order in a habeas corpus 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 Jones has not made the requisite showing.
Accordingly, we deny Jones’ motion for 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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535 U.S. 1096
SPRINKLER FITTERS LOCAL 417v.MINNESOTA CHAPTER OF ASSOCIATED BUILDERS & CONTRACTORS, INC., ET AL.
No. 01-1395.
Supreme Court of the United States.
May 28, 2002.
1
C. A. 8th Cir. Certiorari denied. Reported below: 267 F. 3d 807.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,219-01
EX PARTE TRAMAINE SAMPSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1185990-A IN THE 228TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of delivery of a
controlled substance and sentenced to twenty-seven years’ imprisonment. The Fourteenth Court of
Appeals affirmed his conviction. Sampson v. State, No. 14-09-991-CR (Tex. App.—Houston [14th]
Jan. 25, 2011).
Applicant contends that he never received notice from his counsel regarding the appellate
court’s decision in his direct appeal. Appellate counsel filed an affidavit with the trial court stating
that she timely sent a notice to Applicant at the Coffield Unit which was signed for by their mail
2
room on February 8, 2011. Applicant responds that he was never housed at the Coffield Unit and
therefore never received counsel’s letter. We remanded this application to the trial court for findings
of fact and conclusions of law.
Records from the Texas Department of Criminal Justice (TDCJ) show that Applicant was
never housed on the Coffield Unit, where counsel sent the notification, and that he did not receive
any legal mail during the time frame in question where he was housed.
We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time petition
for discretionary review of the judgment of the Court of Appeals in Cause No. 14-09-991-CR that
affirmed conviction in Cause No. 1185990 from the 228th District Court of Harris County. Applicant
shall file petition for discretionary review with this Court within 30 days of the date on which this
Court’s mandate issues.
Delivered: July 27, 2016
Do not publish
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Supreme Court of Florida
____________
No. SC17-2054
____________
DANIEL LEE DOYLE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[June 26, 2018]
PER CURIAM.
We have for review Daniel Lee Doyle’s appeal of the circuit court’s order
denying Doyle’s motion filed pursuant to Florida Rule of Criminal Procedure
3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Doyle’s motion sought relief pursuant to the United States Supreme Court’s
decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on remand in
Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161
(2017). Doyle responded to this Court’s order to show cause arguing why
Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017),
should not be dispositive in this case.
After reviewing Doyle’s response to the order to show cause, as well as the
State’s arguments in reply, we conclude that Doyle is not entitled to relief. Doyle
was sentenced to death following a jury’s recommendation for death by a vote of
eight to four, and his sentence of death became final in 1985. Doyle v. State, 460
So. 2d 353 (Fla. 1984).1 Thus, Hurst does not apply retroactively to Doyle’s
sentence of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the
denial of Doyle’s motion.
The Court having carefully considered all arguments raised by Doyle, we
caution that any rehearing motion containing reargument will be stricken. It is so
ordered.
LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
LEWIS and CANADY, JJ., concur in result.
PARIENTE, J., concurring in result.
As in prior Hitchcock2-related cases, I concur in result because I recognize
that this Court’s opinion in Hitchcock is now final. However, I continue to adhere
1. Although our decision affirming Doyle’s death sentence does not specify
the number of Doyle’s jurors who voted to recommend death, the Eleventh Circuit
Court of Appeals referenced the jury vote in its decision regarding Doyle’s federal
petition for a writ of habeas corpus. See Doyle v. Dugger, 922 F.2d 646, 648 (11th
Cir. 1991).
2. Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513
(2017).
-2-
to the views expressed in my dissenting opinion in Hitchcock that Hurst3 should
apply retroactively to defendants like Doyle. Hitchcock, 226 So. 3d at 220-21
(Pariente, J., dissenting).
Applying Hurst to Doyle’s case, in addition to the jury’s nonunanimous
recommendation for death of eight to four, this Court determined on direct appeal
that the State did not prove the avoid arrest aggravating factor beyond a reasonable
doubt and therefore struck it before determining that the death penalty was
proportionate in Doyle’s case. Doyle v. State, 460 So. 2d 353, 358 (Fla. 1984);
majority op. at 2; see Middleton v. State, 42 Fla. L. Weekly S637, 2017 WL
2374697, *1-2 (Fla. June 1, 2017) (Pariente, J., dissenting) (explaining how a
stricken aggravating factor affects the Hurst harmless error analysis).4 Further, this
case demonstrates other concerns, specifically the absence of the trial court finding
any mental mitigation. As then-Justice Overton, joined by then-Justice McDonald,
explained on direct appeal dissenting in part,
3. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 136 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).
4. I also note that Doyle challenged his sentence of death under Caldwell v.
Mississippi, 472 U.S. 320 (1985), several times. See Doyle v. Singletary, 655 So.
2d 1120, 1121 (Fla. 1995); Doyle v. State, 526 So. 2d 909, 911 (Fla. 1988). As I
have explained, Caldwell further supports the conclusion that the Hurst error is not
harmless beyond a reasonable doubt in cases where the jury did not unanimously
recommend a sentence of death. See Reynolds v. State, 43 Fla. L. Weekly S163,
2018 WL 1633075, *15-17 (Fla. Apr. 5, 2018) (Pariente, J., dissenting).
-3-
The record reflects that [Doyle] was 21 years old; that he had an IQ of
between 70 and 80, and was borderline retarded; that he was suffering
from organic brain defects, which caused dyslexia, and had emotional
problems; that he had been enrolled in handicapped classes; and that
his mental condition was chronic.
Doyle, 460 So. 2d at 358 (Overton, J., concurring in part and dissenting in part).
After explaining that substantial evidence of mental mitigation was presented,
which the trial court should not have rejected, Justice Overton explained that the
trial court applied the wrong standard “in determining the presence or absence of
the above mitigating circumstances.” Id. at 359.
Therefore, in addition to the Court striking one of the three aggravating
factors, the presence of substantial mitigation demonstrates that this case cries out
for a resentencing by a jury in light of Hurst. While the crime itself was certainly
aggravated, at least 4 jurors concluded that the death penalty was not appropriate,
likely due to the significant evidence of mitigation. Accordingly, if Hurst applied
to Doyle’s case, I would conclude that the Hurst error is not harmless beyond a
reasonable doubt and would, accordingly, grant Doyle a new penalty phase.
An Appeal from the Circuit Court in and for Broward County,
Edward Harold Merrigan, Jr., Judge - Case No. 061981CF009310A88810
Mark E. Olive of the Law Office of Mark E. Olive, P.A., Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Ilana Mitzner,
Assistant Attorney General, West Palm Beach, Florida,
-4-
for Appellee
-5-
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0544n.06
Filed: August 1, 2006
No. 05-6533
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROGER ROCHE, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF KENTUCKY
)
HOME DEPOT U.S.A., ) OPINION
)
Dependants-Appellees. )
BEFORE: BOGGS and COLE, Circuit Judges; ROSEN, District Judge*
R. Guy Cole, Jr., Circuit Judge. Plaintiff-Appellant Roger Roche, proceeding pro se,
appeals the district court’s order dismissing and granting summary judgment on his claims of libel
and wrongful termination brought against Defendants-Appellees Home Depot U.S.A., Inc. (“Home
Depot”) and Dennis Donovan, Home Depot’s Executive Vice President of Human Resources. For
the following reasons, we conclude that Roche’s appeal lacks merit, and we affirm both orders of
the district court.
I.
Roche was employed by Home Depot from October 1996 until October 2002. During the
last two years of his employment, Roche submitted numerous claims and complaints via fax to
*
The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-6533
Roche v. Home Depot U.S.A.
Donovan, alleging various forms of wrongdoing by Home Depot’s managers and Roche’s co-
workers. On September 6, 2002, Roche received a performance notice ( “September Performance
Notice”), which summarized the various complaints submitted by Roche about work-related
concerns since October 2001, characterized the allegations contained therein as false, and warned
that the submission of future false allegations would lead to Roche’s immediate termination. On
October 17, Roche received another performance notice (“October Performance Notice”), which
summarized a complaint received from one of Roche’s co-workers, Amy Watkins, about a
conversation she had had with Roche. Roche was ultimately terminated on October 27, 2002.
In a pro se complaint filed on September 3, 2003 (“Roche I”), Roche brought one claim of
negligent supervision, seven claims of libel per se, and one claim of injurious falsehood against
Home Depot and Donovan. These claims pertained to statements about Roche contained in the
September Performance Notice.
In a second pro se complaint filed on October 16, 2003 (“Roche II”), Roche brought three
claims of negligent supervision, three claims of libel per se, one claim of injurious falsehood, and
one claim of wrongful termination against Home Depot and Donovan. The libel per se claims in
Roche II pertained to statements about Roche contained in the October Performance Notice.
By order dated July 20, 2004, the district court dismissed the entirety of Roche II and a
majority of the claims in Roche I for failure to state a claim upon which relief could be granted
pursuant to Fed. R. Civ. P. 12(b)(6). The district court also dismissed Donovan as a party for lack
of personal jurisdiction. Having dismissed the entirety of Roche II, the district court denied as moot
the defendants’ motion to consolidate Roche I and Roche II.
-2-
No. 05-6533
Roche v. Home Depot U.S.A.
The district court’s July 20 order left remaining three claims of libel and one claim of
negligent supervision. By Memorandum Opinion and Order dated August 18, 2005, and entered
August 19, 2005, the district court granted Home Depot’s motion for summary judgment on Roche’s
remaining claims, on the ground that the statements in the September Performance Notice were
covered by Kentucky’s qualified privilege for statements “made in good faith, without malice, by
one who believes he has a duty or an interest to a person with a corresponding duty or interest.”
Roche v. Home Depot U.S.A., No. Civ.A. 03-599-C, 2005 WL 2000708, at *2 (W.D. Ky. Aug. 18
2005).
Roche now appeals the district court’s dismissal of his wrongful termination claim, the
dismissal of seven of his ten libel claims, and summary judgment on his remaining three libel claims.
He does not appeal the dismissal of or summary judgment on his injurious falsehood or negligent
supervision claims, or the dismissal of Donovan as a party.
II.
A. Procedural Matters
As an initial matter, Home Depot argues that, even accepting the leniency this court affords
to pro se parties in complying with procedural rules, see Spotts v. United States, 429 F.3d 248, 250
(6th Cir. 2005), we nevertheless should decline to reach the merits of Roche’s appeal because of
Roche’s failure to comply with Federal Rule of Appellate Procedure 28(b)(1). In support of its
position, Home Depot points to the absence in the appellant’s brief of a jurisdictional statement, a
dearth of citation to legal authority, and the lack of a concise statement of the issues on appeal or
summary of his argument.
-3-
No. 05-6533
Roche v. Home Depot U.S.A.
Our review of the record reveals that there is no controversy as to this court’s jurisdiction
under 28 U.S.C. § 1291. Moreover, while Roche’s brief is not a model of clarity under Fed. R. App.
P. 28(b)(1), he has set forth his arguments with sufficient specificity to avoid dismissal of his appeal.
We therefore turn to the merits of the appeal.
B. Dismissal of Roche II Libel Claims
Roche appeals the district court’s dismissal of his Roche II libel claims. The district court
dismissed these claims because the statements in the October Performance Notice forming the basis
of the claims did not constitute libel per se and Roche did not plead special damages. The first of
these statements was, “[Roche] told Amy he did not like her smiling at him because he believed she
was thinking about him having sex with his dog.” The second of these statements was, “Roger was
later telling associates that Amy said he was having sex w/ his dog.” The third of these statements
was, “Amy never intended that meaning and is offended that Roger would take it that way, tell other
associates that she was saying he had sex with his dog, and suggest that by smiling she was thinking
it.” A portion of the October Performance Notice not quoted by Roche in his complaint further
states that Watkins “feels harassed by [Roche] and wants no contact,” and proposes a resolution of
the conflict that orders Roche to cease speaking to Watkins or about Watkins and to avoid
intentional eye contact with her.
Whether a libel cause is actionable per se is a question of law. Columbia Sussex Corp., Inc.
v. Hay, 627 S.W.2d 270, 274 (Ky. Ct. App. 1981). We review questions of law de novo. Coleman
v. Mitchell, 244 F.3d 533, 538 (6th Cir. 2001). “In comparison to slanderous per se oral statements,
which must contain defamatory language of a specific nature,” i.e., statements that tend to disinherit
-4-
No. 05-6533
Roche v. Home Depot U.S.A.
the subject or to impute to him crime, infectious disease, or unfitness for public office, “[Kentucky]
common law treats a broader class of written defamatory statements as actionable per se.” Stringer
v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 794–95 (Ky. 2004). False written statements are libel
per se under Kentucky law if the statements “tend to expose the plaintiff to public hatred, ridicule,
contempt or disgrace,” Columbia Sussex, 627 S.W.2d at 274, or if the statements “impugn one’s
competence, capacity, or fitness in the performance of his profession,” Welch v. Am. Publ’g Co. of
Ky., 3 S.W.3d 724, 735 (Ky. 1999). “In determining whether a writing is libelous per se, courts must
stay within the ‘four corners’ of the written communication. The words must be given their
ordinary, natural meaning as defined by the average lay person. The face of the writing must be
stripped of all innuendoes and explanations.” CMI, Inc. v. Intoximeters, Inc., 918 F. Supp. 1068,
1084 (W.D. Ky. 1995) (citing Sweeney & Co. v. Brown, 60 S.W.2d 381, 384 (Ky. 1933); Digest
Publ’g Co. v. Perry Publ’g Co., 284 S.W.2d 832, 834 (Ky. 1955)).
Viewing the October Performance Notice as if stripped of all innuendos and explanations,
we conclude that the district court correctly determined that the statements which Roche quoted
from the October Performance Notice did not constitute libel per se. Of the three sentences Roche
cited, the first and second simply record Watkins’s account of Roche complaining about what he
perceived to be suggestive expressions and comments. Even if the October Performance Notice
provides a false account of what Roche said to Watkins or to his co-workers about Watkins, merely
complaining about a co-worker’s alleged suggestive expressions or comments would not itself tend
to expose an individual to hatred, contempt or disgrace, see Columbia Sussex Corp., 627 S.W.2d at
274, or impugn the complaining individual’s fitness in the performance of his or her job, see Welch,
-5-
No. 05-6533
Roche v. Home Depot U.S.A.
3 S.W.3d at 735. The third sentence, in addition to describing Roche’s complaints about Watkins,
also reports that Roche’s mistaken interpretation of Watkins’s comments offended her. Such a
report of a third party’s subjective feelings also would not tend to expose Roche to public hatred or
to suggest his unfitness to work at Home Depot, and likewise does not constitute libel per se.
Viewing these particular statements in the context of the full text of the October Performance
Notice, including the portions stating that Watkins “fe[lt] harassed” and instructing Roche to avoid
Watkins in the future, we may assume that the crux of Roche’s grievance is that the notice
characterizes him as making Watkins feel harassed. Even so, the notice itself, considered
independent of any extrinsic evidence and stripped of all innuendos, demonstrates only that Roche
was the recipient of a harassment complaint and that the complaint was based upon his
misunderstanding of his co-worker’s comment. The notice does not assign fault or state that Roche
intentionally made Watkins feel harassed. The statements in the notice by themselves would not
subject Roche to public hatred or impugn his ability to perform his job, and therefore do not
constitute libel per se.
We therefore affirm the district court’s dismissal of the libel claims contained in Roche II.
C. Dismissal of Certain Roche I Libel Claims
Roche appeals the district court’s dismissal of four of Roche’s libel claims from Roche I.
A defendant has a complete defense to a civil action in defamation if it proves the truth of its
statements by a preponderance of the evidence. Stringer, 151 S.W.3d at 796. Relying upon the
extrinsic documents attached to Roche’s complaint as dispositive evidence that four of Home
Depot’s statements were factually true— thereby converting Home Depot’s motion to dismiss into
-6-
No. 05-6533
Roche v. Home Depot U.S.A.
a motion for summary judgment, see Ball v. Union Carbide Corp. 385 F.3d 713, 719 (6th Cir.
2004)—the district court dismissed Roche’s four libel claims that were based on the true statements.
On appeal, Roche argues that Home Depot’s statements are not true. We review de novo the
district court’s dismissal of these claims, affirming if there exists no genuine issue of material fact
that could demonstrate Home Depot’s statements were false. See Beck-Wilson v. Principi, 441 F.3d
353, 359 (6th Cir. 2006).1
First, the district court dismissed Roche’s claim pertaining to Home Depot’s statement that
Roche had complained of “managers offering bribe money.” The court concluded that no genuine
issue of material fact existed as to the statement’s truth, citing to a December 10, 2001, fax sent by
Roche to Home Depot, attached to Roche’s complaint as Exhibit 103. Roche argues on appeal that
his fax refers only to “hush money” and that he never used the word “offer.”
Second, the district court dismissed Roche’s claim pertaining to Home Depot’s statement that
Roche “claims that Home Depot managers have tried to kill him over seventy times,” citing to
numerous faxes sent by Roche to Home Depot, attached to Roche’s complaint as Exhibits 108, 122,
100, and 118. Roche argues on appeal that in these faxes he never used the phrase “tried to kill” but
instead merely accused Home Depot of recklessly and/or willingly risking his life over seventy
times.
1
The district court’s decision to convert Home Depot’s motion to dismiss into a motion for
summary judgment would be reviewed for abuse of discretion, Ball v. Union Carbide Corp., 385
F.3d 713, 719 (6th Cir. 2004), but Roche has waived the argument by failing to raise it, see Caudill
v. Hollan, 431 F.3d 900, 915 n.13 (6th Cir. 2005); see also Forestier Fradera v. Municipality of
Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006).
-7-
No. 05-6533
Roche v. Home Depot U.S.A.
Third, the district court dismissed Roche’s claim pertaining to Home Depot’s statement that
Roche had “specifically referenced the attacks of September 11th and death (or the risk of life) 46
times,” citing to Exhibits 106, 108, 110, and 116 of Roche’s complaint. Citing several examples of
Roche’s references to death and September 11th in the record, the district court concluded that “[t]he
number of references to death and September 11th at least approach 46 so any inaccuracy in the
number has no impact on the allegedly defamatory nature of the statement.” Roche argues on appeal
that he did not reference the attacks themselves, but only the date of September 11th, bin Laden, and
the Sears tower.
Fourth, the district court dismissed Roche’s claim pertaining to Home Depot’s statement that
Roche had submitted complaints that alleged “10 acts of management falsifying documents, 43
mentions of safety related violations, receiving three prank phone calls from mrgrs, and people
stalking him eight separate times.” The district court cites to sixteen different statements contained
in Roche’s exhibits that demonstrate no genuine issue of material fact as to this statement’s truth.
On appeal, Roche argues that ten is an exaggerated count of his complaints regarding falsified
documents, and also argues that management in fact was falsifying documents; that his complaint
about forty-three safety-related violations was not false because forty-three safety-related violations
did occur; that he did not complain of “receiving three prank phone calls from mrgrs” because his
letter regarding the incident did not refer explicitly to multiple managers, but instead referred to one
manager by name and to “someone close to him;” and that his supervisor could have no way of
knowing whether “people” had in fact stalked Roche “eight separate times,” because “people” would
-8-
No. 05-6533
Roche v. Home Depot U.S.A.
include customers and vendors, and therefore the performance notice could not accurately describe
Roche’s stalking complaint as false.
Upon a careful review of the record, we agree that the evidence in the record leaves no
genuine issue of material fact as to the truth of the four Home Depot statements described above.
Furthermore, Roche’s arguments pertaining to the truth of his allegations about safety violations and
management falsifying documents are irrelevant to proving the libel claims dismissed by the district
court. The statements forming the basis of the dismissed claims do not accuse Roche of dishonesty.
In fact, the statements by Home Depot characterizing Roche’s allegations as “false” or
“unsubstantiated” form the basis of the three claims which the district court did not dismiss under
Rule 12(b)(6), and are discussed below in Part II.D. We therefore affirm the district court’s
dismissal of four of Roche’s libel claims based upon the truth of the underlying statements.
As an alternative basis for upholding the district court’s dismissal of these four claims, we
conclude that the statements forming the basis of these claims do not constitute libel per se, because
they merely purport to summarize the complaints submitted by Roche. The submission of work-
related complaints to one’s employer would not tend to expose the complaining individual to hatred
or disgrace, see Stringer, 151 S.W.3d at 794-95, or suggest the complaining individual’s unfitness
in the performance of his or her job, see Welch, 3 S.W.3d at 735.
D. Summary Judgment on Remaining Roche I Libel Claims
After the district court dismissed the claims discussed in Parts B and C above, three libel
claims remained, pertaining to the following statements in Roche’s September Performance Notice:
(1) “While one safety-related (H-frame) situation was substantiated and responded to, all other
-9-
No. 05-6533
Roche v. Home Depot U.S.A.
complaints have been deemed either unsubstantiated or false in their nature”; (2) “While making the
false claims listed above, Roger . . . .”; and (3) “Roger was warned [against] his submitting any
future false allegation.” At the conclusion of discovery, Home Depot moved for summary judgment
on these remaining libel claims. The court granted the motion because it found that the statements
were protected by qualified privilege, and that Roche had failed to present evidence to create a
genuine issue of material fact that the statements were made with malice or in bad faith that would
overcome the qualified privilege. Roche appeals the court’s grant of summary judgment, which we
review de novo. Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006).
Kentucky recognizes the existence of a qualified privilege for defamatory statements made
in good faith and without actual malice “where the communication is one in which the party has an
interest and it is made to another having a corresponding interest.” Stringer, 151 S.W.3d at 796.
This privilege encompasses an employer’s statements made regarding the conduct of employees.
Id. While actual malice “requires a showing of knowledge of falsity of the defamatory statement
or reckless disregard of its truth or falsity,” “[m]alice can be inferred from the fact of . . . falsity.”
Id. Therefore, Roche can prevail by demonstrating the actual falsity of Home Depot’s statements,
or Home Depot’s reckless disregard for their truth or falsity.
Roche argues that the district court erred in applying qualified privilege to Home Depot’s
statements, because the argument of qualified privilege applies only to false statements and
therefore Home Depot’s qualified privilege defense is inconsistent with its defense that its
statements are true. This argument lacks merit. Roche has cited no authority, nor could this court
find any, that supports Roche’s contention that Kentucky’s qualified privilege attaches only to false
- 10 -
No. 05-6533
Roche v. Home Depot U.S.A.
statements and not true statements, nor any authority that supports Roche’s assumption that a
defendant must concede the falsity of its statements before asserting an alternative defense of
qualified privilege.
Roche next argues that Home Depot abused its qualified privilege by failing to train its
supervisors to avoid making libelous statements. This argument likewise lacks merit. Although it
is true that a defendant may lose its qualified privilege through abuse, see Stringer, 151 S.W.3d at
797, Roche has cited no authority, nor has this court been able to find any, to support the proposition
that the privilege may be lost through inadequate training of employees in the law of defamation.
Furthermore, Roche provides no evidence to support his conclusory allegation that his supervisor
was inadequately trained.
Finally, Roche argues that Home Depot’s statements were false and made in reckless
disregard for their truth, and therefore do not enjoy qualified immunity. Upon a careful and
thorough review of the record, we conclude that the district court properly found that Roche failed
to present evidence sufficient to raise a genuine issue of material fact that Home Depot’s statements
were false or made in reckless disregard for their truth.
E. Dismissal of Roche II Wrongful Termination Claim
Roche also appeals the district court’s dismissal under Fed. R. Civ. P. 12(b)(6) of his
wrongful termination claim for failure to state a claim upon which relief could be granted. Roche
claims that his employment was terminated on account of the false statements put in his performance
notice. Roche argues that “[a]n employer should be able to fire an employee for any reason except
for reasons caused by harm the employer inflicted on the employee.”
- 11 -
No. 05-6533
Roche v. Home Depot U.S.A.
This argument finds no support in the law. As the district court correctly noted, Kentucky
law permits termination of at-will employees for no cause or for a cause that some might view as
morally indefensible, and recognizes an exception to the general rule only in cases where “the
employer terminates the employee in violation of a fundamental and well-defined public policy
evidenced by a constitutional or statutory provision.” See Grzyb v. Evans, 700 S.W.2d 399, 401
(Ky. 1985). Roche has identified no constitutional or statutory provision setting forth a public
policy that was violated by his termination.
F. Denial of Roche’s Motion to Compel Discovery
As a final matter, we observe that Roche makes repeated reference throughout his brief to
the alleged discovery failures of Home Depot. Roche apparently finds fault with the district court’s
order denying Roche’s motion to compel discovery. Roche provides no background information
regarding any discovery dispute and cites no authority to support his argument that an error
occurred. Roche has therefore waived his appeal of this issue. See Caudill v. Hollan, 431 F.3d 900,
915 n.13 (6th Cir. 2005).
In any event, a district court’s rulings on discovery issues are reviewed under the deferential
abuse of discretion standard. Ventura v. Cincinnati Enquirer, 396 F.3d 784, 789 (6th Cir. 2005).
Having reviewed the order denying Roche’s motion, and the related documents contained in the
district court record, we discern no abuse of discretion on the part of the district court. Insofar as
Roche’s brief may be construed to include an appeal of the district court’s denial of his motion to
compel, we conclude that it likewise lacks merit.
- 12 -
No. 05-6533
Roche v. Home Depot U.S.A.
III.
For the preceding reasons, the district court’s orders dated July 20, 2004 and August 19,
2005 are hereby affirmed.
- 13 -
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426 F.2d 90
10 A.L.R.Fed. 671, 1970 Trade Cases P 73,169
The MATERIAL HANDLING INSTITUTE, INC., Appellant,v.Richard W. McLAREN.
No. 18403.
United States Court of Appeals, Third Circuit.
Argued April 7, 1970.Decided May 8, 1970.
Edmund K. Trent, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellant.
George Edelstein, Appellate Section, Antitrust Division, Department of Justice, Washington, D.C. (Richard W. McLaren, Asst. Atty. Gen., Gregory B. Hovendon, Susan H. Ehringhaus, Attys., Department of Justice, Washington, D.C., on the brief), for appellee.
Before SEITZ and ALDISERT, Circuit Judges, and LATCHUM, District Judge.
OPINION OF THE COURT
SEITZ, Circuit Judge.
The Material Handling Institute, Inc. (Institute) appeals from a district court order denying its petition to set aside a Justice Department Civil Investigative Demand (CID). Jurisdiction for this appeal is predicated on section 5(d) of the Antitrust Civil Process Act, 15 U.S.C. 1311 et seq.
1
The Institute, a nonprofit trade association, has been the subject of a Justice Department investigation since 1967. The investigation has focused on the potential anticompetitive effects inherent in the Institute's restrictive membership policy. The Institute limits membership to those firms selling material handling equipment with 75% Or more of their sales income derived from sales of domestically manufactured equipment.
2
Prior to the issuance of the CID in question, the Institute had always complied with the Department's requests for information. However, when the Department sought a list of nonmember firms eligible for membership, the Institute refused primarily because it was 'fearful that any approach by (the Department) to these companies (would) interfere with its future relationship with them.'1 The CID seeking such a list was then served.
3
The Institute petitioned the district court to set aside the CID. The Justice Department responded with a lengthy memorandum of points and authorities and a supporting affidavit. At this point in the proceedings, the Institute moved for judgment on the pleadings. After a hearing on this motion, the district court issued a memorandum and order denying both the Institute's motion and petition to set aside.2 This appeal followed.
4
On appeal the Institute advances three reasons why its petition should have been granted below. The first reason proffered is that the CID is formally insufficient because it fails to adequately describe the allegedly unlawful conduct under investigation. Section 3(b)(1) of the Act requires that each CID 'state the nature of the conduct constituting the alleged antitrust violation which is under investigation and the provision of law applicable thereto * * *.' 15 U.S.C. 1312(b)(1). In attempting to comply with this requirement, the Department stated in its CID that it was investigating a possible violation of section 1 of the Sherman Act by a 'contract or combination in unreasonable restraint of trade.'
5
Such a terse statement might, standing alone, present serious questions concerning its conformity with the statutory purpose to inform the recipient of the CID of the conduct under investigation. On the present record, however, there can be no doubt that the Institute understood what conduct was under investigation. There is a two-year history of correspondence and telephone conversations as well as one other CID, all of which sought information concerning the anticompetitive effects of the Institute's restrictive membership practices. Indeed, a Justice Department letter shortly before the issuance of the CID specifically tied the need for the nonmember list to its investigation 'of a restrictive membership provision in the by-laws of the Institute.'3 In light of this record, we believe the CID fulfilled the demands of the statute. 15 U.S.C. 1312(b)(1). See Petition of Gold Bond Stamp Co., 221 F.Supp. 391, 397-398 (D.Minn.1963), aff'd per curiam,325 F.2d 1018 (8th Cir. 1964).
6
The second reason offered by the Institute for setting aside the CID is that the documents sought are not relevant to the Department's inquiry. The Institute makes a two-pronged attack here. First it urges that the Department never denied the assertion of irrelevancy in the Institute's petition to the district court and thus it stands admitted. Without deciding whether allegations in such petitions are admitted if not denied, we reject the Institute's contention on the facts. We believe the Department effectively denied this assertion in its memorandum of points and authorities when it said the 'document requested, which lists nonmembers firms eligible for membership is obviously relevant to any consideration of the anticompetitive effects of a bylaw provision restricting membership.'
7
The Institute also argues that the document sought by the CID does not meet the relevancy requirement of the Act.4 Department argues that the reasons eligible nonmembers have not joined the Institute are relevant to any analysis of the competitive impact of the Institute and thus to the anticompetitive effect of its membership policy. This explanation in our view adequately demonstrates the relevancy of the document to an inquiry into a potential violation of section 1 of the Sherman Act.
8
The Institute's final argument is that it cannot be ordered to comply with the CID because it does not possess the document demanded. This claim is based on the tenuous distinction the Institute would draw between possession of addressograph plates listing addresses of eligible nonmembers and the possession of a printed list. Because it possesses only addressograph plates, the Institute argues, it cannot be forced to produce a list. We note initially that the statutory definition of 'documentary materials' encompasses all 'records.' 15 U.S.C. 1311(g). Moreover, it would be a subversion of the Act's clear intent to allow a business entity to insulate its records from appropriate investigation by the use of modern information storage techniques.
9
The judgment of the district court will be affirmed.
1
Letter from Edmund Trent, attorney for the Institute, to the Justice Department, February 25, 1969
2
Neither side contends a ruling on the merits at this stage of the proceedings was premature
3
Letter from Richard J. Torre, Justice Department Attorney, to the Institute, March 4, 1969
4
Section 3 of the Act provides in relevant part:
'Whenever the Attorney General * * * has reason to believe that any person under investigation may be in possession, custody, or control of any documentary material relevant to a civil antitrust investigation, he may * * * issue * * * a civil investigative demand * * *.' 15 U.S.C. 1312(a).
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50 F.3d 1012
17 ITRD 1053
VAN DALE INDUSTRIES, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee.
No. 94-1353.
United States Court of Appeals,Federal Circuit.
March 17, 1995.
Steven P. Florsheim, Grunfeld, DeSiderio, Lebowitz & Silverman, New York City, argued, for plaintiff-appellant.
Barbara Silver Williams, Attorney in Charge, Intern. Trade Field Office, Dept. of Justice, New York City, argued, for defendant-appellee. Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Joseph I. Liebman, and Susan Bennett Mansfield, Sr. Trial Counsel, Dept. of Justice, New York City, were on the brief, for defendant-appellee.
Before MICHEL and LOURIE, Circuit Judges, and SMITH, Senior Circuit Judge.
MICHEL, Circuit Judge.
1
Van Dale Industries (Van Dale) appeals the April 1, 1994 decision of the Court of International Trade, slip opinion 94-54, granting summary judgment affirming the United States Customs Service classification under subheading 6109.10.00 of the Harmonized Tariff Schedule of the United States (HTSUS) of merchandise imported by Van Dale. Because Van Dale has not shown the female undershirts to not fit that classification or to better fit another, we affirm.
BACKGROUND
2
Van Dale imported women's or girls' underwear tops that cover the chest area, do not extend below the midriff of the wearer and do not provide support to the breasts. The Customs Service classified the merchandise under subheading 6109.10.00, HTSUS, which applies to "T-shirts, singlets, tank tops and similar garments " (emphasis added) at a rate of 21% ad valorem. Van Dale challenged that decision in the Court of International Trade which affirmed the classification.
3
Van Dale appealed to this court. We have jurisdiction pursuant to 28 U.S.C. Sec. 1295(a)(5) (1988).
DISCUSSION
4
The broad issue presented by this case, the meaning of a Customs classification term, is a question of law reviewed by us de novo on appeal from a decision of the Court of International Trade. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576, 7 Fed.Cir. (T) 82, 86 (1989). Because classification decisions of the Customs Service are presumed correct, the party challenging the classification carries the burden of proof in the trial court. 28 U.S.C. Sec. 2639(a)(1) (1988). As appellant here, Van Dale carries the burden of persuasion.
5
Van Dale contends that the Court of International Trade misapplied the principle of ejusdem generis in concluding that the merchandise was properly classified as a garment "similar" to "T-shirts, singlets and tank tops." "As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms." Sports Graphics, Inc. v. U.S., 24 F.3d 1390, 1392, --- Fed.Cir. (T) ---- (1994). Van Dale argues that T-shirts, singlets and tank tops are united by the essential characteristic of being shirt-type garments whose length always extends downward to the waist or lower, as shown, Van Dale argues, by definitions and illustrations from Webster's Third New International Dictionary (1986), The Fashion Dictionary (1973) and Fairchild's Dictionary of Fashion (2d ed. 1988). According to Van Dale, because the merchandise does not extend to the waist, the Customs Service cannot properly classify it under subheading 6109.10.00, HTSUS.
6
We agree with the Court of International Trade that extending down at least to the waist is not an essential characteristic of the three exemplars, T-shirts, singlets and tank tops. Although the illustrations from the dictionaries cited by Van Dale show shirts of this length, the definitions themselves do not impose such a restriction. Nor does any language in heading 6109, HTSUS.
7
The definitions cited by Van Dale do indicate, however, that T-shirts and singlets can be undershirts while tank tops are similar to undershirts. An undershirt is defined as "a collarless undergarment with or without sleeves." Webster's Ninth New Collegiate Dictionary 1287 (1990). The dictionaries undercut a definition that would require undershirts to necessarily extend to the waist or below. The merchandise, however, certainly fits the Webster definition of undershirt, establishing that as an undershirt that covers the breasts and a bit below as well as areas of the shoulders and back, the merchandise is "a similar garment" to the exemplars specified in heading 6109, HTSUS. Moreover, as to "purpose," like the exemplars the merchandise provides warmth and covering for modesty although not support to the breasts. We therefore conclude the Customs Service correctly classified the merchandise.
8
Van Dale contends that the merchandise is properly classifiable under subheading 6108.91.00, HTSUS, which applies to "women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles." This classification carries the rate of 9% ad valorem. According to Van Dale, the exemplars are united by the fact that they cover a broad range of women's and girls' underwear garments and, therefore, heading 6108 includes all female underwear garments not specially provided for in some other tariff provision. However, because women's and girls' undershirts are provided for under heading 6109, HTSUS, the merchandise at issue need not fall into any broader categories such as heading 6108, Van Dale's preferred provision, much less its fall back provision, the "catch-all" subheading 6114.20.00, HTSUS, for "other garments, knitted or crocheted ... cotton" at 11.5% ad valorem.1
9
That Van Dale must pay far higher duties on its imported merchandise under heading 6109, HTSUS, than under 6108 or 6114 is a consequence not of improper classification by the Customs Service, but choices by the Congress. We have no warrant, given this specific garment, to undo the decision of either.
CONCLUSION
10
Because we hold the merchandise at issue as an undershirt is similar to the T-shirts, singlets and tank tops listed as exemplars under heading 6109, HTSUS, the Customs Service properly classified the merchandise under that provision. Therefore the decision of the Court of International Trade so holding is
11
AFFIRMED.
1
On appeal, Van Dale does not raise the argument, made before the Court of International Trade, that the merchandise is properly classifiable under heading 6212, HTSUS, as "brassieres, girdles, corsets, braces, suspenders, garters and similar articles."
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711 F.2d 1050
Hawkinsv.JNO McCall Coal Export Corp.
82-1402
UNITED STATES COURT OF APPEALS Fourth Circuit
5/31/83
1
D.Md.
AFFIRMED
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757 N.W.2d 194 (2008)
276 Neb. 686
STATE of Nebraska ex rel. L. Tim Wagner, Director of Insurance of the State of Nebraska, as Liquidator of Amwest Surety Insurance Company, appellee,
v.
GILBANE BUILDING COMPANY, a Rhode Island corporation, appellant.
No. S-07-805.
Supreme Court of Nebraska.
October 31, 2008.
*197 Robert F. Craig and Jenna B. Taub, of Robert F. Craig, P.C., Omaha, for appellant.
Michael S. Degan and Theresa D. Koller, of Blackwell Sanders, L.L.P., Omaha, and Robert L. Nefsky of Rembolt Ludtke, L.L.P., Lincoln, for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
STEPHAN, J.
Amwest Surety Insurance Company (Amwest) was declared insolvent on June 7, 2001, and is the subject of a liquidation order entered pursuant to the Nebraska Insurers Supervision, Rehabilitation, and Liquidation Act (NISRLA).[1] The question presented in this appeal is whether the district court for Lancaster County erred in determining as a matter of law that four payments made by Amwest to Gilbane Building Company (Gilbane), the obligee on a performance bond, were preferences avoidable by the liquidator pursuant to § 44-4828. We affirm the judgment of the district court as to three of the payments. We reverse, and remand for further proceedings with respect to the remaining payment, which was made more than 4 months prior to the filing of the petition for liquidation, because there is a *198 genuine issue of material fact as to whether Amwest was insolvent at the time of the payment.
BACKGROUND
In 1997, Gilbane entered into a subcontract with Crane Plumbing & Heating Co., Inc. (Crane), under which Crane was to perform plumbing work on a construction project in Cambridge, Massachusetts. Pursuant to the subcontract, Crane obtained a "Labor and Material Payment Bond" and a "Performance Bond." Both bonds were issued by Amwest, as surety, on or about December 17, 1997. Gilbane was named as the obligee on each bond.
In January 2000, Crane abandoned the project and defaulted on its subcontract. Gilbane notified Amwest of the default and demanded that it complete Crane's portion of the project pursuant to the performance bond. Amwest subsequently made payments to Gilbane for costs associated with completion of Crane's contractual obligations. The first payment was made on January 5, 2001, when Amwest issued a check in the amount of $357,779.69 to Gilbane. Gilbane deposited the check on January 12. The second payment, a check in the amount of $26,150.23, was issued by Amwest to Gilbane on April 9 and deposited in Gilbane's account on or about April 10. The third payment, a check in the amount of $215,292.12, was issued by Amwest to Gilbane on April 13 and deposited in Gilbane's account on April 17. The final payment, a check in the amount of $4,222.04, was issued by Amwest on May 21 and deposited in Gilbane's account on May 24.
Amwest obtained a replacement subcontract for completion of the project. On March 28, 2001, Amwest and Gilbane entered into a release of the performance bond relating to the original subcontract with Crane, but not related to the replacement subcontract.
A petition to place Amwest in liquidation was filed on June 6, 2001, and Amwest was declared insolvent in an order entered on the following day. Subsequently, the Nebraska Director of Insurance, in his capacity as liquidator, filed a complaint alleging that the four payments made by Amwest to Gilbane in 2001 were preferential transfers voidable under § 44-4828 and seeking recovery in a total amount of $603,444.08 from Gilbane. Gilbane filed an answer denying the claims and setting forth several affirmative defenses. The parties filed cross-motions for summary judgment.
The district court entered summary judgment in favor of the liquidator and overruled Gilbane's motion. The court determined that the second, third, and fourth payments from Amwest to Gilbane were made within 4 months before the filing of the petition for liquidation and were therefore voidable as preferences.[2] The court further determined that there was no issue of material fact as to the insolvency of Amwest at the time of the first payment in January 2001. The court determined that all four payments were made by Amwest to Gilbane on account of an antecedent debt and that such payments allowed Gilbane to obtain a greater percentage of such debt than another creditor in the same class would receive. The court rejected Gilbane's contention that it was a mere conduit for another party and not an actual creditor responsible for a voidable preference. The district court also rejected Gilbane's contention that the transfers were made for a current expense in the ordinary course of business and, thus, not in satisfaction of an antecedent debt. Based upon these findings, the district *199 court entered judgment in favor of the liquidator and against Gilbane in the amount of $603,444.08.
Gilbane filed this timely appeal, and we moved it to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.[3]
ASSIGNMENTS OF ERROR
Quoted verbatim, Gilbane's brief assigns the following errors:
(1) The District Court erred in granting [the liquidator's] Motion for Summary Judgment because the [liquidator] failed to prove the statutory elements of a preference.
(2) The District Court erred in denying [Gilbane's] Motion for Partial Summary Judgment regarding affirmative defenses for preference actions.
(3) The District Court erred in overruling [Gilbane's] Motion for Summary Judgment.
The liquidator argues that these assignments are generalized and vague and should be disregarded by this court.
STANDARD OF REVIEW
Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.[4]
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.[5] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.[6]
ANALYSIS
As a threshold matter, we agree that Gilbane's assignments of error are broadly stated. A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered.[7] Accordingly, we consider the assignments of error only insofar as they are narrowed by the specific arguments asserted in Gilbane's brief.[8]
CONTROLLING PRINCIPLES
The issues presented in this appeal are governed by the provisions of NISRLA. NISRLA authorizes a liquidator to avoid certain transfers by the insolvent insurer, including those which constitute a preference.[9] A "preference" is defined by NISRLA as
a transfer of any of the property of an insurer to or for the benefit of a creditor, for or on account of an antecedent debt, made or suffered by the insurer within one year before the filing of a *200 successful petition for liquidation under the Nebraska Insurers Supervision, Rehabilitation, and Liquidation Act the effect of which transfer may be to enable the creditor to obtain a greater percentage of such debt than another creditor of the same class would receive.[10]
A preference may be avoided by the liquidator if the insurer was (1) insolvent at the time of the transfer; (2) the transfer was made within 4 months before the filing of the successful petition for liquidation; (3) the recipient or its agent had reasonable cause to believe the insurer was insolvent or was about to become insolvent at the time the transfer was made; or (4) the creditor receiving the transfer was a person with whom the insurer did not deal at arm's length, for example, an employee or attorney.[11] The term "[c]reditor" is defined by NISRLA as "a person having any claim, whether matured or unmatured, liquidated or unliqidated, secured or unsecured, or absolute, fixed, or contingent."[12] When a preference is voidable, the liquidator may recover the transferred property from the person who received it, subject to certain rights of bona fide purchasers.[13]
WAS GILBANE CREDITOR OF AMWEST?
Gilbane argues that the liquidator sued the wrong entity. It contends that it was not a creditor of Amwest potentially liable for a voidable preference, but was rather a "mere conduit" through which the payments made by Amwest passed en route to the owner of the construction project.[14] In rejecting this argument, the district court determined that Gilbane was the "general contractor on the project and, as such, was responsible to the owner for [its] completion." Gilbane describes its role in the project as a "construction manager" responsible for managing the project and administering payments on behalf of the owner and subcontractors.[15]
Whether Gilbane was the "general contractor" or "construction manager" does not matter. The relationship of the parties at the time of the transfers in question was defined by the performance bond, which stated that Crane as principal and Amwest as surety were "held and firmly bound unto GILBANE ... as Obligee" (emphasis supplied) in the amount of $2,120,000 "for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents." The bond further recites that Crane and Gilbane had entered into a contract for certain construction work on the Cambridge project and that the bond was given to secure performance of Crane's contractual obligations to Gilbane.
Suretyship is a contractual relation resulting from an agreement whereby one person, the surety, engages to be answerable for the debt, default, or miscarriage of another, the principal.[16] A surety on a performance bond is bound in the manner and to the extent provided in the obligation.[17] The performance bond at issue in this case bound Amwest to fulfill Crane's contractual obligations to Gilbane *201 in the event of Crane's default. When Crane defaulted, Gilbane asserted a claim that Amwest fulfill its obligations under the bond, and Amwest made payments directly to Gilbane pursuant to that obligation. Amwest and Gilbane were the only parties to the agreement to release of the performance bond.
These facts are clearly distinguishable from In re FSC Corp.,[18] the bankruptcy case upon which Gilbane relies. In that case, a corporation entered into an indenture agreement with a bank which was designated as the indenture trustee. The agreement was intended to facilitate a series of loans to the corporation made by investors who held debentures. The indenture agreement provided that the corporation would send semiannual interest payments to the bank for transmittal to debenture holders. While insolvent, and within 90 days prior to filing its petition in bankruptcy, the corporation made an interest payment to the bank, which transmitted the funds to debenture holders pursuant to the indenture agreement. The bankruptcy court held that while the corporation's transfer constituted a preference, the bank had no liability because it acted solely as the agent for its principals, the debenture holders.
In this case, Gilbane was the sole obligee named in the performance bond. It was not identified as an agent for a disclosed principal, as it now contends. The fact that Gilbane used the funds it received from Amwest to pay a replacement subcontractor demonstrates that the transfers were both to and for the benefit of Gilbane, in that they permitted the completion of Crane's original contractual obligation to Gilbane. There is no merit to Gilbane's argument that it was a "mere conduit" of the funds it received from Amwest.
CAN PAYMENTS MADE IN ORDINARY COURSE OF BUSINESS CONSTITUTE VOIDABLE PREFERENCES UNDER NISRLA?
Gilbane argues that because Amwest made the payments at issue in the ordinary course of its business as a surety, the payments cannot constitute voidable preferences. The federal Bankruptcy Code in effect in 2001 specifically provided that to the extent that a transfer was in payment of a debt incurred by the debtor "in the ordinary course of business or financial affairs of the debtor and the transferee" and the transfer was "made in the ordinary course of business or financial affairs of the debtor and the transferee" or "made according to ordinary business terms," it could not be avoided as a preference.[19] Although NISRLA contains no similar provision, Gilbane invites us to read an "ordinary course of business" exception into the statute, following the lead of an Ohio appellate court in an unpublished opinion.[20]
We decline the invitation. As we noted at the outset, the law applicable to this case is statutory. It is the Legislature's function through the enactment of statutes to declare what is the law and public policy.[21] The Legislature is presumed to know the general condition surrounding the subject matter of the legislative enactment, and it is presumed to know and contemplate the legal effect that accompanies *202 the language it employs to make effective the legislation.[22] As we have long held:
A statute is not to be read as if open to construction as a matter of course. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain the meaning. In the absence of anything to indicate the contrary, words must be given their ordinary meaning. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language.[23]
Where the Legislature does not enact an exception to a statutory rule, this court "must assume that the Legislature intended to do what it did."[24]
The ordinary course of business exception was codified in the federal Bankruptcy Code before the Nebraska Legislature enacted NISRLA in 1989.[25] Although the Legislature specifically exempted certain transfers from being considered as avoidable preferences,[26] it did not enact an ordinary course of business exception. As noted, it is not our function to create exceptions to statutory rules.[27] We agree with the district court that Amwest's obligation to Gilbane under the performance bond at the time of the principal's default was an "antecedent debt" for which the four challenged payments were made.
DO "NET RESULT RULE" AND § 44-4828(9) APPLY?
Gilbane argues that the district court erred in not applying the "net result rule," a principle once applied under the federal Bankruptcy Act of 1898 to claims for balances due on an open account.[28] The majority of courts have held that the net result rule is no longer viable, given subsequent amendments to the 1898 act.[29] More importantly, the net result rule is not included in NISRLA, so we need not discuss it further.
Gilbane makes a related argument that the district court erred in not applying § 44-4828(9), which provides:
If a creditor has been preferred and afterward in good faith gives the insurer further credit without security of any kind for property which becomes a part of the insurer's estate, the amount of the new credit remaining unpaid at the time of the petition may be set off against the preference which would otherwise be recoverable from him or her.
Gilbane's brief lacks any clear explanation of how this defense applies in this case, *203 and we perceive none. Gilbane did not advance credit to Amwest, and there is no claim of setoff. Section 44-4828(9) does not apply to this case.
WAS AMWEST INSOLVENT AT TIME OF TRANSFERS TO GILBANE?
The second, third, and fourth transfers from Amwest to Gilbane occurred within the 4-month period before Amwest filed its petition under NISRLA. Under § 44-4828(1)(b)(ii), the liquidator could avoid these transfers without proving that Amwest was insolvent at the time of the transfer. We conclude that the district court did not err in granting the liquidator's motion for summary judgment as to these transfers, totaling $245,664.39.
The transfer in January 2001 is more problematic. Because it occurred outside the 4-month period, the liquidator alleged and was obligated under § 44-4828(1)(b)(i) to prove that Amwest was insolvent at the time of the transfer. An insurer is considered "insolvent" under NISRLA if it is "unable to pay its obligations when they are due or when its admitted assets do not exceed its liabilities plus the greater of: (i) Any capital and surplus required by law to be maintained; or (ii) The total par or stated value of its authorized and issued capital stock."[30] As the party moving for summary judgment, the liquidator had the initial burden to show that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law.[31] Thus, the liquidator was required to produce evidence which, if uncontroverted, would establish that Amwest was insolvent at the time of the January 2001 payment to Gilbane.
In preference cases arising under federal bankruptcy law, courts have held that the testimony of an accountant or other financial expert is generally necessary to prove insolvency at the time of a challenged transfer.[32] Michael James Fitzgibbons, an accountant who served as special deputy receiver for Amwest, testified that Joseph J. DeVito was retained to review certain financial records which Fitzgibbons and others under his supervision had prepared to show the financial condition of Amwest as of June 30, 2000, and to determine whether Amwest was insolvent as of that date. Fitzgibbons acknowledged that he had not made any determination that Amwest was insolvent as of January 5, 2001, the date of the initial transfer to Gilbane, but, rather, drew the conclusion that Amwest was continually insolvent after June 30, 2000. The record includes reports purportedly authored by DeVito, one dated February 28, 2006, and the second dated June 28, 2006. Both reports are attached to the affidavit of an attorney representing the liquidator, which merely indicates that the reports are true and correct copies. The reports set forth DeVito's opinion regarding the insolvency of Amwest as of June 30, 2000, and subsequent to that date. Gilbane objected to "the relevancy, materiality and competency" of the DeVito reports. The district court took the objection under advisement and overruled it in its final order. For the sake of completeness, we note that while Gilbane's counsel stated during a November 25, 2005, hearing that DeVito's *204 deposition was taken, the deposition is not included in our record.
Although Gilbane did not assign error with respect to the court's ruling on its objections to the DeVito reports, it argues on appeal that the reports do not support the liquidator's contention that Amwest was insolvent as of the January 2001 payment to Gilbane. We agree, although for a different, more basic reason than that advanced by Gilbane. Neb.Rev. Stat. § 25-1332 (Cum. Supp. 2006) provides that the "evidence that may be received on a motion for summary judgment includes . . . affidavits." Such affidavits, however,
shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.[33]
The affidavit of counsel identifying the attached "true and correct" copies of DeVito's reports does not convert such reports into affidavits. The reports themselves are not sworn and do not meet the statutory definition of an affidavit.[34] Unsworn summaries of facts or arguments and of statements which would be inadmissible in evidence are of no effect in a motion for summary judgment.[35] Accordingly, we do not consider the DeVito reports on the question of whether Amwest's insolvency at the time of the first transfer was established as a matter of law.
This leaves only the "conclusion" drawn by Fitzgibbons from "operational results of Amwest . . . subsequent to June 30th of 2000" that Amwest was insolvent at all times subsequent to that date. The record does not reflect whether or not Fitzgibbons was "qualified as an expert by knowledge, skill, experience, training, or education"[36] to make this determination, or the methodology he utilized in doing so. Fitzgibbons' testimony is insufficient to meet the liquidator's prima facie burden on the issue of insolvency.
As a procedural equivalent to a trial, a summary judgment is an extreme remedy because a summary judgment may dispose of a crucial question in litigation, or the litigation itself, and may thereby deny a trial to the party against whom the motion for summary judgment is directed.[37] On this record, we simply cannot conclude as a matter of law that Amwest was insolvent within the meaning of NISRLA at the time of its initial payment to Gilbane in January 2001.
CONCLUSION
The district court correctly determined that the liquidator was entitled to summary judgment with respect to its claims that the three payments made by Amwest to Gilbane within 4 months prior to the filing of Amwest's petition for liquidation were voidable preferences for which Gilbane is liable to the liquidator. However, for the reasons discussed, we conclude that *205 the district court erred in granting summary judgment with respect to the initial payment made in January 2001, more than 4 months before the filing of the petition. On that issue, we reverse, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
NOTES
[1] Neb.Rev.Stat. §§ 44-4801 to 44-4862 (Reissue 1998).
[2] See § 44-4828(1)(b)(ii).
[3] See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
[4] State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008); State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
[5] Marcovitz v. Rogers, 276 Neb. 199, 752 N.W.2d 605 (2008); County of Hitchcock v. Barger, 275 Neb. 872, 750 N.W.2d 357 (2008).
[6] Id.
[7] Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004); Miller v. City of Omaha, 253 Neb. 798, 573 N.W.2d 121 (1998).
[8] See Trieweiler v. Sears, supra note 7.
[9] §§ 44-4821(u) and 44-4828(b).
[10] § 44-4828(1)(a).
[11] § 44-4828(b)(i) to (iv).
[12] § 44-4803(2).
[13] § 44-4828(1)(c).
[14] Brief for appellant at 9.
[15] Id.
[16] See, Rodehorst v. Gartner, 266 Neb. 842, 669 N.W.2d 679 (2003); Sawyer v. State Surety Co., 251 Neb. 440, 558 N.W.2d 43 (1997).
[17] See School Dist. No. 65R v. Universal Surety Co., 178 Neb. 746, 135 N.W.2d 232 (1965).
[18] In re FSC Corp., 64 B.R. 770 (Bkrtcy. W.D.Pa.1986).
[19] 11 U.S.C. § 547(c)(2) (2000).
[20] Covington v. HKM Direct Market Communications, Inc., No. 03AP-52, 2003 WL 22784378 at *2 (Ohio App. Nov. 25, 2003) (unpublished opinion).
[21] Stewart v. Bennett, 273 Neb. 17, 727 N.W.2d 424 (2007).
[22] Id., citing Ludwig v. Board of County Commissioners, 170 Neb. 600, 103 N.W.2d 838 (1960).
[23] Bachus v. Swanson, 179 Neb. 1, 4, 136 N.W.2d 189, 192 (1965).
[24] Loewenstein v. Amateur Softball Assn., 227 Neb. 454, 458, 418 N.W.2d 231, 234 (1988).
[25] See, 11 U.S.C. § 547; §§ 44-4801 to 44-4862. See, also, In re Paris Industries Corp., 130 B.R. 1 (Bkrtcy.D.Me.1991); In re Cook United, Inc., 117 B.R. 884 (Bkrtcy.N.D.Ohio 1990).
[26] See § 44-4828(4) and (9).
[27] See, e.g., Stewart v. Bennett, supra note 21; Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005); Loewenstein v. Amateur Softball Assn., supra note 24; Bachus v. Swanson, supra note 23.
[28] Brief for appellant at 16. See, Yaple v. Dahl-Millikan Grocery Co., 193 U.S. 526, 24 S.Ct. 552, 48 L.Ed. 776 (1904); Jaquith v. Alden, 189 U.S. 78, 23 S.Ct. 649, 47 L.Ed. 717 (1903).
[29] In re Frigitemp Corp., 753 F.2d 230 (2d Cir.1985); In re Wadsworth Bldg. Components, Inc., 711 F.2d 122 (9th Cir.1983); In re Fulghum Const. Corp., 706 F.2d 171 (6th Cir. 1983); In re Swallen's, Inc., 266 B.R. 807 (Bkrtcy.S.D.Ohio 2000).
[30] § 44-4803(14)(b).
[31] See, Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008); Malolepszy v. State, 273 Neb. 313, 729 N.W.2d 669 (2007); Lovette v. Stonebridge Life Ins. Co., 272 Neb. 1, 716 N.W.2d 743 (2006).
[32] See, In re Roblin Industries, Inc., 78 F.3d 30 (2d Cir.1996); In re Prime Realty, Inc., 380 B.R. 529 (8th Cir.BAP2007); In re Doctors Hosp. of Hyde Park, Inc., 360 B.R. 787 (Bkrtcy.N.D.Ill.2007); In re Indus. Ceramics, Inc., 253 B.R. 323 (Bkrtcy.W.D.N.Y.2000).
[33] Neb.Rev.Stat. § 25-1334 (Reissue 1995).
[34] Neb.Rev.Stat. § 25-1241 (Reissue 1995).
[35] Kulhanek v. Union Pacific RR., 8 Neb.App. 564, 598 N.W.2d 67 (1999). See White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988).
[36] See Neb.Rev.Stat. § 27-702 (Reissue 1995).
[37] Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000); Bruning v. Law Offices of Ronald J. Palagi, 250 Neb. 677, 551 N.W.2d 266 (1996).
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654 F.3d 1322 (2011)
Melissa CLOER, M.D., Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
No. 2009-5052.
United States Court of Appeals, Federal Circuit.
August 5, 2011.
*1323 Robert T. Fishman, of Denver, CO, argued for petitioner-appellant on rehearing en banc. With him on the brief was Mari *1324 C. Bush, Kaye and Bush, LLC, of Denver, CO. Of counsel on the brief was Robert T. Moxley, Robert T. Moxley, P.C., of Cheyenne, WY.
Anisha S. Dasgupta, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee on rehearing en banc. With her on the brief were Tony West, Assistant Attorney General, Timothy P. Garren, Director, Mark W. Rogers, Deputy Director, Gabrielle M. Fielding, Assistant Director. Of counsel on the brief were Thomas M. Bondy, Attorney, and Lynn E. Ricciardella, Trial Attorney.
Martin James Martinez, Martinez Law Office, of Napa, CA, amicus curiae on rehearing en banc.
Thomas Neville, Ogborn Summerlin & Ogborn, LLC, of Denver, CO, for amicus curiae Colorado Trial Lawyers Association on rehearing en banc.
Clifford J. Shoemaker, Shoemaker & Associates, of Vienna, VA, for amicus curiae National Vaccine Information Center on rehearing en banc.
Kevin P. Conway, Conway, Homer & Chin-Caplan, P.C., of Boston, MA for amici curiae the Vaccine Injured Petitioners' Bar Association, et al. on rehearing en banc.
Before RADER, Chief Judge, NEWMAN, LOURIE, CLEVENGER, BRYSON, GAJARSA,[*] LINN, DYK, PROST, MOORE, O'MALLEY, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge CLEVENGER, in which Chief Judge RADER and Circuit Judges LOURIE, BRYSON, GAJARSA, PROST, MOORE, and O'MALLEY join. Dissenting opinion filed by Circuit Judge DYK, in which Circuit Judges NEWMAN, LINN, and REYNA join.
CLEVENGER, Circuit Judge.
This case involves the interpretation and application of the statute of limitations in the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 ("Vaccine Act"). The statute of limitations provides that if a vaccine-related injury occurred as a result of the administration of a vaccine, "no petition may be filed for compensation under the Program for [a vaccine-related] injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset ... of such [vaccine-related] injury." 42 U.S.C. § 300aa-16(a)(2).
Dr. Melissa Cloer received three Hepatitis-B ("Hep-B") vaccinations in 1996 and 1997. Years later, in 2005, Dr. Cloer filed a claim under the National Vaccine Injury Compensation Program ("Vaccine Program"), established by the Vaccine Act, seeking compensation for a multiple sclerosis ("MS") injury she alleged was caused by the administration of the vaccine. The Chief Special Master and Court of Federal Claims dismissed Dr. Cloer's claim as untimely because it was filed more then 36 months after her first symptom of MS occurred in 1997. Cloer v. Sec'y of Health & Human Servs., 85 Fed.Cl. 141 (2008). Dr. Cloer appealed the decision and a panel of this court reversed, ruling in her favor. Cloer v. Sec'y of Health & Human Servs., 603 F.3d 1341 (Fed.Cir.2010), vacated, 399 Fed.Appx. 577 (Fed.Cir.2010). Subsequently, we granted the petition of respondent and appellee Secretary of Health and Human Services ("the government") to rehear the case en banc, vacated the panel opinion, Cloer, 399 Fed.Appx. at 577, and requested additional briefs from the parties.
Consistent with the plain meaning of the statute, we hold that the statute of limitations *1325 of the Vaccine Act begins to run on the calendar date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner. Because Dr. Cloer's first symptom of MS, recognized as such at the time she suffered the symptom, occurred more than 36 months before the filing of her petition for compensation, her claim is time-barred. We today also reverse our previous holding in Brice v. Secretary of Health & Human Services, 240 F.3d 1367 (Fed.Cir.2001) ("Brice"), which precluded application of the doctrine of equitable tolling in Vaccine Act cases, but reject the ground upon which Dr. Cloer seeks the benefit of equitable tolling in this case. We thus affirm the judgment of the Court of Federal Claims dismissing Dr. Cloer's claim as untimely.
In Part I below, we briefly address the background against which Congress enacted the Vaccine Act and in particular the statute of limitations chosen by Congress. Part II sets forth the essential facts of the case. In Part III, we discuss the proceedings before the Chief Special Master and the Court of Federal Claims. Part IV states our standard of review. In Part V, we set forth and respond to the three arguments Dr. Cloer presented to the court in her initial briefs and at the initial panel hearing of the case. In Part VI, we address and answer the three specific questions on which we requested additional briefing to the en banc court. Our en banc hearing focused on these questions.
I
In 1986, Congress established the Vaccine Program to provide compensation for vaccine-related injuries and deaths. See 42 U.S.C. § 300aa-10. The Vaccine Act creates a "no-fault" Federal program for compensating injuries that are either presumed or proven to be causally connected to vaccines. The Vaccine Act arose because "the Nation's efforts to protect its children by preventing disease have been [] a success," but "[w]hile most of the Nation's children enjoy greater benefit from immunization programs, a small but significant number have been gravely injured." H.R.Rep. No. 99-908, at 4 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6345. However, "at least in part as a result of [the] increase in litigation, the prices of vaccines [] jumped enormously." Id. Congress created the Vaccine Program to balance these two primary concerns that the tort system was failing to adequately compensate persons injured from vaccinations that were undergone for the public good and that excessive tort liability was unsustainably raising prices and discouraging vaccine manufacturers from remaining in the market. See id. at 3-7, reprinted in 1986 U.S.C.C.A.N. at 6344-48.
Congress noted "for the relatively few who are injured by vaccines through no fault of their own the opportunities for redress and restitution [were] limited, time-consuming, expensive, and often unanswered." Id. at 6, reprinted in 1986 U.S.C.C.A.N. at 6347. In response, Congress created the Vaccine Program to be "simple, and easy to administer" while also being "expeditious and fair." Id. at 7, 12, reprinted in 1986 U.S.C.C.A.N. at 6348, 6353. To compensate injured persons quickly and fairly, the Vaccine Act exempted petitioners from the tort requirements of demonstrating that a manufacturer was negligent or that a vaccine was defective. Id. at 12-13, reprinted in 1986 U.S.C.C.A.N. at 6353-54. For some injuries which the medical profession at large recognized as especially likely to be caused by vaccine administration, Congress exempted petitioners from the burden of proving causation. Id. In sum, while the Vaccine Act does not prohibit a petitioner from going to state court after completion or unfair delay of the compensation proceedings, the Vaccine Program was intended *1326 to "lessen the number of lawsuits against manufacturers" and "provide[] relative certainty and generosity" of compensation awards in order to satisfy petitioners in a fair, expeditious, and generous manner.[1]Id.
The legislative history shows that Congress considered alternative statutes of limitation for claims filed in the Vaccine Program. The House of Representatives version, H.R. 1780, introduced on March 27, 1985, provided that "any claim under this title that is filed more than two years after the first manifestation of a vaccinerelated injury shall be barred." National Childhood Vaccine-Injury Compensation Act of 1985, H.R. 1780, 99th Congress § 2112(a) (1985). A subsequent Senate bill, S. 827, introduced on April 2, 1985, took a different approach. Unlike H.R. 1780, S. 827 did not trigger the statute of limitations upon the occurrence of the first manifestation of an injury. Instead, it provided that actions for compensation "shall be barred if the petitioner fails to file the action ... within 5 years after the occurrence of the compensable complication or residual effect of the illness, disability [or] injury." National Childhood Vaccine Injury Compensation Act of 1985, S. 827, 99th Congress § 2106(a) (1985). In addition, the 5 year statute did not apply at all if a petitioner could demonstrate that she either (a) did not receive the parent information about vaccines required under the bill, or (b) did not know the complication or effect of her injury was compensable under the program. Id. § 2106(b). S. 827 set forth a Vaccine Table, listing specific vaccines, specific injuries, and specific time periods for the first symptom or manifestation of onset of a listed injury after administration of a vaccine. Compensation was required if a petitioner could meet the specified time periods for a listed vaccine and injury. But if a petitioner could not meet the time period requirements, the petitioner could still prevail if "the petitioner demonstrates on the basis of credible evidence" that the injury "suffered by petitioner was caused by a vaccine listed in the Vaccine Injury Table." Id. § 2105(a)(2). The Senate bill thus incorporated both strict liability and causation in fact liability.
Ultimately, Congress settled on the former of the two approaches. H.R. 5546 (September 18, 1986) followed the approach of H.R. 1780, and provided that if a vaccine-related injury occurred as a result of the administration of a vaccine listed on the Vaccine Injury Table, "no petition may be filed for compensation under the Program after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset ... of such injury." National Childhood Vaccine Injury Act of 1986, H.R. 5546, 99th Congress § 2116(a)(1)(B) (1986). Both the House and Senate passed H.R. 5546, as incorporated into S. 1744, and the statute of limitations was signed into law on November 14, 1986 as part of the National Childhood Vaccine Injury Act of 1986. Pub.L. No. 99-660, 100 Stat. 3743 (1986).
The legislative record is thus clear that Congress chose to trigger the statute of limitations from the date of the occurrence of the first symptom or manifestation of onset of an injury, not from the date of the injury itself. Further, Congress was alerted to the consequences of its choice. For example, at a July 18, 1985 Senate Hearing before the Committee on Labor and Human Resources, the president of Dissatisfied Parents Together ("DPT") submitted testimony comparing the different pending *1327 House and Senate bills. See To amend the Public Health Service Act to provide for the compensation of children and others who have sustained vaccine-related injuries, and for other purposes: Hearing on S. 827 before the S. Comm. on Labor and Human Res., 99th Cong. 41 (1985) (statement of Jeffrey H. Schwartz, President of DPT). The testimony noted that under the Senate proposal, S. 827, a claim "must be filed within five years of occurrence of injury" but "[t]his limitation does not apply if claimant did not receive the required parent information packet or did not know the injury was compensable." Id. at 56. The testimony sharply contrasted this with the pending House proposal, H.R. 1780, under which a claim "must be filed within 2 years after first manifestation of injury" and "[t]his limit applies regardless of when claimant discovered the causal link between the injury and the vaccine." Id.
From the above, we note that the Vaccine Act, as enacted, reflects a specific decision by Congress that the Act's statute of limitations would begin to run not on the date of injury (as is sometimes seen in other contexts), but on the date that injury first became symptomatic or manifested.
II
The essential facts of this case are undisputed. Petitioner Melissa Cloer is a physician with MS.[2] Prior to receiving her Hep-B immunizations in 1996 and 1997, Dr. Cloer had no significant medical issues and enjoyed generally good health. Dr. Cloer received her first two doses of Hep-B vaccine without major incident and received her third and final vaccination on April 3, 1997. Approximately one month thereafter she began to experience numbness in her left forearm and hand. She also began to experience what she described as an "electric shock sensation" with "electric like sensations going down the center of her back to both feet with forward head flexion." This sensation is known as Lhermitte sign, long recognized by the medical profession as a common symptom of MS. See Dorland's Illustrated Medical Dictionary 1700 (30th ed.2003) (defining Lhermitte sign as the development of sudden, transient, electric-like shocks spreading down the body when the patient flexes the head forward; seen mainly in multiple sclerosis but also in compression and other disorders of the cervical cord).
In 1998, about a year after her final vaccination, Dr. Cloer sought treatment from Dr. Michael Andrew Meyer, an expert in the field of neurology with a specialty in MS. After an MRI examination, Dr. Meyer noted "probable early inactive non-progressive CNS [central nervous system] demyelination/MS," although he explained that her situation did not meet "formal diagnostic criteria for clinically definite MS." Cloer, 85 Fed.Cl. at 144. Even so, because the MRI revealed lesions on the white matter of her central nervous system, Dr. Meyer concluded that Dr. Cloer could have MS, Singular Sclerosis, Lyme Disease, and/or acute disseminating encephalomyelitis, along with other demyelinating processes. Id. at 143. Before the Chief Special Master, Dr. Meyer testified that Dr. Cloer suffered from MS in *1328 1998 because "the first MS related symptom was the [Lhermitte's] phenomenon that she had in 1997." Cloer v. Sec'y of the Dep't of Health & Human Servs., No. 05-1002V, 2008 WL 2275574, at *6 (Fed.Cl.Sp. Mstr.2008) ("Special Master Opinion"), aff'd, 85 Fed.Cl. 141 (2008).
On May 6, 1999, Dr. Cloer received a neurological examination from Dr. Ted Colapinto. Cloer, 85 Fed.Cl. at 144. Dr. Colapinto noted Dr. Cloer's medical history and recorded her complaints of numbness in her face, arms and legs, and her difficulty in walking. Id. He concluded that Dr. Cloer's symptoms likely represented a demyelinating disease, commenting that "[Dr. Cloer] is having waxing and waning neurological symptoms in multiple areas of her body. I fear that this may likely represent demyelinating disease." Sp. Mstr. Op., 2008 WL 2275574, at *6. Dr. Cloer continued to suffer from numerous, but somewhat fleeting, symptoms. In May 2004, Dr. Cloer applied for and was awarded monthly Social Security disability benefits. Dr. James P. Metcalf conducted a comprehensive medical examination at the time and noted that appellant "first beg[a]n to have some symptoms consistent with MS in 1997," although her "symptoms waxed and waned until the fall of 2003 when she beg[a]n to have manifestations of the full blown disease." Id. at *2.
Dr. Cloer claims that even in 2003 upon receiving a diagnosis of MS she remained unaware of any causal association between the Hep-B vaccine and MS. Dr. Cloer testified that she first became aware of the possible link when she read an editorial and prospective French study in the September 2004 issue of Neurology. Cloer Aff., J. App'x 270-71; see also Robert T. Naismith, M.D. & Anne H. Cross, M.D., Does the hepatitis B vaccine cause multiple sclerosis?, 63 Neurology 772 (Sept. 2004); and Miguel A. Hernán, M.D. et al., Recombinant hepatitis B vaccine and the risk of multiple sclerosis, 63 Neurology 838 (Sept.2004). On October 11, 2004, Dr. Cloer reported to the Vaccine Adverse Event Reporting System that she had experienced numbness and tingling after her first two Hep-B vaccinations, followed by "Lhermitte's" approximately one month after her third vaccination. Sp. Mstr. Op., 2008 WL 2275574, at *1-2. Dr. Cloer subsequently filed her petition for compensation for a vaccine injury on September 16, 2005. Cloer, 85 Fed.Cl. at 144.
III
Before the Chief Special Master, Dr. Cloer did not challenge the evidence that she had suffered symptoms of MS, and likely the manifestation of onset of MS, more than three years before the filing of her petition, thus time-barring her petition. Instead, Dr. Cloer's primary argument to the Chief Special Master was that the statute of limitations did not begin to run against her until after receipt of a "clinically definite" diagnosis of MS. Dr. Meyer, Dr. Cloer's treating physician, explained that because Dr. Cloer's symptoms did not amount to a clinically definite diagnosis of MS until November 2003, Dr. Cloer was unaware of her injury until this time, and thus also could not have been aware that the Hep-B vaccine caused her injury. Since Dr. Cloer's petition was filed in September 2005, she argued it was filed within the 3 year statute of limitations of when she was first diagnosed with MS. Essentially, Dr. Cloer asked the Chief Special Master to read the phrase "symptom or manifestation of onset" as only triggering upon a symptom or manifestation that is clinically diagnosed as the disease itself.
Relying on precedent of this court, the Chief Special Master rejected Dr. Cloer's theory and held that the statute of limitations begins to run on the occurrence of *1329 the first symptom or manifestation of onset of the injury that the petitioner alleges has resulted from the vaccination. The Chief Special Master discussed at length our decision in Markovich v. Secretary of Health & Human Services, 477 F.3d 1353 (Fed.Cir.2007), quoting that "the terms of the Vaccine Act demonstrate that Congress intended the limitation period to commence to run prior to the time a petitioner has actual knowledge that the vaccine recipient suffered from an injury that could result in a viable cause of action under the Vaccine Act." Sp. Mstr. Op., 2008 WL 2275574, at *5 (quoting Markovich, 477 F.3d at 1358). The Chief Special Master expressly dismissed Dr. Cloer's argument that a "clinically definite" diagnosis is required by Markovich:
Petitioner misreads Markovich. The Court's holding was that for purposes of § 300aa-16(a)(2), "the first symptom or manifestation of onset" is the "first event objectively recognizable as a sign of a vaccine injury by the medical profession at large." Markovich, 477 F.3d at 1360. There is no requirement that the vaccine injury be diagnosed.
Id. at *9.
Just as she did before the Chief Special Master, Dr. Cloer focused her argument at the Court of Federal Claims on her failure to receive a "clinically definite" diagnosis of MS until 2003, elaborating that "because the first set of symptoms may be premature for a definitive diagnosis of a disease, it cannot itself constitute a `vaccine injury.'" She also pointed to 42 U.S.C. § 300aa-11(c)(1)(D)(i), which contains a petition content requirement stating that "a petition for compensation ... for a vaccine-related injury ... shall contain ... an affidavit, and supporting documentation, demonstrating that the person ... suffered the residual effects or complications of such illness, disability, injury, or condition for more than 6 months after administration of the vaccine...." Because of this requirement, she argued that the statute of limitations does not begin to run until a petitioner has suffered the residual effects or complications for more than 6 months after administration of the vaccine. She alleged as a matter of fact that she did not meet this requirement until late in 2003, which if true, would bring her 2005 petition within the statute of limitations. Finally, she asked for relief by way of equitable tolling, notwithstanding our opinion in Brice that equitable tolling is not available under the Vaccine Act. She sought relief under equitable tolling because she was not diagnosed with MS until 2003 and there was no reason for her to suspect a vaccine link to MS until 2004. Cloer, 85 Fed.Cl. at 145, 149.
The Court of Federal Claims rejected Dr. Cloer's arguments. The court understood Dr. Cloer's primary argument to be that a "vaccine-related" injury could not occur based on the first occurrence of a symptom of the injury, but instead would arise from "a physician's ultimate diagnosis" that the "vaccine caused the complained-of specific injury." Id. at 149. The court held her argument "contrary to Markovich, which held that the limitations period begins to run at the first occurrence of a symptom even though an exact diagnosis may be impossible until some future date when more symptoms or medical data are forthcoming." Id. Referring to the trigger for the statute of limitations, the court quoted from Markovich: "Congress intended the limitations period to commence to run prior to the time a petitioner has actual knowledge that the vaccine recipient suffered from an injury that could result in a viable cause of action under the Vaccine Act." Id. (quoting Markovich, 477 F.3d at 1358). The court also relied on the observation in Brice that the statute begins to run "upon the first symptom or manifestation of the onset of injury, even if the petitioner would not have known at *1330 that time that the vaccine had caused an injury." Brice, 240 F.3d at 1373.
The court held that the Lhermitte sign in 1997 was the first symptom of Dr. Cloer's MS and triggered the statute of limitations, Cloer, 85 Fed.Cl. at 147-49, which the court held is unaffected by the 6 month requirement in 42 U.S.C. § 300aa-11(c)(1)(D)(i). The court found Dr. Cloer's petition is time barred and affirmed the Chief Special Master. The court also noted that Brice bars Dr. Cloer's request for relief by way of equitable tolling of the statute of limitations. Id. at 149, 152.
IV
We review the Special Master's decision under the same arbitrary and capricious standard as did the Court of Federal Claims. 42 U.S.C. § 300a-129(e)(2)(B); Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.Cir.2005). We owe no deference on questions of law, Whitecotton ex rel. Whitecotton v. Sec'y of Health & Human Servs., 81 F.3d 1099, 1106 (Fed.Cir.1996), but review factual findings for clear error, Hines ex rel. Sevier v. Sec'y of Health & Human Servs., 940 F.2d 1518, 1523 (Fed.Cir.1991). In this case we are concerned with issues of statutory interpretation: what constitutes a "vaccine-related injury" and what event triggers the running of the Vaccine Act's statute of limitations.
V
In her initial appeal briefs, Dr. Cloer abandons her argument that no vaccine-related injury can occur before a clinically definite diagnosis is made. Instead, she argues that a "vaccine-related injury" for purposes of the Vaccine Act and its statute of limitations cannot occur until the medical community at large understands and recognizes the causal relationship between the claimed injury and the administration of a vaccine. Dr. Cloer alleges that because an injury cannot be alleged as "vaccine-related" until after this recognition, any other interpretation of the statute of limitations would be unfair. Dr. Cloer also argues that the statute of limitations should not trigger until after a petitioner has suffered from six months of consistent, clinically-related symptoms, citing 42 U.S.C. § 300aa-11(c)(1)(D)(i). Otherwise, because a petitioner is required to attest, as a petition requirement, to residual effects or complications lasting "more than 6 months after the administration of the vaccine," Dr. Cloer argues the statute of limitations would be unfairly reduced to less than 36 months. Finally, Dr. Cloer requests that this court reconsider the holding in Brice that equitable tolling is not available under the Vaccine Act.
As noted above, the panel opinion ruled in Dr. Cloer's favor, accepting her argument that the statute of limitations begins to run upon formation of a consensus in the medical community that a vaccine causes the injury claimed. The panel did not reach Dr. Cloer's other arguments. Because the panel opinion is vacated, we respond to her original arguments in subparts A, B, and C below.
A
We first address Dr. Cloer's primary argument on appeal that a "vaccine-related" injury only arises upon a medically established causal link between an injury and the vaccine in question. Our analysis must begin with the plain language of the statute. The Vaccine Act states that "if a vaccine-related injury or death occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset" of injury. 42 U.S.C. § 300aa-16(a)(2). The plain language of the Vaccine Act thus requires injured parties to file Vaccine Program petitions within 36 months of the date of *1331 the first symptom or manifestation of onset of the "vaccine-related injury."
The Act defines "vaccine-related injury or death" as:
[A]n illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Table, except that the term does not include an illness, injury, condition, or death associated with an adulterant or contaminant intentionally added to such a vaccine.
42 U.S.C. § 300aa-33(5). As both Dr. Cloer and the government recognize, this definition does not provide definitive guidance for us on the specific argument put forward by Dr. Cloer. However, "[a]s a rule, a definition which declares what a term `means' ... excludes any meaning that is not stated." Burgess v. United States, 553 U.S. 124, 130, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) (quoting Colautti v. Franklin, 439 U.S. 379, 392-93 n. 10, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979)). Thus, we begin with a hesitation to read a causal link requirement into the term when no such link is included in the explicit statutory definition. Moreover, "[a] term appearing in several places in a statutory text is generally read the same way each time it appears." Ratzlaf v. United States, 510 U.S. 135, 143, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). As the term "vaccine-related injury" appears throughout the Vaccine Act, we must analyze the effects of adopting Dr. Cloer's contention that the term always requires recognition in the medical community of a causal link between the vaccine and the injury.
The Vaccine Act provides a Vaccine Injury Table of vaccines and the injuries commonly associated with the use of each vaccine. See 42 U.S.C. § 300aa-14; see also 42 C.F.R. § 100.3(a) (containing updated Table). For injuries listed in the Table, generally referred to as "Table injuries," a petitioner need only prove that the first symptom or manifestation of onset occurred within the time period after vaccine administration set forth in the Vaccine Injury Table in order to receive compensation, see 42 U.S.C. § 300aa-11(c)(1)(C)(i), unless the government can prove that a factor unrelated to the vaccination actually caused the illness, disability, or condition. See Pafford v. Sec'y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed.Cir.2006) (citing 42 U.S.C. § 300aa-13(a)(1)(A),(B)). For these injuries recognized by the medical community as linked to vaccine administration, Congress eliminated the petitioner's burdensome proof requirement. For "non-Table injuries," a petitioner must prove the injury was caused by the vaccine. See 42 U.S.C. § 300aa-11(c)(1)(C)(ii).
A "vaccine-related injury" is the subject of the petition for compensation in both Table and non-Table cases. For Table injury cases, the statute specifically defines for each vaccine the "vaccine-related" injuries for which compensation is assured. For example, a petitioner who suffers from a symptom of an anaphylactic shock injury within four hours of receiving a DTaP vaccine is presumed to have been injured by the vaccine. See 42 C.F.R. § 100.3(a). But for non-Table injuries, a petitioner must file an affidavit and supporting documentation demonstrating that the "vaccine-related injury" for which compensation is sought was caused by a vaccine.[3]
*1332 The statute of limitations for the Act uses the same "vaccine-related injury" terminology.
In the case of ... a vaccine set forth in the Vaccine Injury Table which is administered after October 1, 1988, if a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury....
42 U.S.C. § 300aa-16(a)(2) (emphasis added).
Dr. Cloer would read "vaccine-related injury" throughout the Vaccine Act to require that the alleged injury must be objectively recognized by the medical community as related to the vaccine before it can be deemed a "vaccine-related injury." Accordingly, the statute of limitations would not begin to run on prospective petitioners until after this recognition is established. However, the statute is clear that only "[a] person who has sustained a vaccine-related injury ... may, if the person meets the requirements of subsection (c)(1) of this section [listing the required elements of a petition], file a petition for compensation under the Program." 42 U.S.C. § 300aa-11(b)(1)(A) (emphasis added). Under Dr. Cloer's view that no vaccine-related injury exists until there is consensus in the medical community of a causal link between an injury and a vaccine, the key element of the petition for compensation the vaccine injury does not arise until the requisite medical consensus exists. For example, in this case, it is agreed that even now there is not medical consensus of a causal link between the Hep-B vaccine and MS. Thus, under Dr. Cloer's definition of vaccine-related injury, she, like the great majority of non-Table injury petitioners, would lack standing to file a petition until the requisite medical consensus arises. Any construction that would result in a party suffering from a non-Table injury to be unable to file a petition because the alleged injury is not recognized by the medical community at large cannot be what Congress intended.[4]
*1333 Further, settled law establishes a firm default rule that a cause of action arises at the same time the statute of limitations begins to run on the cause. See Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005) ("Congress generally drafts statutes of limitations to begin when the cause of action accrues."). The Supreme Court has recognized that Congress is free to provide the "odd result" of a cause of action that arises at a time different from the beginning of a statute of limitations, see Reiter v. Cooper, 507 U.S. 258, 267, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993), but only by explicitly rejecting the default rule. See Dodd v. United States, 545 U.S. 353, 359-60, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). Under Dr. Cloer's interpretation of a vaccine-related injury, her claim for compensation would accrue (thus letting her petition go forward) before medical consensus as to causation exists. To succeed, she must show that Congress meant to divorce the date of accrual of her cause of action from the date that the statute of limitations begins to run. She faces the heavy burden of proving that Congress intended the odd result of breaching the firm default rule. Nothing in the text of the Vaccine Act demonstrates that Congress made a deliberate choice to allow a cause of action for a vaccine-related injury to accrue before the Vaccine Act's statute of limitations begins to run.[5]
*1334 In addition, we note an unintended result that would occur were we to accept Dr. Cloer's argument that the statute of limitations for a non-Table injury does not begin to run until the medical community at large recognizes a causal link between a vaccine and a claimed injury. Congress recognized that the Vaccine Injury Table could be revised such that a person not previously eligible for compensation might become eligible to seek compensation for the newly-recognized Table Injury. In such instances, Congress wrote a special statute of limitations that permits a claim for compensation under the revised Vaccine Injury Table if a vaccine-related death or injury occurred less than 8 years before the revision of the Vaccine Injury Table and the claim is filed within 2 years after the effective date of the revision. See 42 U.S.C. § 300aa-16(b). If Dr. Cloer's trigger for the statute of limitations for a non-Table injury were accepted, she and those similarly situated would enjoy a more generous statute of limitations than Congress provided for Table Injury petitioners, for whom causation is presumed. We do not think Congress would have intended such a result.
The correct interpretation of the term "vaccine-related injury" is plain from the language of the statutory provisions that set forth the statute of limitations and the requirements for a petition. For Table injury cases where causation is presumed, the vaccine-related injury is the injury specified in the Vaccine Injury Table for which a petitioner seeks compensation. For non-Table injury cases where the petitioner must establish causation, the vaccine-related injury is the injury which the petitioner avers is caused by the vaccine. The statute of limitations on its face requires a petition for compensation to be filed within 36 months after the date of occurrence of the first symptom or manifestation of onset of vaccine-related injury. The statutory language, however, begs the question of the test for recognition of the existence of a symptom or manifestation of onset of an injury. In short, who decides if a symptom or manifestation of an injury has occurred? We were faced with, and decided, that question in Markovich. 477 F.3d at 1360.
In that case, the parents of a child sought compensation for seizure disorders suffered by the child after administration of a vaccine. On the day of administration of the vaccine, July 10, 2000, the child began to rapidly blink her eyes. The eye-blinking episodes continued for more than a month and culminated in a grand mal seizure. Id. at 1354-55. Under recognized standards of the medical profession at large, the eye-blinking episodes were symptoms of the seizure activity for which compensation was sought. The government argued that the first of such symptoms, on July 10, 2000, triggered the statute of limitations and required dismissal of the petition, which had been filed more than three years from the July 10 date. The petitioners argued for a subjective test to determine when the first symptom occurs. Accordingly, they argued that the symptom of the injury had to be understood as such by the parents. Because they thought the first blinking episodes were simply everyday events meaning the child was tired, they argued that the statute of limitations did not begin to run until August 30, 2010, when they became aware that their child had an injury. Under their view of how a symptom should be *1335 determined, their petition was timely. Id. at 1356-57.
Markovich thus resolved the dispute:
A subjective standard that focuses on the parent's view would result in an uneven and perhaps overly broad application of the statute of limitations dependent entirely on the subjective perceptions of lay persons having widely varying degrees of medical awareness or training. On the other hand, an objective standard that focuses on the recognized standards of the medical profession at large treats petitioners equally, without regard to their individual medical awareness. An objective standard is consistent with the statutory requirement that the first symptom or manifestation of onset of the injury begins the running of the statute of limitations, as well as the cases ... that have consistently construed the Vaccine Act to include subtle symptoms that would be recognizable to the medical profession at large but not necessarily to the parent.
477 F.3d at 1360.
We thus held that the first symptom or manifestation of onset of a vaccine-related injury is "the first event objectively recognizable as a sign of a vaccine injury by the medical profession at large." Id. The analysis and conclusion in Markovich is correct. The statute of limitations in the Vaccine Act begins to run on the date of occurrence of the first symptom or manifestation of onset of the vaccine-related injury for which compensation is sought, and the symptom or manifestation of onset must be recognized as such by the medical profession at large.
B
In order to file a petition, a claimant must attest, inter alia, that she has "suffered the residual effects or complications of such illness, disability, injury, or condition for more than 6 months after the administration of the vaccine." 42 U.S.C. § 300aa-11(c)(1)(D)(i). Dr. Cloer argues that because her symptoms were fleeting, she could never have met this requirement until late 2003 when her symptoms were continuous and related enough to be deemed "residual effects or complications" of her Hep-B vaccinations. The government responds that the petition requirements are wholly separate from the statute of limitations and should not be read to extend the filing date of the petition beyond 36 months.
We agree with the government that the 6 month requirement is a condition precedent to filing a petition for compensation, not a limitation on the 3 year statute of limitations. The 6 month provision is a petition content requirement to which no reference is made in the statute of limitations. Had Congress intended to adjust the statute of limitations in light of the petition content requirement, we think it would have done so in the statute of limitations. We thus agree with the Court of Federal Claims that there is no support for Dr. Cloer's argument in the text of the Act, nor any in the case law. Congress included the 6 month petition requirement "to limit the availability of the compensation system to those individuals who are seriously injured from taking a vaccine." H.R.Rep. No. 100-391(I), at 699 (1987), reprinted in 1987 U.S.C.C.A.N. 2313-1, -373. Thus, this provision, along with the other petition requirements, is intended to restrict eligibility to the compensation program, not to act as a statutory tolling mechanism for the statute of limitations.
C
Finally, Dr. Cloer requested in her initial briefs that equitable tolling be made available and applied to the facts of her case, in spite of the binding precedent of Brice. Although the argument was rejected *1336 by the Chief Special Master and the Court of Federal Claims, and not addressed by the panel which initially heard the case, the en banc court decided to reconsider Brice through the lens of specific questions that were put to the parties. Equitable tolling is considered below, in parts VI.B and C.
VI
In an October 25, 2010 order, the court vacated its May 6, 2010 opinion and reinstated the appeal. We requested the parties to file new briefs addressing the following questions:
(a) Should the discovery rule, used for example in medical malpractice cases, see United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) and TRW, Inc. v. Andrews, 534 U.S. 19, 27-28, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001), apply to 42 U.S.C. § 300aa-16(a)(2) so that the statute of limitations does not begin to run until the claimant has knowledge or reason to know of the cause of her injury?
(b) Should Brice v. Secretary of Health & Human Services, 240 F.3d 1367 (Fed.Cir.2001) be overruled to permit equitable tolling of 42 U.S.C. § 300aa-16(a)(2)?
(c) If equitable tolling is permitted, do the circumstances of this case support equitable tolling?
Upon reviewing the briefs of the parties the court heard argument on May 10, 2011. We now address each question put to the parties.
A
Whether to incorporate a discovery rule in the Vaccine Act's statute of limitations requires us to decide when the statute of limitations is triggered. Absent a discovery rule, the plain words of the statute trigger the statute of limitations on the date of the first symptom or manifestation of onset of the injury claimed. If, instead, the statute of limitations does not begin to run until a petitioner knows or has reason to know a vaccine has caused her vaccine-related injury, the plain words of the statute must be adjusted. Whether or not to incorporate a discovery rule boils down to a matter of interpretation of the statute of limitations.[6]
As previously stated, the statute of limitations contained in the Vaccine Act reads:
In the case of
. . .
(2) a vaccine set forth in the Vaccine Injury Table which is administered after October 1, 1988, if a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury[.]
42 U.S.C. § 300aa-16(a). Dr. Cloer makes two arguments for why a discovery rule should be read into the Vaccine Act. First, she argues that the text of the statute of limitations amounts to a discovery accrual rule requiring a claimant to know both the *1337 fact and the cause of her injury. Second, she argues that the language of the Vaccine Act is compatible with an implied discovery accrual rule. See TRW, 534 U.S. at 27, 122 S.Ct. 441 ("[L]ower federal courts generally apply a discovery accrual rule when a statute is silent on the issue.") (quotation marks omitted); see also Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) ("Federal courts, to be sure, generally apply a discovery accrual rule when a statute is silent on the issue.").
For the reasons that follow, we conclude that the Vaccine Act does not itself contain a discovery rule, and, applying the relevant analytic tools provided by the Supreme Court, conclude also that a discovery rule cannot be read by implication into the Vaccine Act's statute of limitations. We first address Dr. Cloer's argument that the Act contains its own discovery rule.
Dr. Cloer specifically highlights the phrase "if a vaccine-related injury occurred as a result of the administration of [the] vaccine" in the statute of limitations. Dr. Cloer argues that the inclusion of this phrase in the statute means that a non-Table injury claim does not accrue until the claimant has knowledge that the injury "occurred as a result of the administration of [the] vaccine." Otherwise, Dr. Cloer posits, the phrase would be superfluous. The government counters that the phrase is essential to breathe meaning into the term "vaccine-related injury" as used in the statute of limitations. The government reads the accrual of a non-Table injury (and thus the beginning of the statute of limitations) to arise on the "date of occurrence of the first symptom or manifestation of onset" of the injury the claimant alleges to be "vaccine-related" for having "occurred as a result of the administration of [the] vaccine."
As an initial matter, Dr. Cloer is correct that "we construe statutes, where possible, so as to avoid rendering superfluous any parts thereof." Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 112, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). However, the clearly dominant language in the statute of limitations is "the date of occurrence of the first symptom or manifestation of onset." As the Supreme Court has noted, the date of the occurrence of the first symptom is forceful "[t]here cannot be two first symptoms or onsets of the same injury" and the first symptom "signal[s] the injury's onset." Shalala v. Whitecotton, 514 U.S. 268, 274, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995). We do not think that dominant phrase can be overcome by inferring a discovery requirement from the phrase "occurred as a result of the administration of [the] vaccine." We therefore reject Dr. Cloer's argument that the statute of limitations already contains a discovery rule that would key the accrual of a non-Table injury claim and the beginning of the statute of limitations to a claimant's discovery that the vaccine caused her injury.[7]
We now turn to whether the Vaccine Act statute of limitations is susceptible to an implied discovery rule. As a preliminary matter, we note that the Supreme Court has left open the question of whether a presumption exists that "all federal statutes *1338 of limitations, regardless of context, incorporate a general discovery rule unless Congress has expressly legislated otherwise." TRW, 534 U.S. at 27, 122 S.Ct. 441. Nonetheless, the Supreme Court noted in TRW, id., that it had held in Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946), that "where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute of limitations does not begin to run until the fraud is discovered." 534 U.S. at 27, 122 S.Ct. 441 (quoting Holmberg, 327 U.S. at 397, 66 S.Ct. 582). The Supreme Court proceeded to note in TRW that "[t]he only other cases in which we have recognized a prevailing discovery rule, morever, were decided in two contexts, latent disease and medical malpractice, `where the cry for [such a] rule is loudest.'" Id. (quoting Rotella, 528 U.S. at 555, 120 S.Ct. 1075) (second alteration in original). As the guide for deciding whether to read a discovery rule into a federal statute of limitations, the Supreme Court held in TRW that Congress can "convey its refusal to adopt a discovery rule ... by implication from the structure or text of the particular statute." Id. at 27-28, 122 S.Ct. 441.
The question we must decide is whether, in the context of a no-fault vaccine-injury remedy statute Congress, in the text of the Vaccine Act and considering its overall structure, conveyed its refusal to permit an implied discovery rule. We have already held that Congress did not write an explicit discovery rule into the statute.
Congress enacted the Vaccine Act statute of limitations against the backdrop of state law providing remedies for physical injuries. Indeed, Dr. Cloer points to that body of state law, noting that virtually all of the state laws on the subject incorporate discovery rules into their statutes of limitations. Those discovery rules look to the knowledge of a plaintiff to determine the date upon which the statute of limitations begins to run. From this body of state law, Dr. Cloer argues that Congress must have meant for the Vaccine Act statute of limitations to incorporate a discovery rule.
The contemporaneous existence of that body of state law, however, cuts against Dr. Cloer. First, that body of state law, dealing with fault liability, keys the accrual of the cause of action to the occurrence of the injury for which relief is sought. See, e.g., Colo.Rev.Stat. §§ 13-80-106, 13-80-108 (enacting discovery rule for cause of action otherwise accruing at injury). As with the Federal Tort Claims Act, 28 U.S.C. § 2401(b), those state laws are understood to trigger their statutes of limitations upon the discovery of the existence and the cause of the injury. See United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). We may presume that Congress is generally aware of the consequences of enacting a statute of limitations that runs from the date of occurrence of an injury. As noted above, Congress was presented the option of enacting a statute of limitations that would have run from the knowledge of the occurrence of a vaccine-related injury. See S. 827, 99th Congress § 2106(a) (1985). Had it done so, the parallel between state law and the Vaccine Act sought by Dr. Cloer would have been plausible. Instead, Congress made the deliberate choice to trigger the Vaccine Act statute of limitations from the date of occurrence of the first symptom or manifestation of the injury for which relief is sought, an event that does not depend on the knowledge of a petitioner as to the cause of an injury. This trigger confirms that a Vaccine Act cause of action accrues on that same date, not at a later date when a petitioner may have knowledge that the vaccine caused the injury. We need not decide whether the choice of Congress to bypass a statute of *1339 limitations comparable to the large body of state law shows a firm intent to bar, without more, a discovery rule in the Vaccine Act statute of limitations. But the choice made by Congress surely goes a long way to showing that Congress "conveyed its refusal to adopt a discovery rule."[8]TRW, 534 U.S. at 27, 122 S.Ct. 441.
Examination of the overall structure of the Vaccine Act and its text buttresses our conclusion that a discovery rule cannot be read into the Vaccine Act statute of limitations. First and foremost, Congress selected a specific textual calendar date to trigger the statute of limitations. Nothing in that date, the first occasion of a symptom or manifestation of onset of the injury for which compensation is sought, asks for information about how much knowledge a petitioner had. It is a statutory date that does not depend on when a petitioner knew or reasonably should have known anything adverse about her condition. We have recognized this in our previous cases. See Markovich, 477 F.3d at 1357 (rejecting the argument that eye blinking episodes were insufficient to start the statute of limitations because "the eye blinking symptom could not reasonably alert the Markoviches that anything was wrong."); Wilkerson v. Sec'y of Health & Human Servs., 593 F.3d 1343, 1345-46 (Fed.Cir. 2010) (rejecting a subjective standard for determining when the limitations period began to run based on the parent's perception and confirming an objective standard based on the medical profession's recognition of the existence of a symptom or manifestation of an injury).
The date of the first symptom or manifestation resonates throughout the Vaccine Act. For example, with regard to Table injury cases, the petitioner is supplied in the Vaccine Injury Table with a list of symptoms or manifestations and a list of dates associated with the time of occurrence of each of those symptoms or manifestations. The Table Injury petitioner uses the same single statute of limitations as a non-Table injury claimant, and has 36 months from the date of the first symptom or manifestation in which to file a petition for compensation.
As noted in Part I above, a significant motive for Congress in enacting the Vaccine Program was to provide an efficient, simple, and easy to administer system for processing vaccine injury claims. We think the triggering mechanism selected by Congress for the statute of limitations promotes those goals, whereas a discovery rule may not. Once it is understood that Congress intended a specific date, rather than a date that would vary depending on the knowledge of a petitioner, to trigger the statute of limitations, it is easily understood that time-consuming debates over *1340 when the statute of limitations started to run would not likely occur in processing a petition for compensation. When the date a symptom first occurred might sometimes be in issue, but the more complicated inquiry about whether petitioner knew or reasonably should have known of a causal connection only arises under Dr. Cloer's view of the statute. Further, "the date of occurrence of the first symptom or manifestation of onset" treats all petitioners equally, whereas under a discovery rule, the otherwise neutral 36 month time limit will vary from petitioner to petitioner.
A discovery rule necessarily adjusts the beginning of a statute of limitations to the circumstances of an individual case. The rule typically asks when a plaintiff knew or reasonably should have known of enough facts to proceed with her case. Kubrick, 444 U.S. at 120-22, 100 S.Ct. 352; see also Kach v. Hose, 589 F.3d 626, 634-35 (3d Cir.2009); Rakes v. United States, 442 F.3d 7, 20 (1st Cir.2006); Fries v. Chicago & Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir.1990); 2 Calvin W. Corman, Limitation of Actions § 11.1.1 (1991). The discovery rule tethers accrual of the cause, and with it the start of the limitations period, to the knowledge of the plaintiff or of a reasonable actor in the plaintiff's position. The discovery rule is therefore an inherently personal, plaintiff-specific one. As a matter of both practice and design, a discovery rule treats different plaintiffs differently based on their personal circumstances. Cascone v. United States, 370 F.3d 95, 104 (1st Cir.2004) ("The issue is whether a reasonable person similarly situated to the plaintiff would have known the necessary facts.").
In our view the personal, plaintiff-oriented approach of a discovery rule is antithetical to the simple, symptom-keyed test expressly required by the Vaccine Act's text. Such a conclusion is not surprising in light of the Vaccine Act's structure as a simplified no-fault administrative scheme. We note further that this conclusion is consistent with Congress's expressed desire that the Vaccine Act be "simple, and easy to administer" as well as "expeditious and fair." See supra part I (discussing legislative history). Under the Vaccine Act as written, two plaintiffs who receive the same vaccine on the same day, and who experience the same medically-recognized symptom of a vaccine-related injury shortly afterwards, also on the same day, begin their limitations periods simultaneously. But under the more capacious analysis of the discovery rule, the start of the limitations period could vary widely based on each plaintiff's personal circumstances. We think these two results so different as to make implication of a discovery rule fundamentally incompatible with the text Congress enacted.
We therefore hold that Congress "conveyed its refusal to adopt a discovery rule... by implication from the text and structure" of the Vaccine Act. TRW, 534 U.S. at 27-28, 122 S.Ct. 441. The statute of limitations begins to run on a specific statutory date: the date of occurrence of the first symptom or manifestation of onset of the vaccine-related injury recognized as such by the medical profession at large.
B
In our second question for en banc briefing, we asked if Brice should be overruled to permit equitable tolling of 42 U.S.C. § 300aa-16(a)(2). We now answer that question in the affirmative. We therefore overrule Brice and hold that equitable tolling applies to the Vaccine Act. In Part C below, we reach and decide the ground on which Dr. Cloer seeks equitable tolling.
The Supreme Court observed in John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133, 128 S.Ct. 750, 169 L.Ed.2d *1341 591 (2008), that "[m]ost statutes of limitations seek primarily to protect defendants against stale or unduly delayed claims." Limitations statutes of that nature do not implicate the jurisdiction of a court, and thus do not preclude relief from time filing limits by way of equitable tolling. The time limits in other statutes, the Supreme Court noted, have been read in the light of the statute's overall purpose as "more absolute, say as requiring a court to decide a timeliness question despite a waiver, or as forbidding a court to consider whether certain equitable considerations warrant extending a limitations period." Id. at 133-34, 128 S.Ct. 750. As examples of such more absolute statutes, the Supreme Court mentioned statutes that "achieve a broader system-related goal, such as facilitating the administration of claims, see, e.g., United States v. Brockamp, 519 U.S. 347, 352-353, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), limiting the scope of a governmental waiver of sovereign immunity, see, e.g., United States v. Dalm, 494 U.S. 596, 609-10, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990), or promoting judicial efficiency, see, e.g., Bowles v. Russell, 551 U.S. 205, 210-13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007)." John R. Sand & Gravel, 552 U.S. at 133, 128 S.Ct. 750. Whether a particular statute of limitations is treated as "jurisdictional" thus depends on the overall context of the statute. The term "jurisdictional" has no notable meaning in such contextual inquiries and is merely convenient shorthand for statutory limits that are absolute and require a court to consider timeliness questions without reference to equitable considerations. Id. at 133-34, 128 S.Ct. 750. The "jurisdictional" determination thus merges into the question of whether Congress intended to allow equitable tolling of the Vaccine Act's statute of limitations.[9]
Any analysis of whether equitable tolling lies against a federal statute of limitations begins with Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). In that case, the Supreme *1342 Court established a presumption that all federal statutes of limitations are amenable to equitable tolling absent provision by Congress to the contrary. Id. at 95-96, 111 S.Ct. 453. Irwin left for decision in later cases whether when enacting specific statutes Congress rebutted the basic presumption in favor of equitable tolling. A leading case providing guidance on Congressional rebuttal is United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997). Brockamp framed the rebuttal question as "whether there is good reason to believe that Congress did not want equitable tolling to apply." 519 U.S. at 350, 117 S.Ct. 849. Brockamp detailed five factors for use in determining whether Congress rebutted the basic Irwin presumption: the statute's detail, its technical language, its multiple iteration of the limitations period, its explicit inclusion of exceptions, and its underlying subject matter. See Brockamp, 519 U.S. at 350-52, 117 S.Ct. 849. These same factors were considered by this court when it previously decided that equitable tolling is not available. Indeed, at that time and again in this case, the government agrees that only two of the factors cut against equitable tolling. First, the government argues that the Vaccine Act includes two specific exceptions to the basic 36 month statute of limitations. And second, the government argues that the Vaccine Act's detail as a whole reveals multiple strict deadlines.
The first exception to which the government refers provides for the situation when a petition for compensation is improperly filed as a tort claim in a state or federal court. Because a person seeking compensation for a vaccine-related injury must first file under the Vaccine Program, 42 U.S.C. § 300aa-11(a)(2), previous court filings elsewhere are improper and must be dismissed. The date such a dismissed action was filed "shall, for purposes of the limitations of actions prescribed by section 300aa-16 of this title [the 36 month period], be considered the date the petition was filed if the petition was filed within one year of the date of the dismissal of the civil action." 42 U.S.C. § 300aa-11(a)(2)(B).[10] This exception was relied on in Brice as a reason to deny equitable tolling.
The second exception to the basic limitations statute raised by the government concerns the provision in the Vaccine Act that deals with petitions for compensation filed after the Vaccine Injury Table is revised. For example, a person who was not eligible for compensation before the Vaccine Injury Table revision may file a petition for compensation under the revision, provided the petitioner's injury occurred no more than 8 years before the date of the revision and the petition is filed not later than 2 years after the effective date of the revision. 42 U.S.C. § 300aa-16(b). This exception was not discussed in Brice.
As for the overall structure of the Vaccine Act, the government points to the many strict time deadlines that regulate cases once they are started. In particular, the government points to the need for special masters to decide cases within 240 days after the filing of a petition, and the bar to suspension of proceedings for more than 150 days. See 42 U.S.C. § 300aa-12(d)(3)(A)(ii),(C).
The correct analysis of the government's "exceptions" points is informed by the Supreme *1343 Court's recent decision in Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), of which the Brice court did not have the benefit. Holland answered in the affirmative whether the one-year statute of limitations on petitions for federal habeas corpus relief by state prisoners under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is subject to equitable tolling. The respondent in Holland argued that the AEDPA should be interpreted to foreclose equitable tolling because the statute has explicit exceptions to the basic statute of limitations. 130 S.Ct. at 2561. The Supreme Court "concede[d] that [the AEDPA] is silent as to equitable tolling while containing one provision that expressly refers to a different kind of tolling." Id. at 2561-62 (citing the "exception" as 28 U.S.C. § 2244(d)(2), which does not count against the one-year statute the time a petitioner has a pending request for postconviction relief, because the federal petition cannot be brought before exhaustion of state remedies). The Supreme Court held that Congress had to balance the interaction of state and federal participation in the underlying subject matter, and the "exception" thus is a special need, and as such negates the significance of the special exception for Brockamp factor analysis purposes. 130 S.Ct. at 2562.
Holland teaches that exceptions to statutes of limitations do not necessarily rebut the bedrock Irwin presumption in favor of equitable tolling. Exceptions, instead, must be understood in context, for, as in Holland, an exception may signal a beneficent Congressional act, not a rebuttal of the Irwin presumption. In the context of the Vaccine Act, the "exception" seen in 42 U.S.C. § 300aa-11(a)(2)(B) does not counsel against equitable tolling.
As noted above, before a tort suit can be brought for damages, a claimant must seek relief under the Vaccine Program. If a would-be petitioner mistakenly first files a traditional tort suit, the tort suit must be dismissed. 42 U.S.C. § 300aa-11(a)(2)(B). Recognizing that the result of a rule requiring dismissal of premature suits could leave a petitioner nonsuited due to different statutes of limitations for state torts and the Vaccine Act, Congress included a special need provision that would allow the petitioner to benefit from the earlier state filing date when faced with the Vaccine Act's statute of limitations. Similarly, Congress included a provision that tolls state statutes of limitations during the pendency of Vaccine Program action. See 42 U.S.C. § 300aa-16(c). Thus, Congress created a system that provides for a petitioner to have equal access to the Vaccine Program and to state remedies once any filing occurs regardless of the forum.
We think it clear that Congress had a specific concern, unrelated to equitable tolling considerations, in enacting the "exception" in 42 U.S.C. § 300aa-11(a)(2)(B). This provision shows Congressional response to possible confusion regarding the new no-fault compensation system by minimizing the consequence of certain errors. This "exception" is driven by a special need, as was the case in Holland, and does not show a desire by Congress to bar equitable tolling.
We turn now to the statutory provision that permits a petition for compensation to be filed upon revisions to the Vaccine Injury Table. We reject the government's argument that this "exception" bars equitable tolling of the statute of limitations. This statutory provision is aimed at scientific advances in medicine that enable the establishment of new Table Injuries, for which causation will be presumed. Individual factual circumstances, the grist of equitable tolling claims, played no role in enactment of this provision. We think equitable tolling concepts lie in a different world from the opening to all vaccine recipients *1344 of a claim due to new medical knowledge. This "exception" too is easily understood as a special need provision to address a Vaccine Program that moves forward in time with advances in medicine. Equitable tolling is not defeated by the wisdom of Congress to see into the future.
The remaining factor urged by the government to support its view that Congress rebutted the Irwin presumption concerns the detailed time limits governing processing of cases under the Vaccine Program. Those factors, identified above, relate to the speed with which the special master must move in processing cases. Such limits are tight, to be sure, and they serve to meet the Congressional goal of swift and efficient disposition of claims once a petition is filed. These time limits are designed to benefit the petitioner. If a petitioner were to cause some delay in processing of her petition because the government resists her request for equitable tolling, she could not be heard to complain if the time to decide her claim is greater than a petitioner who filed her petition within the 36 month limit. And any delay in getting the merits of a petition underway because of equitable tolling is no greater, if as great, as the delay that would be inherent in resolving disputes about whether a petitioner reasonably should have known of a causal link between her injury and a vaccination. Further, the 36 month period comports with traditional tort remedy statutes of limitations, and is not overly generous. See United States v. Beggerly, 524 U.S. 38, 48-49, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998) (denying equitable tolling on an "unusually generous" 12-year statute of limitations.)
In sum, measuring the Vaccine Act by the standards in Irwin, Brockamp, and Holland, we see no reason to bar equitable tolling of the statute of limitations in the Vaccine Act, and therefore must conclude that there is not "good reason to believe that Congress did not want the equitable tolling doctrine to apply." Brockamp, 519 U.S. at 350, 117 S.Ct. 849.
C
In the order setting this case for en banc decision, we asked the parties to address whether, if equitable tolling is permitted, the circumstances of this case support equitable tolling. Dr. Cloer took advantage of our invitation and argued, as she has throughout these proceedings, that equitable tolling is appropriate in this case on the ground that she first became aware of the causal link between her MS and the Hep-B vaccine in 2004 when she saw an article in a journal suggesting such a link. She asserts that it is inequitable and unfair to hold her to the 36 month filing period when she had no reason to know, before 2004, of the causal link between her injury and the Hep-B vaccine. She thus posits that equitable tolling in her case, and presumably in other future cases with similar facts, should be a substitute for the discovery rule.
In other words, Dr. Cloer individually asks for the same relief as a matter of equity that Congress has withheld from all petitioners as a matter of law. But we find no basis in equity for doing so. Dr. Cloer has put no argument before this court that, for example, she has been the victim of a fraud, or of duress. See, e.g., Bailey v. Glover, 88 U.S. 342, 349-50, 21 Wall. 342, 22 L.Ed. 636 (1874). Instead, we understand her to argue that the result reached in the analysis above is ipso facto unfair because it threatens to deprive her of her claim. That is not, in our view, the sort of circumstance that might merit equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (noting that equitable tolling requires a litigant to have diligently pursued his rights, but that "some extraordinary circumstance stood in his way"); *1345 see also Irwin, 498 U.S. at 96, 111 S.Ct. 453 (noting that equitable tolling is to be used "sparingly" in federal cases and has been limited to cases involving deception or the timely filing of a procedurally defective pleading).
While we recognize that our holding sharply limits Dr. Cloer's ability to be compensated under the Vaccine Act, this outcome is the result of a policy calculation made by Congress not to afford a discovery rule to all Vaccine Act petitioners and Dr. Cloer's failure to point to circumstances that could justify the application of equitable tolling to forgive her untimely claim. We thus hold that equitable tolling under the Vaccine Act due to unawareness of a causal link between an injury and administration of a vaccine is unavailable.[11]
Accordingly, the judgment below is
AFFIRMED
DYK, Circuit Judge, dissenting, with whom Circuit Judges NEWMAN, LINN, and REYNA join.
Contrary to the majority, I think it is quite clear that the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, 100 Stat. 3743, 3755, Title III (1986) (codified at 42 U.S.C. § 300aa-1 to 34) [hereinafter the Vaccine Act], incorporates a discovery rule under which the limitations period does not begin to run until the claimant knew or should have known of a connection between the alleged injury and a vaccine.[1]
I
It is well established in both state and federal law that a discovery rule should be presumed for limitations purposes for claims similar to those under the Vaccine Act. The Supreme Court has "recognized a prevailing discovery rule ... in [the] two context[s] of latent disease and medical malpractice, `where the cry for [such a] rule is loudest.'" TRW Inc. v. Andrews, 534 U.S. 19, 27, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (quoting Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000)). Application of a discovery rule is necessary in these circumstances because the very fact that the plaintiff "has been injured ... may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain." United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Where the plaintiff has knowledge of both the injury and its cause, however, "[t]he prospect is not so bleak" because the plaintiff is no longer at the mercy of the defendant, who possesses specialized medical knowledge. Id. Six of our sister circuits have similarly held that, in the case of medical malpractice and similar actions, the limitations period generally does not begin to run until the plaintiff knew or should have known of both the injury and its cause.[2]See also TRW, 534 *1346 U.S. at 27, 122 S.Ct. 441 ("[L]ower federal courts generally apply a discovery accrual rule when a statute is silent on the issue.") (internal quotation marks omitted); Rotella, 528 U.S. at 555, 120 S.Ct. 1075 ("Federal courts, to be sure, generally apply a discovery accrual rule when a statute is silent on the issue....").
While the majority does not dispute that the Vaccine Act remedy is similar to, and replaces, a medical malpractice or similar remedy, it asserts that the application of a discovery rule to petitions under the Vaccine Act is inappropriate because such a rule would be inconsistent with the language and structure of the Act. Relying on the Supreme Court decision in TRW, the majority points out that "Congress can `convey its refusal to adopt a discovery rule ... by implication from the structure or text of the particular statute.'" Maj. Op. at 1338 (quoting TRW, 534 U.S. at 27-28, 122 S.Ct. 441). The text and the structure of the Vaccine Act, however, do not suggest that Congress rejected a discovery rule. To the contrary, both the text and the structure of the Act confirm that Congress adopted the prevailing discovery rule approach.
A
Section 300aa-16(a)(2) of the Vaccine Act provides:
[I]f a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury.
42 U.S.C. § 300aa-16(a)(2). Notably, the statute does not provide that the limitations period commences on the date of the injury. Instead, the limitations period commences on the date of the "first symptom or manifestation" of a "vaccine-related injury," making clear that the statute of limitations is triggered only where the claimant knew or should have known of both the injury and its connection to the vaccine. 42 U.S.C. § 300aa-16(a)(2) (emphases added). As the majority recognizes, the terms "symptom" and "manifestation" suggest knowledge or reason to know on the part of the claimant.[3] Maj. Op. at 1335. That knowledge requirement refers not merely to the existence of a vaccine-related injury, but to knowledge *1347 that the injury was related to the vaccine. In other words, the limitations period is not triggered by knowledge of the injury itself, but by the first event which would put the claimant on notice that a vaccine-related injury has occurred.
Indeed, the limitations provision makes clear that it is not triggered merely by the first symptom of an injury the injury itself must be related to the vaccine (i.e., a "vaccine-related injury") and must occur "as a result of ... a vaccine." 42 U.S.C. § 300aa-16(a)(2) (emphasis added). The statutory definition of "vaccine-related injury" confirms this point, defining "vaccine-related injury" as "an illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Table." Id. § 300aa-33(5) (emphasis added). At the time the Vaccine Act was passed, the word "associated" was defined as "closely connected, joined, or united." Webster's Third New Int'l Dictionary 132 (1986). Thus, in order for an injury to be "associated with" a vaccine, there must be some connection between the injury and the vaccine, and there must be a manifestation or symptom of such an injury, i.e., there must be knowledge or reason to know that the injury is vaccine-related.
The majority asserts that the text of the Vaccine Act is inconsistent with the application of a discovery rule because "the clearly dominant language in the statute of limitations is `the date of occurrence of the first symptom or manifestation of onset.'" Maj. Op. at 1337 (quoting 42 U.S.C. § 300aa-16(a)(2)). Because the majority finds this phrase to be "dominant," it fails to recognize that the phrase "first symptom or manifestation of onset" means nothing standing alone. It can be understood only by looking to the remainder of the language in the limitations provision, which links the "first symptom or manifestation" to "a vaccine-related injury" and requires that such injury occur "as a result" of a vaccine. See 42 U.S.C. § 300aa-16(a)(2).
The majority's novel "dominant language" approach to statutory interpretation is plucked out of thin air and is contrary to Supreme Court precedent, which makes clear that when interpreting a statute, the "[i]nterpretation of a word or phrase depends upon reading the whole statutory text." Dolan v. United States Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006); see also U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (explaining that "we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy"); Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 112, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) ("[W]e construe statutes, where possible, so as to avoid rendering superfluous any parts thereof."); Hornback v. United States, 601 F.3d 1382, 1385 (Fed.Cir.2010) (quoting U.S. Nat'l Bank of Or., 508 U.S. at 455, 113 S.Ct. 2173). The majority's rule that the limitations period begins to run on the "date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner," Maj. Op. at 1325, simply rewrites the statutory language by leaving out the requirement that the injury be "vaccine-related" and occur "as a result" of a vaccine.
In an effort to support its decision to ignore the statutory text, the majority relies on legislative history supposedly demonstrating that Congress deliberately chose to trigger the limitations period from the date of the first symptom or manifestation of the alleged injury, regardless of whether there is an objective reason to suspect a causal connection between the alleged injury and the vaccine. Even under the questionable assumption that *1348 legislative history could support a reading contrary to the text of the statute, there is no such legislative history here. The majority cites two alternative pieces of legislation considered by Congress H.R. 1780 and S. 827. The House of Representatives version required, in language similar to that finally enacted, that claims under the Act be brought within "two years after the first manifestation of a vaccine-related injury," a formulation that also required the "first manifestation" be "vaccine-related." National Childhood Vaccine-Injury Compensation Act of 1985, H.R. 1780, 99th Cong. § 2112(a) (1985). The Senate version required that claims be brought "within 5 years after the occurrence of the compensable complication or residual effect of the illness, disability, injury, or condition listed in the Vaccine Injury Table." National Childhood Vaccine-Injury Compensation Act of 1985, S. 827, 99th Cong. § 2106(a) (1985). In the Senate bill, as in the final version of the Act, causation was presumed for injuries listed in the Vaccine Injury Table. See 42 U.S.C. § 300aa-11(c)(1)(C)(i). The Senate version also permitted the filing of a petition after the time period specified if it was demonstrated that the claimant "did not know that such complication or effect was compensable under the program," or the claimant "was not provided the information required by section 2143." S. 827, § 2106(b). Section 2143(c)(9) required that persons receiving a vaccine listed in the Vaccine Injury Table be provided certain information, including "information on... the availability of the Program."
The majority urges that Congress' rejection of the limitations provision set forth in the Senate bill demonstrates that Congress intended the limitations period to be triggered by the first symptom or manifestation of the alleged injury, regardless of whether there is any reason to suspect a connection between the alleged injury and the vaccine. But Congress' rejection of the exception contained in the Senate bill in no way demonstrates that Congress intended to reject the application of a discovery rule.
First, unlike the Vaccine Act, the Senate bill did not permit a claimant to recover for an injury unless the injury was listed in the Vaccine Injury Table.[4] The only role of causation was to permit claimants to recover for Table injuries even though the time requirements for onset of the injury were not met. See S. 827, § 2105(a)(2).[5] The Senate bill did not, however, in this or any other respect, provide an exception to the limitations period based on the claimant's lack of knowledge or reason to know that there was a causal connection between the alleged injury and the vaccine. Thus, the rejection of the Senate bill hardly suggests a rejection of a discovery rule requiring that the claimant know or have reason to know of a causal connection between the alleged injury and the vaccine.
Second, the exception to the limitations period in the Senate bill was not a discovery *1349 rule. It did not depend on what the claimant knew or should have known, but on what the claimant actually knew. The exception permitted the filing of a petition after the time period specified only if it was demonstrated that (1) at the time of the vaccine, the petitioner was not provided with, among other things, information about the Vaccine Injury Compensation Program; or (2) that the petitioner did not know that the complication or effect of the injury was compensable under the Program. Id. §§ 2106(b), 2143(c)(9). Neither of these exceptions was designed to address a situation in which the claimant had no reason to suspect a causal connection between the alleged injury and the vaccine. Instead, they were designed to deal with circumstances in which the claimant had no knowledge of the availability or scope of the Vaccine Injury Compensation Program. As a result, Congress' rejection of the Senate limitations provision, does not suggest that Congress rejected a discovery rule or intended the language in the limitations provision of the Vaccine Act to be read to mean something different than the plain language conveys.
B
The application of a discovery rule is compelled by both the structure and history of the Vaccine Act, as well as its language. If the limitations provision were interpreted not to incorporate a discovery rule, claimants like Dr. Cloer would be faced with the odd result that the limitations period would begin to run before a petition could be filed under the Act., i.e., before the cause of action accrued. The majority itself recognizes that "settled law establishes a firm default rule that a cause of action arises at the same time the statute of limitations begins to run on the cause." Maj. Op. at 1333 (citing Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005)). Thus, absent an indication to the contrary, the limitations period begins when the cause of action accrues. Graham Cnty., 545 U.S. at 418, 125 S.Ct. 2444; see also Reiter v. Cooper, 507 U.S. 258, 267, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (declining to permit the "odd result" that the accrual of a federal cause of action and the start of the limitations period arise at different times without "any such indication in the statute").
The Vaccine Act divides vaccine-related injuries into two types those which appear in the Vaccine Injury Table ("Table injuries") and those that do not ("non-Table injuries"). See 42 U.S.C. § 300aa-11(c)(1)(C). The same limitations period applies to both Table and non-Table injuries. See id. § 300aa-16(a)(2). For Table injuries, there is no need for the petitioner to establish causation because causation is presumed for injuries listed in the Table. 42 U.S.C. § 300aa-11(c)(1)(C)(i). But where, as here, a claimant seeks compensation for a "vaccine-related injury" not listed in the Table, the petition must contain, among other things, "an affidavit, and supporting documentation, demonstrating that the person who suffered such injury... sustained, or had significantly aggravated, any illness, disability, injury, or condition... which was caused by a vaccine." Id. § 300aa-11(c)(1)(C)(ii) (emphasis added). A claimant's cause of action does not accrue until the time at which the claim becomes enforceable.[6] Claims under the Vaccine Act become enforceable, or accrue, only when a claimant can file a petition demonstrating that the alleged injury was "caused by a vaccine." Id. §§ 300aa-11(a), (c). The legislative history makes clear *1350 that this requirement is not satisfied by a mere allegation that the injury was caused by the vaccine, i.e., the usual pleading standard. Instead, "evidence in the form of scientific studies or expert medical testimony is necessary." H.R.Rep. No. 99-908, at 15, 1986 U.S.C.C.A.N. 6344, 6356 (1986). Thus, in order for the limitations period to commence, the claimant must be able to file a petition. And in order to file a petition, the claimant must demonstrate a causal connection between the vaccine and the injury using "scientific studies or expert medical testimony." See id. As a result, the limitations period cannot begin to run until "scientific studies or expert medical testimony" demonstrating a possible connection between the vaccine and the injury are known or should be known to the claimant.
The majority urges that a discovery rule would make "the otherwise neutral 36 month time limit ... vary from petitioner to petitioner," Maj. Op. at 1340, and thus undermine this court's decision in Markovich that the statute of limitations begins to run at "the first event objectively recognizable as a sign of a vaccine injury by the medical profession at large," 477 F.3d at 1360. Under a discovery rule, however, the statute of limitations is triggered when the claimant knew or should have known that an injury was vaccine related. Though a claimant's subjective knowledge is certainly sufficient to trigger the statute of limitations, Markovich makes clear that subjective knowledge is not required.
The remedial nature of the Vaccine Act also supports a discovery rule. The Supreme Court has long recognized the canon of construction that remedial legislation should be construed liberally. See, e.g., Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987); Peyton v. Rowe, 391 U.S. 54, 65, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 790, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949); Stewart v. Kahn, 78 U.S. 493, 504, 11 Wall. 493, 20 L.Ed. 176 (1870). The Vaccine Act, which created "a new system for compensating individuals who have been injured by vaccines," H.R.Rep. No. 99-908, at 3, 1986 U.S.C.C.A.N. 6344, 6344, clearly falls into the category of remedial legislation. The Vaccine Act's compensation program was intended to be a "program under which awards [could] be made to vaccine-injured persons quickly, easily, and with certainty and generosity." Id. (emphasis added). It was "designed to work faster and with greater ease than the civil tort system." Shalala v. Whitecotton, 514 U.S. 268, 269, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995) (citing H.R.Rep. No. 99-908, at 3-7). Thus, it is clear from the legislative history that Congress intended the Vaccine Act's compensation program to be more generous than the civil tort system.[7]
*1351 At the time the Vaccine Act was enacted, a large number of states recognized a discovery rule under which the limitations period did not begin to run until the plaintiff knew or should have known of both the injury and its cause.[8] Thus, in these states, the statute of limitations on a vaccine-injury claim would not run until the claimant knew or should have known that there was a causal connection between the alleged injury and the vaccine. Under the majority's reading of the limitations provision, however, the Vaccine Act may be far less generous than the remedy afforded by the civil tort system, which generally applies a discovery rule to injuries like the ones at issue here. A claimant who is legitimately injured by a vaccine will nonetheless be barred from filing a petition simply because science has not advanced enough prior to the end of the three-year period following his or her first symptom to furnish a reason to suspect a connection between the injury and the vaccine. This simply cannot be the result intended by Congress when it set out to establish a "program under which awards [could] be made to vaccine-injured persons ... with certainty and generosity." H.R.Rep. No. 99-908, at 3, 1986 U.S.C.C.A.N. 6344, 6344.
In any event, it seems quite unlikely that Congress intended the Vaccine Act's statute of limitations to effectively bar more generous state remedies that utilize a discovery rule, but that is also the effect of the majority's decision. The Vaccine Act was not intended to bar state remedies, but to provide an additional system for vaccine injury compensation which would "lessen the number of lawsuits against manufacturers." H.R.Rep. No. *1352 99-908, at 12, 1986 U.S.C.C.A.N. 6344, 6353 (1986). This was accomplished by "requir[ing] that a person with an injury resulting from a vaccine ... file a compensation petition and go through the compensation program before proceeding with any litigation against the manufacturer." Id. Congress' intent to preserve state law remedies is clearly expressed in § 300aa-16(c) of the Vaccine Act, which provides for a stay of state limitations periods when a petition for compensation is filed under the Vaccine Injury Compensation Program. See 42 U.S.C. § 300aa-16(c). But in states that recognize a discovery rule, that remedy is likely unavailable under the majority's view.
The Vaccine Act plainly requires that a claimant seek a remedy from the Vaccine Injury Compensation Program before attempting to pursue state law claims. See 42 U.S.C. § 300aa-11(a)(2); H.R.Rep. No. 99-908, at 14, 1986 U.S.C.C.A.N. 6344, 6355 (stating that claimants "must complete the compensation proceeding ... before pursuing a civil action"); see also Bruesewitz v. Wyeth LLC, ___ U.S. ___, 131 S.Ct. 1068, 1075, 179 L.Ed.2d 1 (2011). Where the claimant does not do so, the Act requires that the suit be dismissed by the state court. 42 U.S.C. § 300aa-11(a)(2)(B); see also H.R.Rep. No. 99-908, at 14. But the remedies available under the Vaccine Act are barred by the majority's view if more than thirty-six months have passed since the claimant's first symptom or manifestation of the injury. Thus, without the benefit of a discovery rule under the Vaccine Act, the claimant will be barred from filing a federal petition even though the state statute of limitations incorporating a discovery rule will not have run. The apparent result is that the state remedy will be barred for failure to file a petition under the Vaccine Act. It is incredible to think that the Vaccine Act was intended to foreclose the very state law remedies that it was designed to preserve and augment.[9]
In the end, there is nothing in the structure or history of the Vaccine Act that renders a discovery rule inappropriate. In fact, the structure and history of the Act not only confirm, but compel the conclusion that a discovery rule is appropriate.[10] Failure to adopt a discovery rule will create *1353 a situation in which a claimant will be unfairly barred from filing a petition even if he or she never knows or has reason to know that a claim exists. Contrary to the majority's assertion, a discovery rule does not result in disparate treatment of similarly situated claimants, but ensures equitable treatment of all claimants.
II
The injustice of the majority's approach is amply demonstrated by the circumstances in this case. In Dr. Cloer's case, there is no dispute that the first symptom or manifestation of injury occurred in May 1997 when she experienced a Lhermitte sign, which is recognized by the medical profession as a common symptom of MS. The government has submitted no evidence, however, that Dr. Cloer had reason to suspect a connection between multiple sclerosis ("MS") and the Hepatitis B vaccine before 2004. Under the majority's reading of the Act, the limitations period on Dr. Cloer's claim began running on the date of her first symptom of MS, which occurred more than four years before her cause of action accrued. There is simply no indication that Congress intended that the limitations period begin before she had the information necessary to file a petition.
NOTES
[*] Judge Gajarsa assumed senior status on July 31, 2011.
[1] The Supreme Court has held that the Vaccine Act preempts state law vaccine design defect claims. See Bruesewitz v. Wyeth LLC, ___ U.S. ___, 131 S.Ct. 1068, 1075, 179 L.Ed.2d 1 (2011).
[2] MS is "a disease in which there are foci of demyelination of various sizes throughout the white matter of the central nervous system, sometimes extending into the gray matter. Typically, the symptoms of lesions of the white matter are weakness, incoordination, paresthesias, speech disturbances, and visual complaints. The course of the disease is usually prolonged, so that the term multiple also refers to remissions and relapses that occur over a period of many years." Borrero v. Sec'y of the Dep't of Health & Human Servs., No. 01-417V, 2008 WL 4527837, at *1 n. 4 (Fed.Cl.Sp.Mstr. Sept. 24, 2008) (quoting Dorland's Illustrated Medical Dictionary (30th ed.2003) at 1669).
[3] We note that a petitioner's pleading burden is, of course, lower than the preponderance burden that must be met in order to receive compensation. See 42 U.S.C. § 300aa-13(a)(1) ("Compensation shall be awarded to a petitioner if the special master or court finds ... (A) that the petitioner has demonstrated by a preponderance of the evidence the matters required in the petition."). To meet the preponderance standard, a petitioner must show that the vaccination brought about her injury by providing: "(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury." Althen, 418 F.3d at 1278. A petitioner only needs to "provide a reputable medical or scientific explanation that pertains specifically to the petitioner's case" and "the explanation need only be legally probable, not medically or scientifically certain." Moberly ex rel. Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315, 1322 (Fed.Cir.2010) (quotation marks omitted).
Congress clearly contemplated that petitioners might not be able to meet the burden to demonstrate causation-in-fact by preponderance at the time the petition is filed. This is easily seen in the statute as a Vaccine Act petitioner, even if ultimately unsuccessful, can still receive compensation to cover reasonable attorneys' fees and other costs incurred in the proceeding "if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim." 42 U.S.C. § 300aa-15(e)(1).
[4] The first time an injury is causally linked with a vaccine often occurs as a result of a successful non-Table petition. Over time, as injuries occur throughout the population and are linked to a vaccine, the medical community begins to recognize a link between the vaccine and the injury. This can occur through studies published in medical journals or as a result of government research. Often, however, before the link is sufficiently established to become generally recognized by the medical community, petitioners are able to muster enough evidence to receive compensation from the Vaccine Program. See, e.g., Andreu ex rel. Andreu v. Sec'y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed.Cir. 2009) ("[R]equiring `objective confirmation' in the medical literature prevents `the use of circumstantial evidence ... and negates the system created by Congress' through the Vaccine Act.") (quoting Althen, supra note 4, 418 F.3d at 1279-80) (omission in original); Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317, 1325 (Fed.Cir.2006) ("[R]equiring either epidemiologic studies, rechallenge, the presence of pathological markers or genetic disposition, or general acceptance in the scientific or medical communities to establish a logical sequence of cause and effect is contrary to [precedent].") (emphasis added). Finally, because a successful "causation in fact" petition can be the first established link between a vaccine and a non-Table injury, it must be allowed to be filed before an objective recognition is understood by the medical community at large.
As noted above, Althen sets forth the three pleading requirements for a non-Table injury petition. These requirements have not been insurmountable for petitioners seeking compensation for MS caused by the Hep-B vaccine. At least 35 petitions alleging MS caused by the Hep-B vaccine have resulted in public opinions to date, and at least 14 of those petitioners have been successful. Many of the successful petitioners filed their petitions in 1999. See, e.g., Fisher v. Sec'y of the Dep't of Health & Human Servs., No. 99-432V, 2009 WL 2365459 (Fed.Cl.Sp.Mstr. Jul. 13, 2009) (petition filed Jul. 2, 1999); Adler v. Sec'y of the Dep't of Health & Human Servs., No. 99-608V, 2008 WL 5068931 (Fed.Cl.Sp.Mstr. Nov. 18, 2008) (petition filed Aug. 4, 1999); Doe/23 v. Sec'y of the Dep't of Health & Human Servs., 2008 WL 4865974 (Fed.Cl.Sp. Mstr. Oct. 16, 2008) (petition filed May 17, 1999); Barillaro v. Sec'y of the Dep't of Health & Human Servs., No. 99-408V, 2008 WL 2465794 (Fed.Cl.Sp.Mstr. May 28, 2008) (petition filed June 28, 1999); Doe/13 v. Sec'y of the Dep't of Health & Human Servs., 2008 WL 926930 (Fed.Cl.Sp.Mstr. Mar. 31, 2008) (petition filed May 14, 1999); Doe/07 v. Sec'y of the Dep't of Health & Human Servs., 2007 WL 3306493 (Fed.Cl.Sp.Mstr. Nov. 2, 2007) (petition filed Jul. 16, 1999); Augustynski v. Sec'y of the Dep't of Health & Human Servs., No. 99-611V, 2007 WL 3033614 (Fed.Cl.Sp.Mstr. Sep. 28, 2007) (petition filed Aug. 4, 1999); Phippen v. Sec'y of the Dep't of Health & Human Servs., No. 99-435V, 2006 WL 5631725 (Fed.Cl.Sp.Mstr. Dec. 5, 2006) (petition filed Jul. 2, 1999); Werderitsh v. Sec'y of the Dep't of Health & Human Servs., No. 99-310V, 2006 WL 1672884 (Fed.Cl.Sp.Mstr. May 26, 2006) (petition filed May 18, 1999).
[5] The foregoing discussion responds to arguments made by Dr. Cloer in her initial briefs and at oral argument before the panel concerning the meaning of "vaccine-related injury." In the en banc proceedings, she preserved the consensus argument from her initial briefs, but retreated somewhat from her initial stance, arguing that the statute of limitations runs and her cause of action arises instead upon "recognition" by the medical community of a causal link between an injury and a vaccine. Her "recognition" trigger requires less proof than consensus in the medical community. Her rephrasing thus keys accrual of her claim not to medical agreement as to cause, but to whether there is reason to know that a vaccine may have caused her injury. As rephrased, her argument depends upon a discovery rule being found in the Vaccine Act statute of limitations. We address that question in part VI.A below.
[6] As a matter of caution, we must recognize and respect that a "statute of limitations is a condition on the waiver of sovereign immunity by the United States" and courts should be "careful not to interpret [a waiver] in a manner that would extend the waiver beyond what Congress intended." Stone Container Corp. v. United States, 229 F.3d 1345, 1352 (Fed.Cir.2000) (quoting Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (internal quotation omitted)). We have consistently followed this admonition when interpreting the Vaccine Act's statute of limitations. See, e.g., Markovich, 477 F.3d at 1360; Brice, 240 F.3d at 1370.
[7] We note that Congress knows how to legislate an explicit discovery rule. For example, when providing a cause of action to quiet title of property in which the United States claims an interest, Congress mandated that "[a]ny civil action under this section ... shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States." 28 U.S.C. § 2409(g); see also TRW, 534 U.S. at 38, 122 S.Ct. 441 (Scalia, J., concurring) (discussing three additional examples of explicit discovery rules enacted by Congress).
[8] The legislative history which we emphasize is not a matter of difference of opinion among legislators about what statutory language means, or individual statements by legislators. See generally Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (cautioning against reliance on legislators' "passing comments" and "casual statements" as indicating Congressional intent). Instead, it is a matter of pure fact that Congress had two clear and significantly differing concepts to choose from in writing the statute of limitations for the Vaccine Act. Compare H.R. 1780, 99th Congress § 2112 (1985) with S. 827, 99th Congress § 2106(a) (1985). Less significant but not unimportant is the additional fact that Congress was warned by Dissatisfied Parents Together, an interest group favoring the approach of S. 827, that the approach ultimately selected by Congress would trigger the statute of limitations regardless of when the claimant discovered the causal link between the injury and the vaccine. See To amend the Public Health Service Act to provide for the compensation of children and others who have sustained vaccine-related injuries, and for other purposes: Hearing on S. 827 before the S. Comm. on Labor and Human Res., 99th Cong. 41 (1985) (statement of Jeffrey H. Schwartz, President of DPT).
[9] In Martin ex rel. Martin v. Secretary of Health & Human Services, 62 F.3d 1403 (Fed. Cir.1995), the parents of a child injured by polio vaccine sought attorneys' fees and costs under the Vaccine Act. 42 U.S.C. § 300aa-11(a)(6) bars a petition for compensation if the petitioner has previously filed a civil suit for damages for the same injury. Because the Martins had filed such a suit, their petition was dismissed for lack of subject matter jurisdiction. We thus viewed the barrier to suit in § 300aa-11(a)(6) as jurisdictional, and consequently held that the absence of jurisdiction over the Martins' petition for compensation removed jurisdiction over their application for attorneys' fees and costs. 62 F.3d at 1407. After we held in Brice that equitable tolling does not lie under the Vaccine Act, the Brices sought attorneys' fees and costs. The Court of Federal Claims, in the light of Martin, treated the Brices' failure to meet the statute of limitations as jurisdictional, and thus dismissed the Brices' attorneys' fee and costs request for lack of jurisdiction. On appeal, we too assumed, without analysis, that compliance with the Vaccine Act's statute of limitations is a jurisdictional requirement, and affirmed the Court of Federal Claims decision. Brice v. Sec'y of Health & Human Servs., 358 F.3d 865, 869-70 (Fed.Cir.2004) ("second Brice").
Dr. Cloer brought Martin and the second Brice decision to our attention, pointing out that the second Brice decision merely assumed that the statute of limitations is jurisdictional, and asking that we clarify the issue. Notably, the government does not rely on the second Brice decision; indeed, it does not assert that the statute is "jurisdictional" and thus inhospitable to equitable tolling.
The only purpose of the statute of limitations in the Vaccine Act is to protect the government from stale or unduly delayed claims. Whether viewed from the overall purpose perspective or, as demonstrated below, from the perspective of whether Congress barred equitable tolling by erecting a jurisdictional barrier, the answer is the same. There is no barrier to equitable tolling under 42 U.S.C. § 300aa-16(a)(2), and the statute of limitations is not jurisdictional. Previous law to the contrary is overruled.
[10] The relief afforded to petitioners by 42 U.S.C. § 300aa-11(a)(2)(B) was not available to the petitioner in Martin. See supra n. 9. That case dealt with 42 U.S.C. § 300aa-11(a)(6), which completely barred access to the Vaccine Program if a petition was filed after November 15, 1988, for a vaccine-related injury or death associated with administration of a vaccine before November 15, 1988. In Martin, the vaccine was administered in 1986 and the state court suit was brought on November 15, 1989. Martin, 62 F.3d at 1404.
[11] In Irwin, the Supreme Court found for the first time that equitable tolling is presumptively available in all actions against the government, including the one asserted by Mr. Irwin. 498 U.S. at 95-96, 111 S.Ct. 453. Because the Court concluded that Mr. Irwin could not satisfy the stringent requirements of that doctrine, however, the Court affirmed the judgment the judgment against Mr. Irwin. Id. We follow a similar course here.
[1] This does not mean, of course, that a definitive diagnosis of the alleged injury is required to trigger the statute of limitations, as this court made clear in Markovich v. Sec'y of Health & Human Servs., 477 F.3d 1353, 1360 (Fed.Cir.2007).
[2] See, e.g., Sell v. U.S. Dep't of Justice, 585 F.3d 407, 409 (8th Cir.2009) ("In medical malpractice cases ... the cause of action accrues when the plaintiff discovers the nature and cause of his injury."); Hensley v. United States, 531 F.3d 1052, 1056 (9th Cir.2008) (noting that, "[i]n certain circumstances, such as claims involving medical malpractice, accrual does not occur until a plaintiff knows of both the existence of an injury and its cause"); Green v. United States, 180 Fed. Appx. 310, 313 (3d Cir.2006) ("[W]hen the fact of injury alone is insufficient to put an injured party on notice of its cause, the Supreme Court has indicated that the accrual of the claim is delayed until the injured party discovers that cause."); Waggoner v. United States, 95 Fed.Appx. 69, 71 (5th Cir.2004) ("[A] claim under the FTCA accrues when a plaintiff knows or reasonably should have known of `the existence and the cause of his injury.'"); Mix v. Delaware & Hudson Ry. Co., 345 F.3d 82, 86 (2d Cir.2003) ("[A]n FELA action accrues when the plaintiff in the exercise of reasonable diligence knows both the existence and the cause of his injury.") (internal quotation marks omitted); Price v. United States, 775 F.2d 1491, 1493-94 (11th Cir.1985) ("[A] medical malpractice claim under the FTCA accrues when the plaintiff is, or in the exercise of reasonable diligence should be, aware of both [his] injury and its connection with some act of the defendant."); see also Kubrick, 444 U.S. at 120-21, 100 S.Ct. 352 (noting government concession that in medical malpractice cases plaintiff must know of both injury and its cause).
[3] See Webster's Third New Int'l Dictionary 1375, 2318 (1986) (defining "manifestation" as "something that manifests or constitutes an expression of something else: a perceptible outward, or visible expression," and "symptom" as "something that indicates the existence of something else").
[4] Section 2103 permitted the award of compensation only where "there is an adequate demonstration that ... the [claimant] sustained, or had significantly aggravated, any of the illnesses, disabilities, injuries, or conditions listed in the Vaccine Injury Table." S. 827, § 2103(a)(2)(A). Additionally, the bill defined the term "vaccine-related injury" only in terms of injuries appearing in the Vaccine Injury Table, stating specifically that "the term `vaccine-related injury' means any injury... listed in the Vaccine Injury Table." Id. § 2164(20).
[5] The Senate bill set forth a Vaccine Injury Table containing specific vaccines, injuries, and time periods for the first symptom or manifestation of onset of a listed injury. Id. § 2105(a)(1). Where the claimant's first symptom did not occur within the specified time period, the claimant could nonetheless recover upon demonstrating that the injury was caused by the vaccine.
[6] To "accrue" in the sense of a cause of action means "[t]o come into existence as an enforceable claim or right." Black's Law Dictionary 23 (9th ed.2009).
[7] Developments in the past few years have demonstrated the importance of the right to sue for non-Table injuries. The Secretary has revised the Vaccine Injury Table to add only four vaccine-related injuries since the Vaccine Act was enacted in 1986. See National Vaccine Injury Compensation Program Revision of the Vaccine Injury Table, 60 Fed.Reg. 7678, 7694 (Feb. 8, 1995) (adding "Chronic arthritis" as an injury associated with the MMR vaccine); National Vaccine Injury Compensation Program: Revisions and Additions to the Vaccine Injury Table II, 62 Fed. Reg. 7685, 7688 (Feb. 20, 1997) (adding "Brachial neuritis" as an injury associated with the DTP vaccine, "Thrombocytopenic purpura" and "vaccine-strain measles virus infection" as injuries associated with the MMR vaccine, and "vaccine-strain poliovirus infection" as an injury associated with the live poliovirus vaccine); National Vaccine Injury Compensation Program: Revisions and Additions to the Vaccine Injury Table, 67 Fed.Reg. 48558, 48559-60 (Jul. 25, 2002) (adding "intussusception" as an injury associated with the live, oral, rhesus-based rotavirus vaccine). In each case, the Secretary noted that the addition of a particular injury is appropriate only where it "can reasonably be determined... to be caused ... by certain vaccines." 62 Fed.Reg. at 7685; see also 67 Fed.Reg. at 48558 (stating that the proposed revisions were "based upon the Secretary's determination that the [injury] can reasonably be determined in some circumstances to be caused by [a specific vaccine]"); 60 Fed.Reg. at 7681 (declining to add certain injuries allegedly related to the DTP vaccine because the Secretary "could not `reasonably determine' that a causal connection exists"). Additionally, the Secretary has stated that the addition of an injury to the Vaccine Injury Table is inappropriate "[w]here [the] scientific research concerning the relationship between a disorder and a vaccine is incomplete or nonexistent." 62 Fed.Reg. at 7686.
[8] See, e.g., Anson v. Am. Motors Corp., 155 Ariz. 420, 747 P.2d 581, 584 (App.1987) (holding that "a cause of action does not `accrue' until a plaintiff discovers or by the exercise of reasonable diligence should have discovered that he or she has been injured by the defendant's negligent conduct"); Yamaguchi v. Queen's Med. Ctr., 65 Haw. 84, 648 P.2d 689, 693 (1982) (same); Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind.1985) (same); Louisville Trust Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky.1979) (same); Penn v. Inferno Mfg. Corp., 199 So.2d 210, 219 (La.Ct.App.1967) (same); Baysinger v. Schmid Prods. Co., 307 Md. 361, 514 A.2d 1, 3-4 (1986) (same); Olsen v. Bell Tel. Labs., Inc., 388 Mass. 171, 445 N.E.2d 609, 611-12 (1983) (same); Cullender v. BASF Wyandotte Corp., 146 Mich.App. 423, 381 N.W.2d 737, 739 (1985) (same); Ahearn v. Lafayette Pharmacal, Inc., 729 S.W.2d 501, 503-504 (Mo.Ct. App.1987) (same); Thompson v. Neb. Mobile Homes Corp., 198 Mont. 461, 647 P.2d 334, 338 (1982) (noting that statute of limitations begins to run on products liability claims when the plaintiff knew or should have known of both the injury and the defect); Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 527 A.2d 66, 71-72 (1987) (holding that the statute of limitations begins to run when the plaintiff knew or should have known of both the injury and its cause); O'Stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 447 N.E.2d 727, 732 (1983) (same); Daugherty v. Farmers Coop. Ass'n, 689 P.2d 947, 950-51 (Okla. 1984) (same); Burnside v. Abbott Labs., 351 Pa.Super. 264, 505 A.2d 973, 987-88 (1985) (same); Woods v. Sherwin-Williams Co., 666 S.W.2d 77, 78-79 (Tenn.Ct.App.1983) (same); Olson v. A.H. Robins Co., 696 P.2d 1294, 1298-99 (Wyo. 1985) (same).
[9] The majority makes the strange argument that the failure of the Vaccine Act to tie the limitations period to "occurrence of the injury," as do state discovery statutes, somehow manifests a rejection of the discovery rule. Maj. Op. at 1338. The fact that Congress chose to be more explicit about the discovery rule than state statutes hardly reflects a different policy choice.
[10] The majority's sole structural argument is based on the fact that a discovery rule would provide claimants like Dr. Cloer with a more generous limitations period than that provided for claimants seeking compensation when a new injury is added to the Vaccine Injury Table. The majority asserts that it would be incongruous for claimants asserting non-Table injuries to "enjoy a more generous statute of limitations than ... Table Injury petitioners, for whom causation is presumed." Maj. Op. at 1334. But the different treatment of the statute of limitations for Table and non-Table injuries makes eminent sense. Claimants asserting Table injuries have constructive notice of the vaccine-related nature of their injuries. Claimants asserting non-Table injuries, however, have no such notice. Based on the standards espoused by the Secretary, an injury may be added to the Vaccine Injury Table only where there is sufficient evidence to support a determination that the injury is caused by a certain vaccine. See supra note 7. If evidence of a causal connection has not advanced to that point, claimants will not have the benefit of constructive notice or any presumption of causation. In those circumstances, it is not at all incongruous that the statute of limitations should not begin to run until the claimant knew or should have known that the injury is vaccine-related.
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Order entered October~..~_~ , 2012
In The
No. 05-12-00659-CR
ANASTASIA MIKAL SOLANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No. 2010-1-0242
ORDER
The Court ORDERS the trial court to conduct a hearing to determine why appellant’s
brief has not been filed. In this regard, the trial court shall make appropriate findings and
recommendations and determine whether appellant desires to prosecute the appeal, whether
appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeal. See
TEX. R. At, r,. P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the
trial court shall conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708
(Tex. App.-Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is
ORDERED to take such measures as may be necessary to assure effective representation, which
may include appointment of new counsel.
We ORDER the trial court to transmit a record of the proceedings, which shall include
written findings and recommendations, to this Court within THIRTY DAYS of the date of this
order.
This appeal is ABATED to allow the trial court to comply with the above order. The
appeal shall be reinstated thirty days from the date of this order or when the findings are
received, whichever is earlier.
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925 F.Supp. 602 (1996)
Dorothy KOZMA and Joseph Kozma, Plaintiffs,
v.
MEDTRONIC, INC., Defendant.
No. 2:95-CV-9-TS.
United States District Court, N.D. Indiana, Hammond Division.
April 30, 1996.
*603 Gerald M. Bishop, Merrillville, IN, for Plaintiffs.
Timothy Woods, South Bend, IN and Thomas Parker, Akron, OH, for Defendant.
MEMORANDUM AND ORDER
SPRINGMANN, United States Magistrate Judge.
The Plaintiffs, Dorothy and Joseph Kozma, brought this action against the Defendant after Mrs. Kozma underwent surgery to replace her pacemaker. The Defendant, Medtronic, Inc., designed and manufactured the pacemaker and leads at issue in this case. In their Complaint, the Plaintiffs assert claims for negligent manufacture, strict liability/failure to warn, and breach of implied and express warranties against the Defendant. Medtronic counters and asserts that all of the Plaintiffs' claims are preempted by the Medical Device Amendments of 1976 (MDA) to the Federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. §§ 321-394. In addition to these claims, the Plaintiffs assert that Medtronic converted the defective pacemaker after doctors surgically removed it from the Plaintiff's body.
The Court holds that the Plaintiffs' claim for negligent or defective manufacture is not preempted insofar as the Plaintiffs are asserting that the pacemaker failed to meet federal safety and performance regulations. The Plaintiffs, however, have not identified the factual basis for its claim of adulteration or defective manufacture. Nonetheless, the Court DENIES the Defendant's Motion for Summary Judgment because the evidence crucial to making out a claim for adulteration or defective manufacture has not, to this point, been subject to discovery by the Plaintiffs. The Court also holds that the Plaintiffs' claims for breach of express warranties are not preempted. Finally, the Plaintiffs have presented facts sufficient to survive summary judgment with respect to their conversion claim.
I. ISSUES
This case presents four issues for the Court to decide. The first issue asks whether the Medical Device Amendments to the FDCA preempt the Plaintiffs' claims for adulteration, negligent manufacture, failure to warn and breach of implied and express warranties. The Defendant asserts that all of these claims are preempted by the MDA. Because the Food and Drug Administration (FDA) gave premarket approval to the allegedly defective pacemaker, the Defendant argues that the pacemaker should not be subject to different standards imposed by the Plaintiffs' claims. The Plaintiffs, recognizing the substantial authority upon which the Defendant's argument rests, have clarified their legal theory and argue that the particular pacemaker involved in this case was a "lemon." The Plaintiffs do not argue that the Defendant should have met design and warning standards different than those imposed by the FDA. Instead, the Plaintiffs argue that the Defendant failed to meet the federal standards when it manufactured this particular pacemaker. In other words, the Plaintiffs argue that the pacemaker involved in this case was an adulteration of the FDA-approved model.
*604 Finding that the Plaintiffs have solid legal footing on their claims insofar as they allege adulteration, the Court turns to the second issue: Whether the Plaintiffs have presented evidence of adulteration sufficient to withstand summary judgment against them. The Defendant has put forth extensive evidence of their compliance with FDA regulations in the design and manufacture of the model of pacemaker involved in this case. The Plaintiff has not been able to identify the particular defect in the pacemaker nor any evidence of failing to meet FDA regulations in the manufacture of the pacemaker. Instead, they point out that the Defendant has control over the Plaintiff's pacemaker and has never turned it over for testing and inspection. Although the Plaintiffs cannot present facts sufficient to show a triable issue, the Plaintiffs argue that summary judgment should not be granted before adequate discovery is conducted.
The third issue asks whether the Plaintiffs' claim for breach of express warranties survives preemption by the MDA. The fourth decides whether or not the Defendant is entitled to summary judgment on the Plaintiffs' claim for conversion.
II. FACTS
On April 10, 1989, Dorothy Kozma underwent heart surgery for the purpose of implanting a pacemaker manufactured by Medtronic, Inc. In 1993, Mrs. Kozma again faced heart problems caused by the alleged failure of her pacemaker or its leads. On November 30, 1993, Mrs. Kozma underwent a second heart surgery for the purpose of removing the original pacemaker and implanting a replacement.
After the surgery, Medtronic took possession of Mrs. Kozma's original pacemaker. The Plaintiffs demanded that Medtronic return the pacemaker. To this date, the Defendant has not done so. On December 16, 1994, the Plaintiffs filed the present suit in Indiana state court. In a letter dated December 21, 1994, the Defendant offered to return the pacemaker to the Plaintiffs on condition that the Plaintiffs agree not to do destructive testing of the pacemaker and agree to share the results with the Defendant. The Defendant received service of the pending case on December 22, 1994. For whatever reason, the parties have not yet reached agreement on the circumstances under which the pacemaker will be turned over for inspection by the Plaintiffs.
The pacemaker at issue in this case included two components: a pulse generator and a lead. The particular pacemaker removed from the Plaintiff's body was "Medtronic's CapSure® Model No. 4004, bipolar, endocardial, tined, transvenous pacing lead . . ., and Medtronic's Activitrax® II Model No. 8412 single chamber, multi-mode, programmable, lithium-powered, hermetically sealed, implantable pulse generator."[1] (Def.'s Mem. Supp. Mot. Summ. J. at 2.) The pacemaker was subject to regulation by the FDA because it is a medical device intended for human use. 21 U.S.C. § 360c(a)(1).
Pursuant to the MDA, the Food and Drug Administration classifies each medical device intended for human use into one of three classes based on the degree of regulation necessary to assure safety and effectiveness. 21 U.S.C. § 360c. Class I devices generally pose little or no threat to public safety and health. Therefore, they are subject to only general controls on manufacturing processes. Class II devices are more complex than Class I devices and are subject to special controls at the discretion of the FDA. Those special controls include performance standards, post-marketing surveillance, patient registries, recommendations and guidelines. See 21 U.S.C. § 360c(a)(1)(B).
The FDA classified the pacemaker and leads at issue in this case as a Class III medical device. Class III devices are used in "supporting or sustaining human life." 21 U.S.C. § 360c(a)(1)(C)(ii)(1). The FDA must approve Class III devices before the manufacturer can sell the devices to the public, a process known as "premarket approval." 21 U.S.C. § 360c(a)(1)(C). The FDA uses the premarket approval process to determine "the safety and effectiveness" of a device *605 under the conditions "prescribed, recommended, or suggested" in its labeling. 21 U.S.C. § 360c(a)(2). The application for premarket approval must include samples of the device identifying its components, a description of the manufacturing process, data on safety and effectiveness, copies of all proposed labeling, and any other information the FDA requests. 21 U.S.C. § 360e(c); see also 21 C.F.R. § 814.20. The application is referred to a panel of qualified experts who study the device and recommend its approval or disapproval. 21 U.S.C. § 360e(c)(2). Finally, the FDA retains the right to withdraw its approval if it finds that a device previously approved is not safe and effective. 21 U.S.C. § 360e(e).
The FDA gave premarket approval to both the pulse generator and leads at issue in this case. The FDA approved the premarket approval application for the pulse generator on July 15, 1988. (Def.'s Mot. Summ. J., Ex. G.) In addition, the FDA approved the premarket approval application for the leads on February 10, 1989. (Def.'s Mot.Summ. J., Ex. C.)
III. DISCUSSION
A. Preemption Generally
Federal preemption of state law arises from Article VI of the Constitution, which provides that the laws of the United States "shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2. Under this authority, any state law that conflicts with federal law is "without effect." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422 (1992). "Whether federal law preempts a state law establishing a cause of action is a question of congressional intent." Hawaiian Airlines, Inc. v. Norris, ___ U.S. ___, ___, 114 S.Ct. 2239, 2243, 129 L.Ed.2d 203, 211 (1994). A court must look to "the text and structure of the statute at issue" in order to discern Congress's intent with respect to preemption. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387, 396 (1993); Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617, 120 L.Ed.2d at 422-23. "If the statute contains an express preemption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent." Easterwood, 507 U.S. at 664, 113 S.Ct. at 1737, 123 L.Ed.2d at 396. To determine congressional intent with respect to the MDA's preemption of state common law causes of action, the Court will now turn to the MDA's express preemption clause.
B. The MDA's Preemption Clause
In this case, the Defendant relies on the express preemption clause contained in the Medical Device Amendments, which states:
Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device and,
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.
21 U.S.C. § 360k(a) (emphasis supplied).
In Mitchell v. Collagen Corp., 67 F.3d 1268 (7th Cir.1995), the court interpreted the preemption clause of the MDA. Specifically, the court considered whether the "any requirement" language found in the statute preempted the Mitchells' state common law claims. The court grounded its analysis on the Supreme Court's decision in Cipollone, which interpreted the "any requirement" language in the preemption clause of the Public Health Cigarette Smoking Act of 1969. In Cipollone, the Supreme Court held that Congress's use of the words, "any requirement," revealed its intent to preempt state common law claims as well as regulatory or statutory enactments of state legislative bodies. Cipollone, 505 U.S. at 522-23, 112 S.Ct. at 2620, 120 L.Ed.2d at 426-27. The Seventh Circuit analogized the Supreme Court's reasoning in Cipollone to support its conclusion with respect to the similar language found in the MDA. The court held that the phrase "any *606 requirement" in 21 U.S.C. § 360k(a) encompassed "at least some" state law causes of action within the statute's preemptive scope. Id. at 1276.
Applying these principles to the Mitchells' claims, the court concluded that the MDA preempted several of the state common law causes of action. Specifically, the court held that the products liability claims based on strict liability and negligent design were preempted, as well as the claims for fraud, misrepresentation, and the claims based on implied warranties. Id. at 1280-84.
C. Products Liability, Failure to Warn and Breach of Implied Warranties
The court held that the MDA preempted the products liability and failure to warn claims because those claims would add requirements "different from, or in addition to," those imposed under the MDA and the premarket approval process. Id. at 1280-81. Likewise, the court held that the MDA preempted the plaintiffs' claims for breach of implied warranties. Id. at 1284. In so holding, the court aligned itself with the holdings of several cases from other circuits. See Michael v. Shiley, Inc., 46 F.3d 1316, 1324-25 (3d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 67, 133 L.Ed.2d 29 (1995); Martello v. Ciba Vision Corp., 42 F.3d 1167, 1168-69 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995); Stamps v. Collagen Corp., 984 F.2d 1416, 1422 & n. 5 (5th Cir.) (failure to warn, defective design and defective manufacturing claims), cert. denied, 510 U.S. 824, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993); King v. Collagen Corp., 983 F.2d 1130, 1135-36 (1st Cir.) (op. of Torruella, J., joined by Aldrich and Campbell, JJ.), cert. denied, 510 U.S. 824, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993); Mendes v. Medtronic, Inc., 18 F.3d 13, 18-19 (1st Cir.1994); Lohr v. Medtronic, Inc., 56 F.3d 1335, 1347-52 (11th Cir.1995) (holding, with respect to Class III device that had not undergone premarket approval process, that negligent design and strict liability claims were not preempted, but that MDA's manufacturing regulations, and labeling requirements preempted negligent manufacture and failure to warn claims), cert. granted ___ U.S. ___, 116 S.Ct. 806, 133 L.Ed.2d 752 (1996).
In light of these precedents, the Court holds that the Plaintiffs' claims for defective design, failure to warn and breach of implied warranties are preempted by the MDA. Each of these claims would impose requirements "different from, or in addition to," the FDA's requirements. Therefore, under the MDA's preemption clause, those claims are preempted.
D. Adulteration
Ultimately, however, the court in Mitchell held that the MDA did not preempt all of the Mitchells' claims. The court considered FDA regulations on the subject of preemption as part of the "text and structure" of the MDA. The FDA regulations are agency interpretations of its own authorizing statute. Such agency interpretations of statutes are controlling absent a contrary congressional intent. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The regulations considered by the court in Mitchell are the same regulations presented by the Plaintiffs in this case. 21 C.F.R. § 808.1 provides, in pertinent part:
(d) State or local requirements are preempted only when the Food and Drug Administration has established specific counterpart regulations where there are other specific requirements applicable to a particular device under the Act, thereby making any existing divergent State or local requirements applicable to the device different from, or in addition to, the specific Food and Drug Administration requirements. There are other State or local requirements that effect devices that are not preempted by § 521(a) of the Act because they are not "requirements applicable to a device" within the meaning of § 521(a) of the Act. The following are examples of State or local requirements that are not regarded as preempted by § 521 of the Act:
(1) Section 521(a) does not preempt State or local requirements of general applicability where the purpose of the requirement relates either to other products in *607 addition to devices (e.g., requirements such as general electrical codes, and the Uniform Commercial Code (warranty of fitness), or to unfair trade practices in which the requirements are not limited to devices).
(2) Section 521(a) does not preempt State or local requirements that are equal to, or substantially identical to, requirements imposed by or under the Act.
. . . . .
(ii) Generally, Section 521(a) does not preempt a State or local requirement prohibiting the manufacture of adulterated or misbranded devices. Where, however, such a prohibition has the effect of establishing a substantive requirement for a specific device, (e.g., a specific labeling requirement, then the prohibition will be preempted if the requirement is different from, or in addition to, a Federal requirement established under the Act.
(emphasis supplied).
The Mitchells argued that 21 C.F.R. § 808.1(d) showed that common law causes of action survived preemption unless the FDA had established "specific counterpart regulations" or "other specific requirements" for the medical device in question. The Mitchells asserted that because no such "regulations" or "requirements" existed with respect to the particular medical device at issue in that case, none of their common law causes of action were preempted. Collagen contended that the detailed premarket approval process constituted a "specific requirement." Therefore, any state laws that seek to add requirements "different from, or in addition to," the premarket approval process were preempted under the MDA. The court partially rejected the Mitchells' argument and held that "the premarket approval process constitutes a `specific requirement' for purposes of 21 C.F.R. § 808.1(d) and 21 U.S.C. § 360k(a)." Mitchell, 67 F.3d at 1279. Therefore, as stated earlier, the premarket approval process serves to preempt "at least some" state law claims.
The regulation did save the Mitchells claims based on a theory of adulteration, mislabeling and misbranding, however. Unsure of its authority to find that the MDA preempted adulteration claims, the court stated:
In the absence of more explicit legislative or regulatory direction, we hesitate to say, therefore, that an adulteration claim based on a product's failure to meet PMA standards standards that have been explicitly set forth by the FDA does not survive MDA preemption. Such a claim seeks merely to enforce the federal standard, not to add requirements "different from, or in addition to," it.
Mitchell, 67 F.3d at 1282. In support of its reluctance to find preemption, the court noted that
The existing regulations, albeit laconic, presently lend some support for the view that an adulteration claim based on a products failure to meet PMA standards survives MDA preemption. See 21 C.F.R. § 808.1(d)(2) (stating that state or local requirements "equal to, or substantially identical to" federal requirements imposed under the MDA are not preempted).
Id. at 1282 n. 9.
Four other courts in the Seventh Circuit have considered the issue of federal preemption of state law claims of adulteration. In Estate of LeMay v. Eli Lilly & Co., 881 F.Supp. 428 (E.D.Wis.1995), the plaintiffs brought an action alleging a defect in the lead wires used to connect an Automatic Implantable Cardioverter Defribrillator (AICD) to the deceased's heart. The court held that the plaintiffs' claims for strict liability, negligent design, failure to inspect and failure to warn were preempted by the MDA. The court concluded, however, that the plaintiffs' claims for negligent manufacture were not preempted. In their response to the defendant's motion for summary judgment, the plaintiffs alleged that the defendant had not manufactured the deceased's AICD system in compliance with FDA regulations. The court held that such a claim for negligent manufacturing, insofar as it sought to redress noncompliance with federal regulations, was not preempted. Id. at 431 (citing Ministry of Health, Province of Ontario, Canada v. Shiley, Inc., 858 F.Supp. 1426, 1439 (C.D.Cal.1994); Reiter v. Zimmer, Inc., *608 830 F.Supp. 199, 204 (S.D.N.Y.1993); Mendes v. Medtronic, Inc., 18 F.3d 13, 19-20 (1st Cir.1994) (holding that negligent manufacturing claims were preempted but stating "We express no opinion on whether products liability claims are preempted only if the manufacturer complied with applicable FDA regulations."); Martello v. Ciba Vision Corp., 42 F.3d 1167, 1169 (8th Cir.1994) (stating that the plaintiff's claim would not have been preempted if the plaintiff had alleged noncompliance with federal regulations)).
In Chambers, 917 F.Supp. 624 (S.D.Ind. 1996), the court considered the issue of preemption with respect to an implanted hip stem. The hip stem fell within the Investigational Device Exemption regulations of the MDA. The court first noted that state law causes of action based on negligence, breach of warranty or products liability were generally preempted by the MDA. However, the court found that "[u]nder certain circumstances . . . a claim may still be lodged for negligent manufacturing. . . ." Id. at 628 (citing LeMay and Reiter). The court clarified the parameters of this non-preempted cause of action:
Such a claim is customarily framed as a charge that the manufacturer did not follow its own FDA approved manufacturing procedures. . . . It cannot be brought on the basis that the procedures approved by the FDA are negligent, because then a tort remedy would impose a requirement different from or in addition to any MDA requirement that is applicable to the product and related to safety and effectiveness. . . . Such a claim would be preempted.
Id. (citations and footnote omitted). The court recognized that negligent manufacturing claims which seek to enforce federal standards are not preempted. Such claims are identical to the adulteration claims addressed in Mitchell.
In Lynnbrook Farms v. Smithkline Beecham Corp., 79 F.3d 620 (7th Cir.1996), the court considered the preemption issue with respect to the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA). The plaintiff brought several state law claims for damages incurred when the vaccines manufactured by the defendant failed to protect the plaintiff's cattle. Specifically, the plaintiff sued on theories of strict products liability, misrepresentation, false advertising, and breach of implied warranties of merchantability and fitness. The defendant moved for summary judgment contending that APHIS regulations preempted the plaintiff's state law causes of action. The court considered a preemption clause which mimicked the preemption clause found in the MDA: "states are not free to impose requirements which are different from, or in addition to, those imposed by USDA regarding the safety, efficacy, potency or purity of a product." Id. at 623 (citing 57 Fed.Reg. 38759 (August 27, 1992)). Indeed, the court looked to decisions interpreting the MDA's preemption clause in its analysis of the of APHIS's preemption. Id. at 628-29.
The court concluded that the APHIS regulations preempted all of the plaintiff's state law claims. In reaching its decision, the court considered a letter from the Acting Administrator of APHIS. That letter stated that "[w]e did not intend to preempt common law actions for damages arising from noncompliance with USDA regulatory standards." Id. at 629. The court interpreted this phrase as follows:
APHIS' letter signals that state tort claims are available when APHIS regulatory standards are violated or disregarded. The natural conclusion to draw from this statement is that when APHIS regulations are heeded, state tort claims involving the safety, efficacy, potency, or purity of an animal vaccine do not survive. This dichotomy follows from the preemption language chosen by APHIS, as it is precisely when APHIS regulations have been satisfied that a common law action imposes requirements in addition to, or different from, those mandated by APHIS. . . . Where noncompliance is involved, a common law action could simply serve to impose the standards of APHIS. Thus, it is evident that APHIS intended to preempt common law claims relating to areas under its regulatory control (namely the safety, purity, potency, and efficacy of vaccines) *609 which would impose additional or different requirements on vaccines, i.e., common law claims involving regulated areas in cases where the manufacturer has complied with all APHIS regulations and standards.
Id. at 629-30. Even though the plaintiff's claims ultimately failed (see below), the court recognized the existence of an adulteration claim under a preemption clause whose wording is similar to the MDA's.
In addition, the Seventh Circuit had previously laid the way for its decision in Mitchell and Lynnbrook Farms, as well as the decisions in LeMay and Chambers. In Slater v. Optical Radiation Corp., 961 F.2d 1330, 1334 (7th Cir.1991), cert. denied, 506 U.S. 917, 113 S.Ct. 327, 121 L.Ed.2d 246 (1992), the court noted that the preemption principle "is limited to efforts by states to impose sanctions for compliance with federal regulations" and "does not affect cases charging negligence in the implantation or removal of a lens, or complaining of contamination of the lens." Contamination claims, like adulteration claims, allege that a particular medical device failed to meet federal standards. A plaintiff's state law claims which merely seek to enforce federal standards, rather than those different from or in addition to federal standards, are not preempted.
These cases offer clear precedent in this circuit for the existence of a state claim based on adulteration/contamination/negligent manufacturing insofar as all of these claims allege failure to comply with the applicable federal regulations. Since the Plaintiffs have alleged that the Defendant failed to comply with FDA regulations with respect to this particular pacemaker, the Plaintiffs have stated a cause of action which is not preempted by the MDA.
E. Summary Judgment
Being able to make the right allegations will not automatically protect a plaintiff's claim from summary judgment. Under Fed.R.Civ.P. 56(c), summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The court's function is to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986). When the non-moving party bears the burden of proof at trial and the movant meets its burden of directing the court to items demonstrating the absence of a genuine issue of material fact, the nonmoving party must produce evidence sufficient to create a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 274 (1986). If the non-moving party fails to meet this evidentiary burden, the court should, in most circumstances, grant summary judgment in favor of the movant. Id. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.
Here, the Defendant has offered considerable proof that it complied with FDA regulations in every aspect of the design, manufacture and labeling of its pulse generator and leads. This evidence is sufficient to shift the burden to the Plaintiffs to produce evidence that the Defendant had not complied with FDA regulations in manufacturing the specific pacemaker involved in this case. The Plaintiffs have not done so. Instead, they complain that the pacemaker is still in the hands of the Defendant despite numerous requests for its return.
In each of the cases recognizing the existence a cause of action for adulteration, the plaintiff had not yet presented enough evidence to proceed with the claim. In Lynnbrook and Chambers the courts determined that the plaintiffs had not actually stated a claim for adulteration or to enforce the federal standard. In Lynnbrook the court found that the vaccines had met all federal standards for safety, purity, potency, and efficacy. The court concluded, "This is not a case involving non-compliance." Lynnbrook, 79 F.3d at 630. In Chambers the court sifted through the extensive expert testimony presented by the plaintiff and determined that the plaintiff had attempted to bring their action "on the basis that the procedures approved by the FDA [were] negligent," instead of on the theory of adulteration. Specifically, the court found that "nothing more *610 than speculation supports any inference that Osteonics failed to follow its own FDA approved manufacturing procedures." Chambers, 917 F.Supp. at 629.
In Mitchell the court granted summary judgment in favor of the defendant based on the plaintiffs' failure to present triable issues of fact sufficient to withstand summary judgment against them. The court upheld the grant of summary judgment because the Mitchells had failed to establish a genuine issue of material fact that the product was adulterated. The Mitchells' state law claims based on adulteration ultimately failed because they had "`pointed to no evidence of adulteration upon which they could go to a jury.'" Mitchell, 67 F.3d at 1282 (quoting Mitchell v. Collagen Corp., 870 F.Supp. 885, 897 (N.D.Ind.1994) (Moody, J.)).
In LeMay the court recognized the dearth of evidence to substantiate the plaintiff's claim but allowed the plaintiff additional time to conduct discovery on her adulteration claim. LeMay, 881 F.Supp. at 431. See also, Reiter, 830 F.Supp. at 204. The court noted that the plaintiff had raised the adulteration claim for the first time in her response to the defendants' motion for summary judgment. Since the plaintiff had not had an adequate opportunity to conduct discovery on her negligent manufacturing/adulteration claim, the court extended the discovery deadline. In LeMay the court even allowed the plaintiff to amend her complaint to clarify her claim for negligent manufacturing.
In this case, the Plaintiff has not had the opportunity to inspect the allegedly defective pacemaker. The Defendant has had control over the device and has not turned it over for inspection. Regardless of the reasons for the Defendant's actions, the Court finds that summary judgment would be premature without discovery of the medical device which forms the basis of the claim. The Court will, therefore, deny the Defendant's motion for summary judgment without prejudice and with leave to refile the motion after adequate discovery of the pacemaker is concluded. See First Chicago Int'l v. United Exchange Co., 836 F.2d 1375, 1380 (D.C.Cir. 1988) (holding that the district court should not have granted summary judgment even when party failed to file Rule 56(f) affidavit when opposing motions and outstanding discovery requests alerted the court of the need for further discovery).
F. Breach of Express Warranties
In Mitchell, the court held that the plaintiffs claims for breach of express warranties were not preempted by the MDA. Citing a case from the Third Circuit, the court noted that "enforcement of an express warranty would not seek to add requirements `different from, or in addition to,' those set forth in the MDA, but rather, would `enforce the very language which the FDA approved' on the particular label at issue." Mitchell, 67 F.3d at 1285 (citing Michael v. Shiley, Inc., 46 F.3d 1316, 1328 (3d Cir.1995)). See also, American Airlines, Inc. v. Wolens, ___ U.S. ___, ___, 115 S.Ct. 817, 824, 130 L.Ed.2d 715, 726 (1995) (holding that the Airline Deregulation Act of 1978 did not preempt claims "seeking recovery solely for the airline's alleged breach of its own, self-imposed undertakings"); Cipollone, 505 U.S. at 526, 112 S.Ct. at 2622, 120 L.Ed.2d at 429 (plurality opinion) (stating that "a common law remedy for a contractual commitment voluntarily undertaken should not be regarded as a `requirement imposed under State law'").
Neither party directs the court to any facts underlying this claim. The only discussion of this claim comes in the Defendant's motion for summary judgment. In that motion the Defendant argues that it is entitled to summary judgment because the claim is preempted by the MDA. Mitchell clearly negates this argument. Once the Defendant's unsuccessful argument is removed from consideration, neither the Defendant nor the Plaintiffs have made any showing as to why summary judgment should or should not be granted on the issue of breach of express warranties. In Celotex, the Supreme Court recognized that "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' *611 which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553, 91 L.Ed.2d at 274 (citing Rule 56(c)). In this case, the Defendant has not met this initial burden. Summary judgment in the Defendant's favor is not warranted.
G. Conversion
Medtronic took possession of the pacemaker after its surgical removal from Mrs. Kozma's body. To this date, the Defendant has not returned the pacemaker to the Plaintiffs. The Plaintiffs claim that the Defendant's continued possession of the pacemaker constitutes the tort of conversion. In Computers Unlimited, Inc. v. Midwest Data Systems, Inc., 657 N.E.2d 165 (Ind.Ct.App.1995), the court defined the tort of conversion:
Conversion, as a tort, consists either in the appropriation of the personal property of another to the party's own use and benefit, or in its destruction, or in exercising dominion over it, in exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from his possession, under a claim and title inconsistent with the owner's.
Id. at 171. In this case, the Defendant exercised dominion over Mrs. Kozma's pacemaker "in exclusion and defiance of the rights" of Mrs. Kozma.
Both the Plaintiffs and the Defendant argue over the motive behind the Defendant's possession of the pacemaker. The Defendant contends that on December 21, 1994, it offered to turn the pacemaker over to the Plaintiffs so long as the Plaintiffs conducted no destructive testing on the device. (Def.'s Mot.Summ. J., Ex. 2.) The Plaintiffs counter that the Defendant made the offer only after the Plaintiffs had filed the present suit, including a claim for conversion, on December 16, 1994. The Defendant retorts that it did not receive service of the complaint until December 22, 1994, which was one day after it sent its offer to the Plaintiffs. The purpose of these arguments is unclear. The mental state of the Defendant committing the exercise of dominion is not relevant to a claim for tortious conversion. See Computers Unlimited, 657 N.E.2d at 171 ("Mens rea ... is not an element of tortious conversion. . . . Good faith is no defense."). To make out a claim for tortious conversion, the Plaintiffs need not show that the Defendant intended to deprive Mrs. Kozma of her pacemaker. The Plaintiffs need only prove that the Defendant intended to perform the acts which deprived Mrs. Kozma's rights to the pacemaker. The Defendant claims that it did not refuse to return the pacemaker "in defiance of the rights" of Mrs. Kozma because it voluntarily offered to return the pacemaker. Such an argument seeks to require a defendant to act "defiantly" before liability may attach. No such showing is required. Therefore, the Defendant's motion for summary judgment on the claim of conversion is DENIED.
IV. Conclusion
For the foregoing reasons, the Defendant's Motion for Summary Judgment is GRANTED with respect to the Plaintiffs' claims for strict liability/failure to warn, negligent design and breach of implied warranties. The Defendant's Motion for Summary Judgment is DENIED, without prejudice and with leave to renew, with respect to the Plaintiffs' claims for negligent manufacturing insofar as those claims assert adulteration or failure to comply with FDA regulations. The Defendant's Motion for Summary Judgment is DENIED with respect to the Plaintiffs' claims for breach of express warranties and conversion.
NOTES
[1] The Plaintiffs further identify the lead as a Model 400458 and the pulse generator as having the serial number QE2109305H. (Pls.' Am. Compl. ¶ 5).
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IN THE SUPREME COURT OF PENNSYLVANIA
IN RE: : No. 522
:
AMENDMENT OF RULE 1910 OF THE : JUDICIAL ADMINISTRATION DOCKET
RULES OF JUDICIAL ADMINISTRATION :
ORDER
PER CURIAM
AND NOW, this 8th day of October, 2019, it is Ordered pursuant to Article V,
Section 10 of the Constitution of Pennsylvania that Rule 1910 of the Rules of Judicial
Administration is amended in the attached form.
To the extent that notice of proposed rulemaking would otherwise be required by
Pa.R.J.A. No. 103, the immediate promulgation of the amendment is found to be in the
interest of efficient administration.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and the
amendments shall be effective on January 1, 2020.
Additions are bolded and are underlined.
Deletions are bolded and are [bracketed].
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627 F.3d 534 (2010)
UNITED STATES of America, Plaintiff-Appellee,
v.
Danny Keith THOMAS, Defendant-Appellant.
No. 08-8436.
United States Court of Appeals, Fourth Circuit.
Argued: September 24, 2010.
Decided: December 29, 2010.
ARGUED: John Byron, Wake Forest University, School of Law, Winston-Salem, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: John J. Korzen, Director, Caroline B. Payseur, Wake Forest University, School of Law, Appellate Advocacy Clinic, Winston-Salem, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.
Before TRAXLER, Chief Judge, KING, Circuit Judge, and JEROME B. FRIEDMAN, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge KING and Senior Judge FRIEDMAN joined.
*535 OPINION
TRAXLER, Chief Judge:
Danny Keith Thomas appeals an order of the district court dismissing as untimely his pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C.A. § 2255 (West Supp.2010). For the following reasons, we vacate the district court's order and remand the motion for further proceedings.
I.
On November 7, 2005, Thomas pleaded guilty pursuant to a plea agreement to attempted possession of methamphetamine, in violation of 21 U.S.C.A. §§ 841(a)(1) and (b)(1)(C) (West 1999 & Supp.2010), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp.2010). He was sentenced to 30 months imprisonment on the methamphetamine charge, and 60 months imprisonment on the firearm charge, to be served consecutively. Judgment was entered on August 30, 2006, and no appeal was taken.
On October 10, 2008, Thomas filed a pro se motion under 28 U.S.C.A. § 2255, seeking to vacate his § 924(c) firearm conviction and correct his sentence. Thomas acknowledged that the motion would be barred under the general one-year limitations period of § 2255, see 28 U.S.C.A. § 2255(f)(1), but asserted that his motion was timely under the alternative limitations period set forth in 28 U.S.C.A. § 2255(f)(3), because he was filing it within one year of the Supreme Court's decision in Watson v. United States, which held that "a person does not `use' a firearm under § 924(c)(1)(A) when he receives it in trade for drugs." 552 U.S. 74, 83, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007).
Prior to receiving a response from the government, the district court dismissed the petition as untimely under § 2255(f)(1) and rejected Thomas's claim that his motion was timely under § 2255(f)(3). The district court held that Watson did not announce a new rule of constitutional law and, in any event, the Supreme Court had not made the holding in Watson retroactively applicable to cases on collateral review. We subsequently appointed counsel to represent Thomas and granted a certificate of appealability to consider the issue of whether Watson announced a new rule of law that applies retroactively to cases on collateral review for purposes of § 2255(f)(3).
On appeal, the government agrees with Thomas that the Supreme Court recognized a new rule in Watson and that it is retroactively applicable to cases on collateral review. However, the government contends that we should affirm the district court's decision because Thomas procedurally defaulted his Watson claim by failing to raise it on direct appeal and cannot establish cause and prejudice, or actual innocence, to excuse his default.
II.
A.
Under 28 U.S.C.A. § 2255, federal prisoners "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States" may move the district "court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C.A. § 2255(a). Section 2255(f) imposes a one-year limitations period upon the filing of § 2255 motions, which usually runs from "the date on which the judgment of conviction becomes final." 28 U.S.C.A. § 2255(f)(1). Section 2255(f)(3), however, provides that the one-year limitations *536 period begins to run from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C.A. § 2255(f)(3).
Although acknowledging that his § 2255 motion would be untimely under § 2255(f)(1) because it was filed more than one year after his judgment of conviction became final, Thomas asserts that his § 2255 motion is timely under § 2255(f)(3), because it was filed within one year of the Supreme Court's decision in Watson, see Dodd v. United States, 545 U.S. 353, 357-58, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (holding that the one-year limitations period runs "from the date on which the right... was initially recognized by th[e] [Supreme] Court"), which he also contends we should apply retroactively to his motion. The government agrees. However, the district court rejected the claim, apparently of the view that a prisoner may not take advantage of § 2255(f)(3) unless the Supreme Court has made a new rule of constitutional law retroactively applicable to cases on collateral review.
In United States v. Sanders, 247 F.3d 139 (4th Cir.2001), we "assume[d], without deciding, that a circuit court can declare a new rule retroactive on collateral review in an initial § 2255 petition." Id. at 146 n. 4. In doing so, we noted the contrast in the statutory language governing retroactivity for purposes of § 2255(f)(3) and the statutory language governing retroactivity for the purposes of filing a "second or successive" motion in § 2255(h). Id. Unlike in the former, which references a "right [that] has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review," 28 U.S.C.A. § 2255(f)(3) (emphasis added), the latter specifically provides that "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," 28 U.S.C.A. § 2255(h)(2) (emphasis added).[1] We also noted, however, that "the language of subsection [(f)](3) can also be read to require the Supreme Court to make the decision on retroactivity before a petitioner may file an initial § 2255 motion." Sanders, 247 F.3d at 146 n. 4; but see Dodd, 545 U.S. at 365-366 n. 4, 125 S.Ct. 2478 (Stevens, J., dissenting) (noting but disagreeing with the assumption made by the majority in Dodd and "every Circuit to have addressed the issue," "that the decision to make a new rule retroactive for purposes of this section can be made by any lower court," rather than "only [by] the Supreme Court" (first emphasis added)).
We now join those circuits that have considered the issue and hold that § 2255(f)(3) does not require that the initial retroactivity question be decided in the affirmative only by the Supreme Court. See Wiegand v. United States, 380 F.3d 890, 892 (6th Cir.2004) (holding that "any federal court can make the retroactivity decision" for purposes of § 2255(f)(3)); *537 Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir.2004) (noting that "every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255[(f)](3)"), aff'd 545 U.S. 353, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005); United States v. Swinton, 333 F.3d 481, 486, 487 (3d Cir.2003) (concluding that "the statute of limitations provision of § 2255 allows district courts and courts of appeals to make retroactivity decisions" and that this "may be essential to put the question before the Supreme Court for final resolution"); Fischer v. United States, 285 F.3d 596, 599-600 (7th Cir.2002) (noting that "district and appellate courts, no less than the Supreme Court, may issue opinions holding that a decision applies retroactively to cases on collateral review" (internal quotation marks and alteration omitted)); United States v. Lopez, 248 F.3d 427, 432 (5th Cir.2001) (holding that section 2255(f)(3) "does not require that the retroactivity determination must be made by the Supreme Court itself").
B.
Having determined that § 2255(f)(3) allows us to make the initial determination of retroactivity, we turn to the question of whether the decision in Watson announced a new rule of law that applies retroactively to cases on collateral review.
Generally speaking, when the Supreme Court announces "a `new rule,' that rule applies to all criminal cases still pending on direct review." Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Where a conviction is "already final, however, the rule applies only in limited circumstances." Schriro, 542 U.S. at 351, 124 S.Ct. 2519. New procedural rules apply retroactively to cases on collateral review only if they fall within the "small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 352, 124 S.Ct. 2519 (internal quotation marks omitted); see also Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). This is because such rules "regulate only the manner of determining the defendant's culpability." Schriro, 542 U.S. at 353, 124 S.Ct. 2519. "They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Id. at 352, 124 S.Ct. 2519.
"New substantive rules," in contrast, "generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id. at 351-52, 124 S.Ct. 2519 (citation omitted); see also Saffle, 494 U.S. at 495, 110 S.Ct. 1257 (noting that rules that "decriminalize a class of conduct [or] prohibit the imposition of [certain] punishment on a particular class of persons" are substantive in nature). "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Schriro, 542 U.S. at 353, 124 S.Ct. 2519. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him." Id. at 352, 124 S.Ct. 2519 (internal quotation marks omitted).
Under 18 U.S.C.A. § 924(c)(1)(A)(i), "any person who, during and in relation to *538 a crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... be sentenced to a term of imprisonment of not less than 5 years." Id.
In Smith v. United States, the Supreme Court held that a person "uses" a firearm under § 924(c)(1)(A) when he trades his firearm for drugs. 508 U.S. 223, 237, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). The firearm is being "used" for purposes of the statute, under the plain meaning of that term, when a defendant uses it "as an item of barter or commerce" to purchase drugs. Id. In Watson, however, the Supreme Court distinguished Smith and reached a different result for the converse situation, holding that "a person does not `use' a firearm under § 924(c)(1)(A) when he receives it in trade for drugs." Watson, 552 U.S. at 83, 128 S.Ct. 579 (emphasis added).
The district court held that the Supreme Court in Watson did not announce a new rule of constitutional law for purposes of § 2255(f)(3) because it merely interpreted the meaning of the term "use" in § 924(c)(1)(A). This is true. However, § 2255(f)(3) requires only that the Supreme Court initially recognize the claimed new "right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C.A. § 2255(a) (emphasis added). Furthermore, the Supreme Court in Watson plainly interpreted the term "use" in such a way as to "narrow [its] scope" and, in doing so, "place[d] particular conduct ... beyond the [government's] power to punish" under § 924(c)(1)(A). Schriro, 542 U.S. at 351-52, 124 S.Ct. 2519. Thus, the rule announced by the Watson Court effectively "decriminalize[d]," for purposes of the "use" prong of § 924(c), "a class of conduct." Saffle, 494 U.S. at 495, 110 S.Ct. 1257. A defendant may not be convicted of using a firearm in furtherance of a drug trafficking offense under § 924(c) if he merely receives the gun in exchange for drugs. See Watson, 552 U.S. at 83, 128 S.Ct. 579. And, because this conduct is beyond the scope of § 924(c)(1)(A), a defendant convicted under such facts would "stand[ ] convicted of an act that the law does not make criminal" and serve "a punishment that the law cannot impose upon him." Schriro, 542 U.S. at 352, 124 S.Ct. 2519 (internal quotation marks omitted). Accordingly, we hold that the right announced in Watson is a new substantive right which must be applied retroactively to cases on collateral review for purposes of § 2255(f)(3).
III.
We turn now to the government's claim that we should nevertheless affirm the district court's dismissal of the § 2255 motion on the basis of procedural default. See Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ("Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." (citations and internal quotation marks omitted)). Specifically, the government asserts that Thomas cannot demonstrate "cause" for the default because the legal basis for a Watson-type claim was recognized and available at the time Thomas could have noticed a direct appeal. The government also asserts that Thomas cannot demonstrate prejudice or actual innocence (1) because Thomas pled guilty to the "possession" prong and not the "use" prong of § 924(c), rendering Watson inapplicable to *539 his case, and (2) in any event, because Thomas did not trade drugs for the firearm (which might entitle him to take advantage of Watson's interpretation of the "use" provision), but rather was convicted based upon his intent to trade a firearm for drugs (which remains punishable under the "use" prong pursuant to its interpretation in both Smith and Watson).[2]
Under § 2255(b), "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the court must grant a prompt hearing to "determine the issues and make findings of fact and conclusions of law with respect thereto." Id. So far as they go, the records in this case indicate that Thomas was charged in the indictment with "knowingly and unlawfully us[ing] and carry[ing] a firearm" in furtherance of the drug trafficking crime and with "possess[ing] said firearm," in violation of 18 U.S.C.A. § 924(c). S.J.A. 2. It appears that Thomas agreed in the Plea Agreement to enter a voluntary plea of guilty to "attempted possession of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)." S.J.A. 3 (emphasis added). However, the judgment of conviction relates the offense of conviction as "[u]sing and carrying a firearm during and in relation to a drug trafficking crime," in violation of § 924(c). S.J.A. 15.
Thomas's pro se § 2255 motion does little to enlighten us about the details of Thomas's plea or the merits of the specific claim he intended to raise in his § 2255 motion. Thomas's reliance upon Watson for purposes of § 2255(f)(3) suggests he intends to claim that he only pleaded guilty to "using" a firearm, and that he traded drugs for the firearm in question. However, Thomas only summarily contends that the firearm in question "was not in `use' as a firearm `during and in relation to ... a drug trafficking crime' for purposes of ... § 924(c)(1)(A)," J.A. 12, and he often appears to rely more upon Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and the Supreme Court's decision in Smith, as authority for his claim that the 924(c) conviction should be invalidated. We also note that, in his affidavit accompanying the pro se § 2255 motion, Thomas avers that the "firearm ... was being used to purchase an illegal substance and represented merely a `medium of exchange.'" J.A. 14. And the Presentence Report states that "Thomas admitted that he intended to trade the assault-type SKS 7.62 caliber *540 rifle to [his methamphetamine supplier] in exchange for 3.5 grams of methamphetamine." S.J.A. 23. However, we do not have either the plea or sentencing transcripts which might be available and of benefit to either Thomas or the government regarding the precise nature of the claim and whether Thomas can even take advantage of Watson at all.
To conclude, because Thomas's filings in the district court were pro se and the district court dismissed the § 2255 motion as untimely without obtaining a response from the government, the factual basis of Thomas's precise claim is not entirely clear from the motion. Indeed, Thomas's claim may not even encompass an argument that he only pled guilty to "use" of the firearm and that he merely received the firearm in trade for methamphetamine. Under the circumstances, we think the better course is to simply vacate the district court's decision denying the motion as untimely and remand the matter to the district court for further consideration of the claim and the parties' respective arguments.
IV.
For the foregoing reasons, we vacate the district court's order dismissing Thomas's § 2255 motion and remand to the district court for further proceedings in accordance with this decision.
VACATED AND REMANDED.
NOTES
[1] See In re Vial, 115 F.3d 1192, 1197 (4th Cir. 1997) (noting that, for purposes of filing a successive § 2255 motion, "a new rule of constitutional law has been `made retroactive to cases on collateral review by the Supreme Court' within the meaning of § 2255 only when the Supreme Court declares the collateral availability of the rule in question, either by explicitly so stating or by applying the rule in a collateral proceeding"); cf. Tyler v. Cain, 533 U.S. 656, 662, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (interpreting phrasing in § 2244(b)(2)(A) that is nearly identical to § 2255(h) as requiring that the Supreme Court make the initial retroactivity determination).
[2] Between the decisions in Smith and Watson, the Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), also interpreting the "use" provision of § 924(c) and holding that a defendant does not "use" a firearm during and in relation to a drug-trafficking activity unless he actively employs the firearm. See id. at 147-51, 116 S.Ct. 501. In response, Congress amended § 924(c) to also criminalize possession of a firearm in furtherance of drug trafficking crimes. See Watson, 552 U.S. at 83, 128 S.Ct. 579. In Watson, the Supreme Court declined to reach the question of whether a defendant "possesses" a firearm in furtherance of a drug trafficking crime when he receives a firearm in exchange for drugs. See id.; see also United States v. Jenkins, 566 F.3d 160, 162 n.1 (4th Cir.2009) (noting that Watson addressed only the meaning of the phrase "uses" a firearm in 18 U.S.C.A. § 924(c), and not possession of a firearm). However, in a recent decision, we followed those circuit courts that have addressed the issue since Watson and held that drugs-for-firearms trades do fall within § 924(c)'s possession prong. See United States v. Robinson, No. 09-4276, 2010 WL 4869770, ___ F.3d ___ (4th Cir.2010); see also United States v. Gurka, 605 F.3d 40, 41 (1st Cir.2010); United States v. Gardner, 602 F.3d 97, 103 (2d Cir. 2010); United States v. Doody, 600 F.3d 752, 754-55 (7th Cir.2010); United States v. Mahan, 586 F.3d 1185, 1189 (9th Cir.2009).
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537 U.S. 817
OVERYv.MURPHY ET VIR.
No. 01-1706.
Supreme Court of United States.
October 7, 2002.
1
CERTIORARI TO THE COURT OF CIVIL APPEALS OF ALABAMA.
2
Ct. Civ. App. Ala. Certiorari denied. Reported below: 827 So. 2d 804.
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 FEDERAL NATIONAL MORTGAGE
3 ASSOCIATION,
4 Plaintiff-Appellee,
5 vs. No. 35,946
6 PATRICIA S. LEVEY a/k/a
7 PATRICIA LEVEY,
8 Defendant-Appellant,
9 and
10 WELLS FARGO BANK, N.A.,
11 Defendant.
12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Raymond Z. Ortiz, District Judge
14 McCarthy & Holthus, LLP
15 Karen Weaver
16 Joshua T. Chappell
17 Albuquerque, NM
18 for Appellee
19 Gleason Law Firm, LLC
20 Deidre Gleason
21 Heath, MA
22 for Appellant
1 MEMORANDUM OPINION
2 ZAMORA, Judge.
3 {1} Defendant Patricia S. Levey seeks to appeal from the denial of a motion for
4 summary judgment. We previously issued a notice of proposed summary disposition
5 in which we proposed to dismiss for want of a final order. Defendant has filed a
6 memorandum in opposition, and Plaintiff has filed a memorandum in support, which
7 we have duly considered. Because we remain unpersuaded that this matter is properly
8 before us, we dismiss the appeal.
9 {2} We previously described the pertinent background information in the notice of
10 proposed summary disposition. We will not reiterate at length here. Suffice it to say,
11 although the denial of Defendant’s motion for summary judgment was not a final
12 appealable order, see Doe v. Leach, 1999-NMCA-117, ¶ 12, 128 N.M. 28, 988 P.2d
13 1252, the district court’s subsequent grant of Plaintiff’s cross-motion and entry of an
14 order of foreclosure, would normally be regarded as a final, appealable decision. See
15 also Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865.
16 However, Defendant subsequently filed a timely motion for reconsideration, which
17 suspended the finality of the district court’s preceding order. See id. (“[W]hen a party
18 makes a motion challenging the district court’s determination of the rights of the
2
1 parties contained in [a] foreclosure decree, the decree is not final . . . until the district
2 court disposes of the motion.”).
3 {3} In her memorandum in opposition Defendant makes no effort to address the
4 foregoing principles, or the authorities cited. Instead, she asserts that the district
5 court’s determination relative to standing should be immediately appealable on
6 grounds that, if the district court erred, the matter should not proceed further. [MIO
7 4-5] The only authority she cites as indirect support for this proposition is Deutsche
8 Bank Nat’l Trust Co. v. Johnston, 2016-NMSC-013, ¶ 23, 369 P.3d 1046. However,
9 Johnston entailed an appeal from a decree of foreclosure; it did not indicate that an
10 interlocutory ruling on a question relative to standing is immediately appealable as a
11 matter of right. Further, Johnston analogized standing challenges, in the context of
12 foreclosure actions, to the defense of failure to state a claim. Id. ¶ 34. Of course, the
13 denial of a motion to dismiss for failure to state a claim generally constitutes an
14 interlocutory order, rather than a final determination that is immediately appealable
15 as a matter of right. See, e.g., Smoot v. Physicians Life Ins. Co., 2004-NMCA-027,
16 ¶¶ 5-6, 135 N.M. 265, 87 P.3d 545 (reviewing the denial of a motion to dismiss for
17 failure to state a claim on interlocutory appeal); Romero v. U.S. Life Ins. Co.,
18 1986-NMCA-044, ¶ 1, 104 N.M. 241, 719 P.2d 819 (same). We therefore reject
19 Defendant’s argument.
3
1 {4} In the notice of proposed summary disposition we advised that if the parties
2 should obtain a written ruling on the pending motion, we would proceed to consider
3 the merits. [CN 5] Plaintiff has advised that no such order has been entered. [MIS 3]
4 Until the district court has taken a formal position on the submission, the matter has
5 not been fully and finally resolved; and accordingly, the instant appeal is premature.
6 See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 6, 147 N.M. 303, 222
7 P.3d 675 (observing that when a motion that challenges the district court’s
8 determination of the rights of the parties is pending in the district court, the judgment
9 or order entered by that court remains non-final, such that appeal is premature); see
10 also Rule 1-054.1 NMRA, committee cmt. (“Because there no longer is an automatic
11 denial of post-judgment motions, the time for filing notices of appeal will run ‘from
12 the filing of an order expressly disposing of the . . . motion’.” (quoting Rule
13 12-201(D)(1)).
14 {5} Accordingly, for the reasons stated above and in the notice of proposed
15 summary disposition, the appeal is summarily dismissed.
16 {6} IT IS SO ORDERED.
17
18 M. MONICA ZAMORA, Judge
4
1 WE CONCUR:
2
3 LINDA M. VANZI, Chief Judge
4
5 JULIE J. VARGAS, Judge
5
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244 F.2d 413
Charles H. GOLDMAN, Appellant,v.HOLLYWOOD BEACH HOTEL COMPANY, Appellee.
No. 16349.
United States Court of Appeals Fifth Circuit.
May 9, 1957.
S. O. Carson, John H. Wahl, Jr., Miami, Fla., Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, Fla., of counsel, for appellant.
Willis H. Flick, T. J. Blackwell, Blackwell, Walker & Gray, Miami, Fla., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
JONES, Circuit Judge.
1
The appellant, Charles H. Goldman, a resident of Illinois, and his wife, made reservations for December 25, 1952, at the Hollywood Beach Hotel, operated at Hollywood, Florida, by the appellee, Hollywood Beach Hotel Company, an Ohio corporation. On arriving at this hotel the Goldmans were informed that a room was not available there but they were provided with a room at the Town House, also operated by the appellee. The Goldmans were given the use of the dining room and other facilities of the Hollywood Beach Hotel. This hotel operated an automobile for the free transportation of the Goldmans and others similarly situated between the hotel where they had their sleeping quarters, and the Hollywood Beach Hotel where the dining and recreational facilities were available. On the evening of December 27th Mr. and Mrs. Goldman, and another or others, were transported from the Town House to the Hollywood Beach Hotel, arriving there at about 7:30 P.M. There were several cars waiting to drive up to the entrance to the hotel. The car in which the Goldmans were riding stopped across the driveway from the hotel entrance. The driver was quoted as saying "Everyone out." The driver left the car to deliver a jacket to the driver of another car. In the back of the car with the Goldmans was another passenger who opened the door, stepped from the car and went his way. Goldman followed, slipped and fell. He was taken into the office of the hotel doctor. While there Mrs. Goldman wiped some grease or oil from the side of his trousers and the edge of his coat. She did not notice, nor did he, whether there was any oil or grease on his shoes. He sustained an arm injury and for it he brought a suit in the United States District Court for the Southern District of Florida with diversity of citizenship stated as the basis for Federal jurisdiction. Goldman testified that he slipped but did not see what caused his fall. He could not recall whether or not he looked at the pavement before stepping out of the automobile. Mrs. Goldman testified that she saw a wet spot or a puddle at the place where Goldman fell. Both of them testified that his legs were partly under the car after the fall.
2
By the original complaint Goldman alleged that the defendant hotel company was negligent in that it knew or in the exercise of reasonable care should have known of the existence of the substance on which he slipped and that it failed "to keep its premises in a reasonably safe condition for the welfare of plaintiff as an invitee thereon." The hotel company denied negligence and asserted contributory negligence of Goldman as a defense. On issues so framed the cause went to trial under a stipulation that the question of liability would be first determined. During the trial the plaintiff took the position that the hotel company owed the plaintiff the highest degree of care. He advanced the theory that by operating the limousine the hotel company was rendering, horizontally the same type of service as hotels perform in the moving of guests vertically by means of elevators, and that the degree of required care should be no less in the horizontal than in the vertical transportation. When Mr. and Mrs. Goldman had testified the plaintiff's attorney announced that he had no more evidence to submit on the question of liability. The hotel company moved for a directed verdict. The motion was granted and judgment was entered for the defendant. Thereafter Goldman filed a motion for a new trial and a motion for leave to amend his complaint by alleging his horizontal elevator and highest degree of care theory. Both motions were denied but Goldman was permitted to amend his complaint by alleging as the hotel company's negligence its failure "to exercise the highest degree of care in providing a safe place for plaintiff to alight". From the judgment adverse to him Goldman has appealed.
3
We are to determine whether there was a showing made of negligence sufficient to carry the case to the jury. In so doing the question to be resolved is whether the hotel company, under the circumstances, exercised the care required of it by law.
4
"Negligence", so the Supreme Court of Florida has said, "is the failure to observe for the protection of another's interest such care, precaution and vigilance as the circumstances justly demand whereby injury is done to such a person, or, in another form, negligence is the failure to do what a reasonable and prudent person would ordinarily have done, or the doing of what such a person would have done under the situation whereby injury is done to another". Russ v. State, 140 Fla. 217, 191 So. 296, 298; De Wald v. Quarnstrom, Fla., 60 So.2d 919. The appellant urges that there should be no difference between the degree of care required in horizontal transportation by automobile and vertical transportation provided by an elevator. In support of this contention the appellant cites Mitchell v. Marker, 6 Cir., 62 F. 139, and Southern Railway Co. v. Taylor, 57 App.D.C. 21, 16 F.2d 517, 523. These cases compare the degree of care required in the operation of elevators with the duty imposed upon a common carrier of passengers. In the latter case it is said that, "This comparison is induced by reason of the similarity of the duty each owes to those under his care, not to the similarity of service or the instrumentality employed in rendering the service." We are not here concerned with the duty or degree of care required of one who is a common carrier. The transportation service rendered by the appellee was that; of a private carrier. Although, under the circumstances, the appellee was acting as a private carrier for hire, the general rule does not impose upon it a higher duty than that of ordinary care. 13 C.J.S. Carriers § 678 d, p. 1262. It is not necessary that we decide what degree of care is required of operators of elevators in Florida, although the Supreme Court of Florida has indicated that the exercise of reasonable care is all that is required in the operation of an escalator. Burdine's, Inc., v. McConnell, 146 Fla. 512, 1 So.2d 462.
5
No negligence in the operation of the car in which Goldman was riding was shown. It had come to a stop before there was any injury. The negligence charged is the failure of the appellee hotel company to provide a safe place for Goldman to alight, or, in other words, in stopping the vehicle at a place where it was unsafe for him to alight.
6
The district judge, in stating the reasons for directing a verdict for the appellee, expressed the view that it was not necessary to determine whether the hotel company owed Goldman the highest degree of care or merely reasonable care since negligence in any degree had not been shown. We are of the same opinion. The owner of premises is not the insurer of the safety of an invitee. Moulden v. Jefferson Standard Life Insurance Co., 147 Fla. 36, 2 So. 2d 302; Sagesser v. Sears, Roebuck & Co., 5 Cir., 1956, 230 F.2d 806. Goldman was a paying guest of the hotel company, a customer, and his legal relationship to it was that of an invitee. The doctrine of res ipsa loquitur does not apply in such a case as is before us. The negligence must be shown. Batson v. Western Union Telegraph Co., 5 Cir., 1935, 75 F.2d 154; Heps v. Burdine's, Inc., Fla., 69 So.2d 340; Moulden v. Jefferson Standard Life Insurance Co., 143 Fla. 344, 196 So. 688.
7
In recent years, the Supreme Court of Florida has frequently considered the duty to invitees imposed on various types of business operations. Many of its decisions have been considered by this court in the recent opinion of Pogue v. Great Atlantic & Pacific Tea Co., 5 Cir., 1957, 242 F.2d 575. The Florida court has announced the rule that where large crowds congregate at places of amusement, the owner who has failed to provide a place for the deposit of empty beverage bottles should expect that empty bottles will be placed in aisles and passageways and become a hazard to patrons. Being so charged with notice, the owner had not discharged his duty to invitees and was liable to a patron who slipped upon a bottle and was injured in the resulting fall. Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720. In the Pogue case, supra, the doctrine of the Wells case was applied to a case where an injury was sustained from a fall by an invitee patron after slipping upon a vegetable in the aisle of a self-service grocery and market, it appearing that the customary operations of the store resulted in the frequent littering of the aisle floor with pieces of vegetables.
As stated by the Supreme Court of Florida:
8
"The rule is that the owner of premises is charged with the duty of exercising ordinary care to keep his premises in a reasonably safe condition for the purposes to which they are adapted. He is responsible for injuries to his invitees due to latent or concealed perils, known to him or which in the exercise of reasonable care, should have been known to him, and which were by the invitee unknown or by the exercise of due care could not have been known to such invitee, and, of course, in the absence of a warning by the owner as to such dangers." Messner v. Webb's City, Inc., Fla., 62 So.2d 66, 67. See Hall v. Holland, Fla., 47 So.2d 889.
9
The driveway which formed the approach to the hotel was similar to a parking lot, and it has been held that there is nothing inherently dangerous about a parking lot. Foley v. Hialeah Race Course, Fla., 53 So.2d 771; Jackson v. Pike, Fla., 87 So.2d 410. If it be assumed that the evidence of the appellant has established, prima facie, that he slipped on oil or grease in the driveway at the appellee's hotel and was injured as the result of a fall, we must find, if recovery is to be permitted, evidence of the appellee's negligence. There is no evidence that the oil or grease was placed upon the driveway by any of appellee's employees or that any of them knew of its presence, nor was it shown that the oil or grease had been on the driveway long enough to charge the appellee with knowledge of its presence. Absent such evidence the negligence of the appellee has not been shown. This is not a case, such as the Wells and Pogue cases, supra, where the condition resulting in the injury was created by or should have been anticipated by the owner. See Messner v. Webb's City, Inc., supra; Carls Markets, Inc., v. Leonard, Fla., 73 So.2d 826. The distinction is noted by the Supreme Court of Florida in Brisson v. W. T. Grant Co., Fla., 79 So. 2d 771.
10
Where there is no evidence showing negligence or from which an inference of negligence can properly be drawn it is not error to direct a judgment for the defendant. Messner v. Webb's City, Inc., supra; Earley v. Morrison Cafeteria Co. of Orlando, Fla., 61 So.2d 477. Such is the case before us. The judgment of the district court is
11
Affirmed.
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510 U.S. 1060
Pernellv.United States.
No. 93-6821.
Supreme Court of United States.
January 10, 1994.
1
Appeal from the C. A. 6th Cir.
2
Certiorari denied. Reported below: 7 F. 3d 236.
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603 F.2d 732
UNITED STATES of America, Appellee,v.Carl TAYLOR, Appellant.
No. 79-1202.
United States Court of Appeals,Eighth Circuit.
Submitted June 11, 1979.Decided Aug. 7, 1979.Rehearing Denied Sept. 5, 1979.
Alfredo G. Parrish, Des Moines, Iowa, on brief for appellant.
Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, John O. Martin, Special Asst. U. S. Atty., Kansas City, Kan., and Amanda M. Dorr, Asst. U. S. Atty., Des Moines, Iowa, on brief for appellee.
Before GIBSON, Chief Judge, ROSS and HENLEY, Circuit Judges.
ROSS, Circuit Judge.
1
Carl Taylor appeals from his conviction for conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846.
2
On September 5, 1978, a federal grand jury charged Taylor with one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and three counts of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The three substantive counts were later dismissed by the government. He was found guilty of conspiracy and was sentenced to three years imprisonment to be followed by a three year special parole term. Two years earlier, Taylor had pled guilty to one count of delivery of narcotics in state court.
3
On appeal, Taylor contends that the district court1 erred in denying his motions to dismiss the indictment on grounds of double jeopardy and preindictment delay, and in denying his motion for a mistrial as the result of a comment by a witness disclosing defendant's prior criminal activity. We affirm.
I. Double Jeopardy
4
Taylor first alleges that the double jeopardy clause of the fifth amendment prohibited the federal prosecution because it was based, in part, on circumstances leading to his prior state conviction. However, under the double jeopardy clause, a federal prosecution is not barred by a prior state prosecution for offenses arising out of the same conduct. Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). The principle of dual sovereignty recognizes that the same act may constitute separate and distinct offenses against the state and federal governments, punishable by both. United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Rinaldi v. United States, 434 U.S. 22, 28, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977); Bartkus v. Illinois, 359 U.S. 121, 132, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, supra, 359 U.S. at 194, 79 S.Ct. 666; United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922); United States v. Wallace, 578 F.2d 735, 739 (8th Cir. 1978), Cert. denied, 439 U.S. 898, 99 S.Ct. 263, 58 L.Ed.2d 246 (1979).
5
Taylor argues that the dual sovereignty doctrine has been eroded and urges that it be discarded. This court rejected a similar argument2 in Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977), Cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978), once again reaffirming the doctrine's sound basis. Appellant has advanced no sufficient or logical reason for us now to reject the doctrine as invalid.
6
Taylor's double jeopardy argument is without merit for another reason. He has not been twice prosecuted for the "same offense." An unlawful act and the conspiracy to commit such an act are distinct and separate crimes which do not merge into a single punishable offense. Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).
7
Taylor pled guilty to the state offense of delivery of narcotics but under federal law was charged with conspiracy to distribute heroin or to possess heroin with intent to distribute. Appellant was therefore prosecuted for "separate offenses" requiring proof of different facts. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
II. Preindictment Delay
8
Taylor next alleges that the district court erred in denying his motions to dismiss for preindictment delay. The charge against Taylor alleged his membership in a heroin distribution conspiracy which was in existence from January 1975 until the indictments were returned in September 1978. Because evidence of Taylor's membership in the conspiracy focused on his activities from 1975 to 1977, and the indictment against him was not returned until 1978, Taylor claims a prejudicial preindictment delay of approximately one year.
9
A defendant is entitled to dismissal of an indictment where he shows Actual prejudice from an Unreasonable delay on the part of the government. United States v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Stacey, 571 F.2d 440, 443 (8th Cir. 1978). Where actual prejudice is established, the reasons for the delay are balanced against the prejudice shown by the accused. United States v. Lovasco, supra, 431 U.S. at 790, 97 S.Ct. 2044; United States v. Tempesta, 587 F.2d 931, 933 (8th Cir. 1978).
10
Taylor specifically alleges prejudice on the grounds that: (1) government witnesses' memories faded; (2) a criminal investigative report provided to federal investigators by state officials created a "working relationship" between the state and federal government which was designed to gain a tactical advantage over Taylor and harass him; and (3) the delay was unreasonable and unnecessary. He also urges that the district court erred by refusing to grant him an evidentiary hearing on his motions to dismiss.
11
A careful review of the record convinces us that Taylor did not demonstrate any actual prejudice from preindictment delay. The possibility that memories will dim is not in itself sufficient to demonstrate prejudice justifying a dismissal of the indictment. United States v. Marion, 404 U.S. 307, 326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Nor was the mere sharing of lawfully acquired information between the two sovereigns prejudicial. United States v. Johnson, 540 F.2d 954, 960-61 (8th Cir.), Cert. denied, 429 U.S. 1025, 97 S.Ct. 647, 50 L.Ed.2d 628 (1976).
12
Appellant's bare assertions of unreasonable and unnecessary delay are also insufficient to establish actual prejudice. The government asserted that the delay, if any, was necessary to develop the evidence and to identify others in this complicated, three-year conspiracy involving some 34 members. Investigative delay, unlike delay undertaken by the government to gain tactical advantage over the defendant, has consistently been held reasonable and in accordance with due process. United States v. Lovasco, supra, 431 U.S. at 796, 97 S.Ct. 2044; United States v. Hood, 593 F.2d 293, 296 (8th Cir. 1979). We affirm the district court's finding that the government's reasons for the delay were reasonable and in good faith. We conclude that the government acted properly by completing its investigation of the entire drug conspiracy before indicting Taylor as a member of the conspiracy.
13
We also reject appellant's allegations of prejudicial error on the grounds that he was denied an evidentiary hearing. Taylor raised his contentions of preindictment delay twice by written motion3 to dismiss prior to trial. He renewed his motion during the trial both prior to and at the close of all the evidence. He also reargued the issue in his motion for a new trial. Thus, Taylor was given ample opportunity to substantiate and argue his claims of deprivation of due process.
III. Mistrial
14
Appellant's final contention is that the district court erred in denying his motion for a mistrial after a government witness stated that he had purchased heroin from the defendant "over a period of years from '72 through '76." We do not consider this isolated remark sufficiently prejudicial to warrant reversal.
15
The district court struck the testimony upon defendant's objection and admonished the jury to disregard "any matters that (defendant) was involved in in 1972." Jury instructions were also given to disregard any evidence stricken by the court.
16
Appellant contends that these measures were inadequate to overcome the prejudicial effect of the testimony because the court did not request that the jury specifically disregard testimony relating to crimes occurring after 1972 but prior to the date in 1975 when the conspiracy allegedly began. We disagree.
17
The district court "has broad discretion in determining whether claimed improper prejudicial testimony has so tainted the trial as to require a mistrial." United States v. Maestas, 554 F.2d 834, 839 (8th Cir.), Cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977). In the instant case, the district court properly exercised that discretion. Its admonition to the jury to disregard testimony by the witness relating to prior criminal activity by the defendant, when coupled with its cautionary instructions to disregard evidence stricken by the court, was sufficient to cure any error which may have arisen from the introduction of the evidence, especially in view of the strength of the government's case.4 See United States v. Aaron, 553 F.2d 43 (8th Cir. 1977).
18
The judgment of conviction is affirmed.
1
All pretrial proceedings in this prosecution were presented to and ruled on by the district court, the Honorable William C. Hanson, Senior Judge, presiding. This case was tried before the Honorable Donald E. O'Brien, Judge, United States District Court for the Southern District of Iowa
2
Indeed, Taylor's theory of erosion of the law of Bartkus v. Illinois, 359 U.S. 121, 129, 79 S.Ct. 676 (1959), and Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666 (1959), and his reliance on the cases of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), and Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), mirror precisely the petitioner's contentions in Turley v. Wyrick, 554 F.2d 840 (8th Cir. 1977), Cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978). We held there that "nothing in those cases * * * indicates that the Supreme Court no longer adheres to the dual sovereignty doctrine." Id. at 841
3
The second motion to dismiss included a request for a hearing
4
When, as in this case, testimony is merely cumulative in establishing the government's case, it may be considered "harmless beyond reasonable doubt in light of its mere cumulative nature and the prompt and effective action of the District Court." United States v. Aaron, 553 F.2d 43, 46 (8th Cir. 1977)
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147 U.S. 695 (1893)
UNITED STATES
v.
TAYLOR.
No. 795.
Supreme Court of United States.
Submitted January 9, 1893.
Decided March 6, 1893.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TENNESSEE.
*696 Mr. Felix Brannigan and Mr. Solicitor General for appellants.
Mr. George A. King for appellee.
MR. JUSTICE BROWN delivered the opinion of the court.
The government objected to the allowance by the court below of the following items:
1. For taking acknowledgments in criminal cases of defendants and their sureties to appeal bonds. It appears by the petition that these acknowledgments were taken jointly, and under the case of United States v. Ewing, 140 U.S. 142, 146, ¶ 2, but one fee can be allowed for taking the acknowledgment of a defendant and his sureties, at least unless it be made to appear that it was necessary to take them separately. See also United States v. Hall, ante, 691.
2. For certificates of the clerk and seals to copies of orders of the court directing the marshal to pay witnesses and jurors. Charges for copies of orders and certificates thereto are allowable, but the charge for seals is disallowed upon the authority of United States v. Van Duzee, 140 U.S. 169, 174, ¶ 6.
3. Filing orders from the district attorney discharging witnesses from attendance, at ten cents each, $119.80. By Revised Statutes, § 877, "witnesses who are required to attend any term of a Circuit or District Court on the part of the United States, shall be subpnaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney." While it is proper that the clerk should be informed officially by the district attorney of the discharge of witnesses, it is difficult to see why the discharge should be filed. It is a piece of information for the clerk upon which he acts in computing the *697 amount due the witnesses for mileage and attendance, and when this is done the discharge is functus officio. It has accomplished all that it was ever required to do, is not needed as a voucher, and no advantage is gained by cumbering the files of the court with it. The magnitude of this incumbrance may be judged by the fact that the clerk charges for filing in less than two and half years 1198 of these discharges, (243 were filed in a single term,) at a useless expense of $119.80. In United States v. King, ante, 676, the clerk's charges for the payment of a witness aggregated $1.15, not including the affidavit of the witness, or this item for filing the discharge. If these be added, it is made to cost the government $1.40 in clerk's fees to pay off a witness, a tax out of all proportion to the service rendered, or to the usual amount of the witness's compensation. This practice of multiplying fees for the simple service of paying a witness compensation, which may not exceed the amount of a single day's attendance, should not be permitted, and the item in question will be disallowed.
4. There is an additional claim in items 12 and 16 of $95.85 for affidavits of witnesses as to their mileage and attendance. The clerk is entitled to a fee of ten cents for administering the oath to witnesses respecting their mileage and attendance, but there is no reason for preserving the affidavit as a part of the records of the court. This item should be reduced accordingly. It is but just to say that no charge is made for filing these affidavits.
5. Item 9 includes charges for papers entered by the clerk upon the final record of the cases, and disallowed by the Comptroller as forming no proper part of the judgment record, and unnecessarily burdensome to the government. When the practice of a particular State or district requires a judgment record to be made up in each case, of course the clerk is entitled to his fees for services actually and necessarily performed in that connection. United States v. Van Duzee, 140 U.S. 169, 176, ¶ 9. But as to what shall be incorporated in such record, there is no settled practice and some diversity of opinion.
*698 A record is substantially a written history of the proceedings from the beginning to the end of the case, but nothing which is not properly matter of record can be made such by inserting it therein. In several of the States the matters properly incorporated in judgment rolls are enumerated by statute. New York Code of Civil Procedure, § 1237; Wisconsin Code, § 191; California Civ. Code, § 670.
In Mandeville v. Perry, 6 Call, 78, the Court of Appeals of Virginia, in answering the question "what this court will consider as constituting the record of which it is to take notice in cases of common law," says: "I answer, the writ for the purpose of amending by, if necessary, the whole pleadings between the parties. Papers of which a profert is made, or oyer demanded. And such as have been specially submitted to the consideration of the court by a bill of exceptions, a demurrer to evidence, or a special verdict, or are inseparably connected with some paper or evidence so referred to. These, with the several proceedings at the rules or in court, until the rendition of the judgment, constitute the record in any common law suits, and are to be noticed by the court, and no others." Mr. Chitty, in his work upon Criminal Law, says, (1 Chitty Cr. Law, 720,) that "the record in case of felony, states the session of oyer and terminer the commission of the judges the presentment by the oath of the grand jurymen by name the indictment the award of the capias or process to bring in the offender the delivery of the indictment into court the arraignment the plea the issue the award of the jury process the verdict the asking the prisoner why sentence should not be passed on him and judgment of death passed by the judges." Perhaps the most satisfactory definition of a common law record in a criminal case under the American practice is found in McKinney v. People, 7 Illinois, 540, 551, wherein it is said: "In a criminal case, after the caption stating the time and place of holding the court, the record should consist of the indictment properly endorsed, as found by the grand jury; the arraignment of the accused, his plea, the impanelling of the traverse jury, their verdict, and the judgment of the court. This in general is all *699 that the record need state." And in Dyson v. State, 26 Mississippi, 362, 383, it is stated that "the record must affirmatively show those indispensable facts, without which the judgment would be void such as the organization of the court; its jurisdiction of the subject-matter and of the parties; that the cause was made up for trial; that it was submitted to a jury sworn to try it, (if it be a case proper for a jury;) that a verdict was rendered, and judgment awarded."
Mr. Freeman, in his work upon Judgments, section 79, thus summarizes from the authorities "the matters which are not (unless made so by bill of exceptions or by consent, or by order of the court) matters of record," namely: "Matters of evidence, written or oral, including note, bond or mortgage filed in the case, and upon which suit is brought; an agreed statement of facts not in nature of special verdict; all motions, including motions to quash the writ, to amend the pleadings, for extensions of time, for continuances; for bonds, for prosecution, for bills of particulars; pleas stricken from the files, notices of motions, affidavits of claimants; bonds for trial of rights of property, affidavits in relation to conduct of jurors; all affidavits taken during the progress of the cause, memorandum of costs; power of attorney to confess the judgment, and affidavit in relation to the death of the maker thereof; report of judge of proceedings at the trial, reasons for his opinion in rendering judgment or in deciding application for a new trial; rulings of the court upon the admission of evidence; the instructions to the jury; statement of facts made by the judge for the purpose of taking the advice of the appellate court; and the ruling of the court upon an application to strike out a portion of the pleadings."
The extent to which a judgment record should go in its recital of the proceedings depends largely upon the purpose for which it is to be used. If it is designed for use in the review by the appellate court of the rulings of the court below, upon the introduction of testimony, or of the validity of the charge to the jury, it must contain in a bill of exceptions so much of the testimony or charge as is necessary to a clear understanding of the questions involved. But if, *700 upon the other hand, it be designed only for the purpose of preserving a record of the conviction in perpetuam rei memoriam, little more is necessary than to set forth the process and return thereto, the pleadings, journal entries, verdict and judgment. All the authorities agree that, in a criminal case, it should show what the prisoner is charged with, that the court had jurisdiction of the case, that the defendant was duly convicted and the sentence. It may be said, in general, that anything which is not necessary to support the validity of the judgment is, presumptively at least, no part of the record, however material it may have been in the progress of the case. It is entirely clear that it is unnecessary to set forth matters merely incidental to the charge, and which had no immediate bearing upon the result of the case, or of the validity of the judgment. Thus, in Inglee v. Coolidge, 2 Wheat. 363, it was held by this court that the report of the judge who tried the case at nisi prius, containing a statement of the facts, is not to be considered a part of the record. It was formerly held that, even in writs of error to a state court, the opinion of the court below was not a part of the record, (Williams v. Norris, 12 Wheat. 117, 119; Rector v. Ashley, 6 Wall. 142; Gibson v. Chouteau, 8 Wall. 314,) but the inconvenience of this rule became so great that it was subsequently changed, (Murdock v. Memphis, 20 Wall. 590,) and, finally, the eighth rule of this court was so modified, in 1873, as to require a copy of the opinion to be incorporated in the transcript. This court has also held, in Suydam v. Williamson, 20 How, 427, that the evidence and the exceptions thereto constitute no part of the record, unless incorporated in a bill of exceptions signed and sealed by the presiding judge. See also Pomeroy v. Bank of Indiana, 1 Wall. 592.
We have already held, in United States v. King, ante, 676, that, in the absence of a rule requiring them to be incorporated, the proceedings before a commissioner form no part of the record, and we think the same rule applies to affidavits, England v. Gebhardt, 112 U.S. 502, warrants, subpnas, capiases, except the one upon which the arrest was made, but *701 that the other charges included in item 9, including the bonds taken after indictment, captions of terms and days upon which journal entries were made, were properly allowed. We are also of the opinion that the Comptroller cannot prescribe the length of capiases or bonds, or limit the clerk to a certain number of folios. This is a matter to be determined by the practice of the court.
This disposes of all the questions raised upon the assignment of errors, and the judgment of the court below is, therefore,
Reversed, and the case remanded for further proceedings in conformity with this opinion.
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326 N.W.2d 855 (1982)
STATE of North Dakota, Plaintiff and Appellee,
v.
Michael HEGER, Defendant and Appellant.
Cr. Nos. 807, 817.
Supreme Court of North Dakota.
December 1, 1982.
*856 James N. Purdy, State's Atty., Ellendale, for plaintiff and appellee State of N.D.
Robin Huseby, of Sproul, Lenaburg, Fitzner & Walker, Valley City, for defendant and appellant.
VANDE WALLE, Justice.
Michael Heger appealed from judgments of conviction entered by the district court, Barnes County, for the crimes of murder, gross sexual imposition, and burglary. We affirm.
The sole issue presented to us on appeal is whether or not the trial court erred in ultimately finding the defendant, Michael Heger, competent to stand trial.
Heger's competency to stand trial was questioned almost immediately after criminal proceedings were instituted against him. As a result, three evidentiary hearings were held to determine his fitness to proceed to trial.
On April 19, 1979, four days after he was arrested, the county court at defense counsel's request ordered Heger to undergo a mental examination at the State Hospital. Dr. Carbone, superintendent of the North Dakota State Hospital, in a letter to the court dated May 1, 1979, gave the results of the examination and expressed the opinion that Michael Heger was incompetent to stand trial. The State challenged Dr. Carbone's opinion, and consequently a competency hearing was scheduled for June 12, 1979. At the hearing several doctors from the State Hospital, in addition to Dr. Carbone, testified that Heger was incompetent to stand trial. The State presented no expert testimony of Heger's competency, and the county judge found Heger unfit for trial and remanded him to the custody of the State Hospital.
Heger remained at the State Hospital until October 14, 1980, when he was discharged to the Barnes County sheriff following the court's receipt of a letter from Dr. Rashid, clinical director at the State Hospital, informing the court that in the opinion of the State Hospital staff, Michael Heger was then competent to stand trial. This time defense counsel challenged the opinion, and a second competency hearing was scheduled for December 3, 1980. Once again several doctors from the State Hospital testified, but their testimony was that Heger was competent to stand trial;[1] defense counsel presented no expert medical testimony of Heger's incompetency. On the basis of evidence presented at the hearing and from his own personal examination of Heger, the county judge found Heger competent to stand trial.
In February 1981, defense counsel made a motion to the district court to overrule the county court's latest decision that Heger was competent, and in the alternative to order a psychiatric evaluation of Heger to be conducted by someone other than a member of the State Hospital staff. The court initially denied both motions but upon reconsideration granted the motion for an independent psychiatric evaluation.
Dr. Sharbo, a private practitioner and chief of psychiatry at the Neuropsychiatric Institute in Fargo, conducted the court-ordered independent mental examination of Heger. On the basis of his examination and the results of neuropsychological testing performed by Dr. Fischer, a neuropsychologist associated with Dr. Sharbo, Dr. Sharbo formed the opinion that Heger was incompetent to stand trial.
Upon receiving Dr. Sharbo's report on his evaluation of Heger, defense counsel moved the district court for another competency *857 hearing. The court granted the motion, and on October 6, 1981, the third, and final, competency hearing was held. Expert medical testimony was presented by both sides, with the trial judge conducting an informal examination of Heger at the conclusion of the hearing. Michael Heger was found competent by the trial judge and proceeded to trial the following day.
This is the first time a trial court's decision following a hearing on the issue of a defendant's fitness to proceed to trial has been questioned in this court. Among the jurisdictions which have considered the issue, there is no uniformity of opinion regarding such matters as the allocation of the burden of proof in a competency hearing, the standard of proof in a competency hearing, and the standard for reviewing a trial court's decision on competency. Consequently, we approach what is a difficult problem with more than the usual caution and thoughtfulness.
It is well established that a defendant cannot be tried for the commission of an offense if he is incompetent. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). A defendant is incompetent when he neither has (1) "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," nor (2) "a rational as well as factual understanding of the proceedings against him."[2]Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
Once the issue of a defendant's competency to stand trial has been raised, a number of principles and procedures come into play to resolve the issue. At the outset, a defendant is presumed to be competent;[3] but if the trial judge has any reason to doubt a defendant's fitness to proceed, he may order him to have a psychiatric examination. Sec. 12.1-04-06, N.D.C.C. The results of the examination are to be reported to the court in writing and then distributed to the prosecutor and defense counsel. Sec. 12.1-04-07, N.D.C.C. Should there be a dispute concerning the findings of the report, the trial court must hold an evidentiary hearing to decide the defendant's competency. State v. Storbakken, 246 N.W.2d 78 (N.D.1976); Sec. 12.1-04-07, N.D.C.C. At the hearing, evidence regarding a defendant's fitness to stand trial may be presented in the form of lay observations and expert medical testimony. State v. Fischer, 231 N.W.2d 147 (N.D.1975). Furthermore, considering that the issue of a defendant's competency to stand trial is a legal question to be decided by the trier of fact [United States v. Voice, 627 F.2d 138 (8th Cir.1980); State v. Quarrels, 211 Neb. 204, 318 N.W.2d 76 (1982)], it is entirely appropriate for the trial judge to personally conduct an informal examination of the defendant and then to "rely, in part, on his own impressions, observations and conclusions" in deciding whether or not the defendant is competent. See Fischer, supra, 231 N.W.2d at 155.
Focusing our attention on the nature of the evidentiary hearing provided for in Section 12.1-04-07, N.D.C.C., we see that no provision is made for the allocation of a burden of proof on the issue of a defendant's competency. Our research of the point in question shows that it is generally settled who has the burden of proof but not at all settled what the standard of proof is.
*858 We agree with the majority of courts that the prosecution has the burden to establish a defendant's capacity to stand trial. See, e.g., United States v. DiGilio, 538 F.2d 972 (3d Cir.1976), cert. denied 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Placing the burden on the State seems to conform best to the North Dakota procedure for determining competency where the defendant is initially presumed competent until the trial court has reason to doubt the defendant's competency. At that point, where the trial judge has reason to doubt the defendant's competency, it is logical, and fair, in view of the great injustice which would result if an incompetent person were forced to stand trial, to require the State to alleviate the court's doubt, if it can.
What the standard of proof should be in a competency hearing is a more difficult question. A few courts hold that the prosecution has the burden to show beyond a reasonable doubt the defendant's fitness to stand trial. Jolley v. State, 282 Md. 353, 384 A.2d 91 (Md.Ct.App.1978). But it appears the majority of courts that have considered the issue put the burden upon the prosecution to demonstrate the defendant's competency by a preponderance of the evidence only.[4]
In a criminal proceeding there is no question that the prosecution must prove each element of the criminal offense charged beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). But, as the Third Circuit correctly points out in DiGilio, supra, competency to stand trial is not an element of a criminal offense. For that reason we believe it is inappropriate to require the State to show defendant's competency beyond a reasonable doubt. We see no reason to require the State to establish a defendant's competency by more than a preponderance of the evidence. Accordingly, we hold that once a defendant has caused the trial court to doubt his fitness to proceed, the State must show by a preponderance of the evidence that he is competent to stand trial.
Next we decide what standard of review this court should use when considering whether or not a trial court has erred in making its finding on the issue of a defendant's fitness to stand trial.
Whether or not a defendant is competent to stand trial is a question of fact for the trial judge. Voice, supra; United States v. Winn, 577 F.2d 86 (9th Cir.1978); State v. Quarrels, supra. And the trial judge's finding on the issue of competency will not be set aside on review unless it is clearly erroneous. Voice, supra; United States v. Glover, 596 F.2d 857 (9th Cir. 1979); United States v. Hayes, 589 F.2d 811 (5th Cir.), cert. denied 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Caldwell, 543 F.2d 1333 (D.C.Cir. 1974), cert. denied 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); United States ex rel. Bornholdt v. Ternullo, 402 F.Supp. 374, fn. 4, at 377 (S.D.N.Y.1975). A large number of courts say that they will limit their review to an examination of whether or not the trial court abused its discretion in finding the defendant competent, e.g., State v. Crenshaw, 27 Wash.App. 326, 617 P.2d 1041 (1980). Others say that deference is to be accorded the trial court's decision that a defendant is fit to proceed. See State v. Stewart, 596 S.W.2d 758 (Mo.Ct.App.1980). And still others seem to say that their review will consist of an inquiry to see if adequate evidence exists to support the trial court's conclusion of competency. See State v. Holm, 322 N.W.2d 353 (Minn.1982). The difference between these standards of review and the "clearly erroneous" standard is more a difference in phraseology than a difference in substance. We adopt the "clearly erroneous" standard of review; but, however stated, under the facts of the present case, the result is the same.
*859 Bearing in mind that a defendant's fitness to stand trial is measured by his present capacity to understand the proceedings against him and to assist counsel in his own defense, we turn to an examination of the record to see whether or not the trial court's finding of competency was clearly erroneous.
Michael Heger is mentally retarded. The level of his mental retardation defined in terms of intelligence quotient (I.Q.) is generally agreed upon by medical experts on both sides. Before each of the three competency hearings, Heger was tested to determine his I.Q. All three testings showed his verbal I.Q. to be slightly lower than his performance I.Q. His full-scale I.Q., which is a function of verbal and performance I.Q., remained constant at 70. Dr. Sharbo testified that an I.Q. of 80 is at the lowest limit of normal intelligence, and that an I.Q. of 70 is at the upper limit of retardation. Dr. Fischer, who conducted the I.Q. testing on Heger for Dr. Sharbo, reported that Heger's basic reasoning skills were in the mild-to-borderline range of mental retardation, but that Heger had a deficiency in vocabulary skills below what would be expected of a person with his I.Q.
We here make the observation that being mentally retarded is neither a necessary nor sufficient condition for being found incompetent: (1) there are those who are incompetent to stand trial according to the standards set forth in Dusky, but are clearly not mentally retarded; and (2) there are those who are mentally retarded, but are competent to stand trial. The first proposition is fairly obvious; for example, a person of average intelligence who has lost all touch with reality would be mentally ill, not mentally retarded, and he would be incompetent to stand trial. The second proposition was testified to by Dr. Sharbo at the third, and last, competency hearing when he denied that a person with Heger's level of retardation would necessarily be found incompetent to stand trial under the North Dakota competency standard.
At the third, and last, competency hearing, which is the only competency hearing we are concerned with in deciding whether or not the trial court erred in finding Heger competent, there was a definite conflict in medical testimony. Dr. Schmidt was of the opinion that Heger was competent, and Dr. Sharbo was of the opinion that Heger was incompetent.[5]
This dispute between the medical experts centers primarily upon the issue of Heger's ability to think abstractly. Dr. Sharbo explains abstract thought as "the ability to move from immediate concrete items to concepts. As an example, it's the ability to relate the chair and the table and consider them both furniture." It is Dr. Sharbo's position that Heger's ability to think abstractly, to grasp abstract concepts like "evidence," is so severely limited that it prevents him from being able to understand the proceedings against him and to assist counsel in his own defense. Dr. Schmidt, on the other hand, maintains that while it is true that Heger's ability to think abstractly is limited, this limitation would not affect Heger's capacity to understand the proceedings against him and to assist in his own defense so long as the complex concepts which Heger might have difficulty understanding are explained to him in simple language.
It is significant to note that Dr. Fischer's evaluation of Heger, which Dr. Sharbo relied upon in forming his opinion on Heger's competency, appears to be fairly sympathetic with Dr. Schmidt's evaluation. Dr. Fischer states:
"I think the patient's specific disability in word knowledge and word retention *860 might explain why there was a difference of opinion with regard to this patient's mental capacity between the examiners under Dr. Carbone who first saw him and the examiners who evaluated him after he had been in the state hospital for an extended period of time. I think it is possible that when one first converses with him you are struck by his lack of understanding and his apparent incapacity to grasp concepts. Only on further analysis and evaluation do you start to see that it is not that he cannot understand concepts but that he either doesn't know the meaning of the words you are using or he has forgotten their meanings and needs to be reminded. Therefore, on first impression one might think his comprehension is defective beyond his intellectual level but on further analysis one would realize that he is comprehending at a mildly retarded level but just has a specific vocabulary problem....
......
"Therefore, although the patient can reason effectively at the level of a mildly retarded person and can understand concepts and was even able to hold a job without difficulty, nevertheless, unless one converses with this man at the vocabulary level of a 6 year old, you are not going to be able to be assured that he is comprehending what is going on because of his dysnomic or word finding difficulty."[6] [Emphasis added.]
By stating that "unless one converses with this man at the vocabulary level of a 6 year old, you are not going to be assured that he is comprehending what is going on," Dr. Fischer clearly implies, whether he wishes it or not, that Heger is capable of understanding the proceedings against him if they are explained to him in very basic, simple language.
An experienced criminal trial lawyer who taught special education before attending law school testified that in his opinion Heger was not competent to stand trial. He based his opinion, which was the result of several interviews with Heger, upon his observation that Heger could not understand certain legal concepts, concepts which he believed Heger must comprehend before he would be able to understand the legal proceedings against him and assist counsel in his own defense.
We believe a trial attorney's opinion regarding a defendant's ability to understand legal concepts, which are part and parcel of the legal proceedings against him, and to assist counsel in his own defense should be given due consideration by the trial judge in making his decision about a defendant's competency to stand trial. However, just as expert medical testimony is not controlling in the court's determination of competency, neither is expert legal testimony controlling.
The trial judge was faced with conflicting testimony; he conducted his own examination of Heger in an effort to determine whether Heger could or could not understand difficult legal concepts if they were explained to him in simple language. Many of Heger's responses to the trial judge's questioning showed that Heger had the ability to grasp abstract legal concepts when they were explained to him in simple language.[7]
*861 There is no question that the evidence shows Heger's ability to think abstractly is impaired; however, this fact in itself does not require a court to conclude that a defendant is unfit to stand trial. We completely agree with the Ninth Circuit Court's assertion in United States v. Glover, supra, 596 F.2d at 867:
"The fact that a defendant might not understand the proceedings unless they are explained to him in simple language would put an additional burden upon counsel, but certainly does not establish that the defendant is incompetent to stand trial."
It is extremely difficult for trial courts to reach a decision on a defendant's competency to stand trial if the defendant is neither manifestly unable to understand the proceedings against him and to assist in his own defense nor manifestly able to understand the proceedings against him and to assist in his own defense. Competency is not something a person wears like a coat.[8]
Although expert medical testimony is immeasurably helpful to the court in making its decision on a defendant's fitness to stand trial, where there is a conflict in the expert medical testimony, the trial judge's personal observations of the defendant become invaluable to that decision.
Where the trial judge, as in this case, (1) heard extensive expert testimony both for and against a finding of competency, (2) heard testimony from lay persons regarding the defendant's "normal" daily behavior in their presence, and (3) personally conducted a thoughtful, informal examination of the defendant, we cannot say that his finding that the State had shown by at least a preponderance of the evidence that Michael Heger was competent to stand trial was clearly erroneous.
We affirm the judgments of conviction.
ERICKSTAD, C.J., and SAND and PEDERSON, JJ., and BURT L. WILSON, District Judge, concur.
WILSON, District Judge, sitting in place of PAULSON, J., disqualified.
NOTES
[1] It should be pointed out, however, that Dr. Carbone and some of his staff who testified at the first competency hearing no longer worked at the State Hospital; none of the State Hospital staff who testified at the first competency hearing testified at the second competency hearing.
[2] This definition is essentially contained in Section 12.1-04-04, N.D.C.C., the North Dakota statutory prohibition against trying, convicting, or sentencing an incompetent defendant. It states:
"No person who, as a result of mental disease or defect, lacks capacity [(2)] to understand the proceedings against him or [(1)] to assist in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures."
The reason generally given for rules of this sort is that it would be unfair to require a person to defend himself against criminal charges where he has neither the capacity to understand the proceedings against him nor the ability to assist counsel in his defense. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
[3] This presumption fairly follows from the fact that the trial of a defendant will proceed normally upon the assumption that the defendant is competent unless the trial court has reason to doubt the defendant's fitness to proceed. See Section 12.1-04-06, N.D.C.C.
[4] United States v. DiGilio, 538 F.2d 972 (3d Cir.1976). See also United States ex rel. Bornholdt v. Ternullo, 402 F.Supp. 374 (S.D.N.Y. 1975); People v. Carl, 58 A.D.2d 948, 397 N.Y. S.2d 193 (N.Y.App.Div.1977), reversed on other grounds 46 N.Y.2d 806, 413 N.Y.S.2d 916, 386 N.E.2d 828 (1978); People v. Santos, 43 A.D.2d 73, 349 N.Y.S.2d 439 (N.Y.App.Div.1973).
[5] We take note that Dr. Schmidt did not examine Heger just prior to the third competency hearing as did Dr. Sharbo and Dr. Fischer. Although this is certainly a factor to be considered by the trial judge in weighing the evidence, it becomes less significant when it is also brought to notice that the testing performed on Heger by Dr. Sharbo and Dr. Fischer produced basically the same objective data that the State Hospital's testing produced. The difference of opinion between Dr. Sharbo and Dr. Schmidt was essentially the result of a difference in interpretation of the objective data.
[6] However, Dr. Fischer concludes his report to Dr. Sharbo with the statement that,
"[E]ven with training in vocabulary he [Heger] is going to have a significant impairment in his ability to communicate with an attorney, with a jury, with a judge, etc., in order to aid in his own defense and make reasonable decisions that affect the outcome of his trial."
[7] For example:
"BY THE COURT:
. . . . .
"Q. Michael, have you been able to understand basically the questions I have been asking you?
"A. Yes.
"Q. Michael, do you know what it means when I say you have the right to remain silent?
"A. No.
"Q. Do you know what it means if I say to you when I ask you a question you don't have to answer?
"A. Yes."
[8] Although Dr. Sharbo testified that Heger was competent, he, too, recognized in Heger's case that it was not easy to decide the issue of his fitness to stand trial. Dr. Sharbo testified that Heger was an unusual case, and in response to the question why this was so, he answered:
"Because of the subtlety of the findings and the subtlety of the reasons for his not being competent. Generally, these determinations are pretty easy to make. They are black or white. And in this case is gray."
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28 F.3d 1209
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.James Earl HOLSTON, Plaintiff Appellant,v.J. Phillip GRIFFIN; Marvin Sparrow; Susan H. Pollitt;Franklin E. Freeman, Jr., Defendants Appellees.James Earl HOLSTON, Plaintiff Appellant,v.V. Lee BOUNDS; Richard M. Taylor, Jr.; Marvin Sparrow;Franklin Freeman, Secretary; William Dudley, ExecutiveDirector; Jack CARROLL, Assistant Unit Manager; WilfordShields, Superintendent of Hoke Correctional Center; DeloisD. Alston, Lynn C. Phillips, Defendants Appellees.
Nos. 94-6058, 94-6059.
United States Court of Appeals, Fourth Circuit.
Submitted June 23, 1994.Decided July 18, 1994.
Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Malcolm J. Howard, District Judges. (CA-93-785, CA-93-39)
James Earl Holston, appellant Pro Se.
Sylvia Hargett Thibaut, Assistant Attorney General, Raleigh, NC, for appellees.
Before MURNAGHAN and WILKINS, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM:
1
Appellant appeals from the district court's orders* denying relief on his two 42 U.S.C. Sec. 1983 (1988) complaints. Our review of the records and the district court's opinions discloses that these appeals are without merit. Accordingly, we affirm on the reasoning of the district court. Holston v. Griffin, No. CA-93-785; Holston v. Bounds, No. CA-93-39 (E.D.N.C. Dec. 29, 1993 and Jan. 6, 1994). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
*
We consolidated the cases on appeal
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-2031
____________
UNITED STATES OF AMERICA
v.
OSWELL RAY MCGHEE,
a/k/a June,
a/k/a Eliga
Oswell Ray McGhee,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 07-cr-00733-001)
District Judge: Honorable Michael M. Baylson
____________
Submitted Under Third Circuit LAR 34.1(a)
April 16, 2013
Before: AMBRO, HARDIMAN and COWEN, Circuit Judges.
(Filed: April 24, 2013)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Oswell Ray McGhee appeals his judgment of conviction for possession with intent
to distribute cocaine base, cocaine, and marijuana; possession of a firearm in furtherance
of a drug trafficking crime; and possession of a firearm by a felon. We will affirm.
I
In July 2007, during the course of an investigation unrelated to this case,
Philadelphia police obtained a warrant for the arrest of McGhee and a warrant for the
search of a house located at 2525 North Eighth Street in Philadelphia (the Residence).
The police arrested McGhee about two blocks away from the Residence. When booked,
McGhee stated that he lived at the Residence with his mother. The police executed the
search warrant several hours later.
The Residence was a three-bedroom house, with a rear bedroom that was
padlocked shut, a middle bedroom, and a front master bedroom. McGhee‘s mother, his
step-father, and his brother were at the house when the police arrived. The police
informed the family that they were executing a search warrant for an investigation
involving McGhee, and the family purportedly identified the padlocked rear bedroom as
McGhee‘s room. After the conversation, the officers went to the rear bedroom with
McGhee‘s mother. They asked for a key, but were unable to obtain one from any of the
family members, so they forced the door open. Once in the room, police found crack
cocaine, powder cocaine, marijuana, two loaded firearms, $12,791 in small bills, ziploc
bags of various sizes and colors, two boxes of plastic sandwich bags, several scales, and a
2
money counter. The police also found a shoebox of letters that were addressed to Oswell
McGhee. Confident that the room belonged to McGhee, the officers did not dust the
room or the evidence for fingerprints.
The state charges against McGhee were eventually dismissed, and McGhee was
released from custody, although federal charges were subsequently brought against him.
An officer attempted to serve McGhee with an arrest warrant in December 2007 at the
Residence, but McGhee was no longer there. He was not located until January 2010
when he was arrested by local police in Scranton, Pennsylvania, where he had been
passing himself off as ―Elija McGhee.‖ When arrested, McGhee claimed that he had not
been back to the Residence since the police began looking for him in 2007.
Based on the contraband found at the Residence, McGhee was charged with one
count of possession with intent to distribute more than 28 grams of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B); one count of possession with intent to
distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); one count of
possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(D); one count of possession of a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c)(1); and one count of possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1).
At trial, defense counsel sought to persuade the jury that the Government had not
produced enough evidence to establish that the rear room in which the contraband was
3
found was McGhee‘s room. At the time of the search, the police believed that the room
belonged to McGhee because they found a box of letters addressed to McGhee there and
because of the family members‘ identification. The Government encountered two
obstacles, however, in relaying this information to the jury.
First, in the time between issuance of the warrant and McGhee‘s arrest, some of
the evidence that had been seized by the Philadelphia police, including the box of letters,
had been inadvertently destroyed. The District Court permitted Detective Francis Graf,
one of the officers who had conducted the search, to testify that he had discovered the box
of letters addressed to McGhee. The Court instructed the jury at the end of the trial that
they were entitled to infer from the absence of the letters that the letters may not have
been incriminating, but that they were not required to make such an inference.
Second, the Government initially planned to call family members to testify at trial
that the rear room was McGhee‘s. On the morning of trial, however, those family
members asserted their Fifth Amendment privilege against self-incrimination and refused
to testify.
In light of the family members‘ refusal to testify and in light of the fact that their
statements to the police officers upon their initial entry into the house were inadmissible
hearsay, the Government carefully instructed Detective Graf not to testify as to any
statements made by McGhee‘s family during the search. Detective Graf followed these
instructions, and never stated that the family had told him that the rear bedroom was
4
McGhee‘s. Instead, Detective Graf testified that three of McGhee‘s family members
were present when he entered the Residence. He had a conversation with those three as
to why the police were there before going with the other officers and McGhee‘s mother to
the padlocked rear bedroom. The prosecution emphasized this sequence of events in its
opening statement, encouraging the jury to pay close attention to ―how the detectives
actually got to the defendant‘s bedroom.‖ App. 231. The prosecution also mentioned the
conversation in its closing argument. App. 487 (―The police meet with the family. They
explain, they have a conversation. After they do that, the police go upstairs to the rear
bedroom, which is padlocked. No one has a key to the padlock.‖). The prosecutor
explained at a post-trial hearing that she had intended for the jury to infer that the police
officers went directly to the rear bedroom because they were told by the family members
that that room belonged to McGhee. App. 636–37 (―[T]here was a conversation and then
they went directly to this room. That is not impermissible hearsay. That‘s exactly how
that evidence gets into testimony. . . . Nothing got spoken. What got told is a—he had a
conversation. Well, what did you do after that conversation? I went to this bedroom.
The jury is allowed to make an inference from that and they did.‖).
Before closing arguments, defense counsel expressed concern that emphasizing the
aforementioned sequence of events ―assumes and concludes a lot of facts that are not in
evidence, including the conversations with the family,‖ App. 472, and that ―being able to
refer to a conversation had with those individuals sort of gets their testimony in, which it
5
didn‘t come in,‖ App. 475. The Court then discussed with both parties potential curative
instructions. It instructed the jury, without objection, that they should not speculate as to
the knowledge of McGhee‘s family members.
During its deliberations, the jury asked the Court whether the officers had asked to
be directed to McGhee‘s bedroom when they arrived at the house. The Court responded:
[T]here was no testimony about what any family member said during the
search, and the reason there was none is because that testimony would be
inadmissible. . . . So my recollection is that there was no testimony about what
any family member said to the police officers, which doesn‘t exactly answer
your question, but your question implies that if the officers did ask this, that
there was some response. And my recollection is that there was no testimony
about what any family member said. Furthermore, I also put in my instructions
to you that the family members who were present at the house are not available
to testify in this trial. Okay. So you have to decide the case based on the
instructions I gave you.
App. 577–78. The judge gave both parties an opportunity to voice any objections to that
response, but neither party did so.
The jury found McGhee guilty on all counts and McGhee appealed.
II1
McGhee argues that: (1) the District Court erred in admitting evidence of a
conversation that his family had with police officers as non-hearsay; (2) there was
insufficient evidence to support his conviction; and (3) the felon-in-possession statute is
unconstitutional on its face and as applied in this case. We consider each argument in
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
6
turn and find all to be without merit.
A
McGhee argues that the admission of testimony about the conversation between
his family and the officers, combined with the Government‘s comments during its
opening statement and closing argument, violated both the hearsay rule and the
Confrontation Clause of the Constitution. He claims that the instructions given by the
Court were insufficient to correct this error. Defense counsel did not, however, clearly
raise these objections at trial. Federal Rule of Criminal Procedure 51(b) ―requires a
timely and specific objection to evidence erroneously admitted.‖ United States v.
Iglesias, 535 F.3d 150, 158 (3d Cir. 2008) (citing United States v. Moore, 375 F.3d 259,
262 (3d Cir. 2004)) (internal alteration omitted). While ―[c]ompliance with Rule 51 does
not require ‗surgical precision,‘‖ United States v. Rivera, 365 F.3d 213 (3d Cir. 2004) (en
banc) (quoting Moore‘s Fed. Prac. 3d § 51.03), the purported objection must be sufficient
to apprise the District Court of the issue raised. See Puckett v. United States, 556 U.S.
129, 135 (2009); Iglesias, 535 F.3d at 158 (objection must be specific and reference the
correct issue to preserve the issue).
Here, the record demonstrates that defense counsel only vaguely suggested that
introducing testimony about the officers‘ actions after their conversation with McGhee‘s
family could be problematic. She did not object to Detective Graf‘s testimony on direct
examination or when the Government urged the jury to ―listen to how the detectives
7
actually got to the defendant‘s bedroom‖ during its opening statement. When defense
counsel expressed concern that, if the Government referred to the conversation during its
closing argument, it would be encouraging the jury to assume facts that were not in
evidence, the Court discussed possible curative instructions with the parties. It then gave
the agreed-upon instructions without objection from either party. Because defense
counsel‘s statements at trial were insufficient to place the Court on notice as to the claims
that McGhee now raises in this appeal, we will review the prosecution‘s statements and
the admission of Detective Graf‘s testimony for plain error. See Puckett, 556 U.S. at 135;
Iglesias, 535 F.3d at 158.
To establish plain error, McGhee is required to show ―not only that the error
affected the outcome of the trial, but that the error was clear or obvious under current
law.‖ United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007); see Fed. R. Civ. P. 52(b).
Even if these requirements are met, we may reverse, in our discretion, only if we find that
―the error ‗seriously affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.‘‖ Rivas, 493 F.3d at 136 (quoting Johnson v. United States, 520 U.S. 461,
470 (1997)).
Our sister circuits have held that testimony elicited to establish the content of an
out-of-court statement can violate the hearsay rule and Confrontation Clause, even when
it does not reveal the exact statement that was made. Under this line of cases, an officer
cannot, for example, testify about what a conversation with a third party led him to
8
believe. See, e.g., United States v. Reyes, 18 F.3d 65, 67, 69 (2d Cir. 1994). Nor can he
testify that, immediately after a conversation with a third party, he began investigating the
defendant or charged the defendant with the crime—testimony that would strongly
suggest that the third party‘s statements incriminated the defendant. See, e.g., United
States v. Meises, 645 F.3d 5, 18–19, 22 (1st Cir. 2011); Ryan v. Miller, 303 F.3d 231,
241–44, 250–51 (2d Cir. 2002). Here, statements made by the Government during post-
trial arguments clearly show that the prosecution intended for the jury to infer that the
family had identified the rear room as McGhee‘s room, but these arguments were made
after trial, outside the presence of the jury. The actual testimony elicited about the
officers‘ conversation with McGhee‘s family is more benign than the testimony elicited in
other cases addressing this issue. Detective Graf described the sequence of events that
occurred when he entered the house. He did not testify as to beliefs that he had formed as
a result of that conversation, nor did he state that he had gone directly to the room
because of the conversation with the family.2
2
Compare App. 259–60 (―And at that time there was a conversation about why we
were there. And from there, I went to the second floor rear bedroom.‖), with Ryan, 303
F.3d at 241–44, 248–51 (in an attempt to bring out the fact that another suspect had
confessed and implicated the defendant, officers testified that one of the officers had
interviewed the confessing suspect, that something happened during that interview, that
the officer interviewing the defendant learned what had been said during the interview
and told the defendant about this information, and that the officer then immediately read
the defendant his rights); see also Meises, 645 F.3d 18–19, 21–22 (agent emphasized that
a defendant was not a target of his investigation before an interview with a suspect but
was a target of the investigation immediately after that interview); United States v.
Johnston, 127 F.3d 380, 394–96 (5th Cir. 1997) (finding prosecutorial misconduct when
9
Even if Officer Graf‘s testimony, taken in light of the statements made by the
Government during its opening statement and closing argument, did raise hearsay
concerns, those concerns were mitigated by the District Court. The Court instructed the
jury not to speculate as to any knowledge that the family might have had and
reemphasized those instructions when the jury asked whether the officers had requested to
be directed to McGhee‘s bedroom.3 In light of the ambiguity of Officer Graf‘s
statements—and because we assume that juries follow their instructions, see United
States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003)—we cannot find that any error here
was ―clear or obvious.‖ Accordingly, McGhee‘s first argument fails.
B
McGhee next argues that the evidence presented was insufficient to support the
finding that he was in constructive possession of the contraband. ―The burden on a
prosecution elicited testimony from several officers that, after having conversations with
third parties, they began focusing more on certain individuals and activities); Reyes, 18
F.3d at 67 (testimony that, as a result of a conversation, the officer concluded that the
defendant was involved in a criminal enterprise); Hutchins v. Wainwright, 715 F.2d 512,
514–15 (11th Cir. 1983) (officer testified that after a conversation with a confidential
informant, the officer obtained a warrant for the defendant‘s arrest); Favre v. Henderson,
464 F.2d 359, 360–62 (5th Cir. 1972) (prosecution elicited testimony that the police were
seeking the arrest of defendant on the basis of a conversation with a confidential
informant).
3
In his brief, McGhee correctly notes that the District Court‘s opinion on
McGhee‘s motion for a new trial suggested that the jury could have appropriately inferred
that McGhee‘s family members told the officers that the padlocked room belonged to
McGhee, and that it could have relied on this inference in reaching its verdict. Whether
there was plain error in the proceedings below, however, depends on the evidence that
10
defendant who raises a challenge to the sufficiency of the evidence is extremely high.‖
Iglesias, 535 F.3d at 155 (quoting United States v. Lore, 430 F.3d 190, 203-04 (3d Cir.
2005)). In reviewing this claim, ―we must consider the evidence in the light most
favorable to the government and affirm the judgment if there is substantial evidence from
which any rational trier of fact could find guilt beyond a reasonable doubt.‖ Id. (quoting
Lore, 430 F.3d at 204).
To establish that McGhee was in constructive possession of the contraband, the
Government was required to show that he both knew of the contraband and that he had
―dominion and control‖ over it. United States v. Cunningham, 517 F.3d 175, 178 (3d Cir.
2008) (quoting United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992)). Although
dominion and control cannot be established by ―mere proximity to the [contraband], or
mere presence on the property where it is located,‖ United States v. Brown, 3 F.3d 673,
680 (3d Cir. 1993), contraband stored in a room that belonged to McGhee and that was
generally inaccessible to others goes well beyond ―mere proximity.‖
The Government submitted sufficient evidence to support the finding that the
padlocked room belonged to McGhee. McGhee admitted to the police after his arrest that
he lived at the Residence. When the police arrived there, they found McGhee‘s mother,
stepfather, and brother at home. Only one of the three bedrooms in the house was
padlocked, and the police were unable to obtain a key from any of the family members.
was presented to the jury and the instructions that were given at the time of trial.
11
After using force to enter the bedroom, the police found a box of letters that were
addressed to Oswell McGhee at that address. The jurors were informed that they could
draw an adverse inference with respect to the probative value of the letters because the
letters had been destroyed. Because we take the evidence in the light most favorable to
the Government, however, we assume that the jurors did not draw an adverse inference,
and instead relied upon the box of letters in reaching their decision. The jurors were also
entitled to consider the fact that McGhee fled to Scranton and assumed an alias after
federal authorities attempted to arrest him for possession of the contraband. See United
States v. Green, 25 F.3d 206, 210 (3d Cir. 1994); United States v. Miles, 468 F.2d 482,
489–90 (3d Cir. 1972). Thus, based on the evidence presented at trial, a reasonable juror
could have found that McGhee was in constructive possession of the drugs and weapons
found in the rear padlocked room.
C
Finally, McGhee argues that 18 U.S.C. § 922(g)(1), which prohibits possession of
a firearm by a felon, is unconstitutional on its face, as an invalid exercise of Congress‘s
authority under the Constitution‘s Commerce Clause. Alternatively, he argues that it is
unconstitutional as applied in this case because evidence that the firearms were
manufactured outside of Pennsylvania did not establish a sufficient nexus between
McGhee‘s possession of the firearm and interstate commerce. As McGhee
Comments made by the District Court months after the trial do not affect our analysis.
12
acknowledges, these arguments are precluded by our decision in United States v.
Singletary, 268 F.3d 196, 204–05 (3d Cir. 2001).
III
For the foregoing reasons, we will affirm McGhee‘s judgment of conviction.
13
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537 U.S. 1234
HUNTv.UNITED STATES.
No. 02-7150.
Supreme Court of United States.
March 3, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
2
C. A. 7th Cir. Certiorari denied. Reported below: 301 F. 3d 873.
| {
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} |
976 F.2d 742
Foustv.Brown***
NO. 91-3372
United States Court of Appeals,Eleventh Circuit.
Oct 02, 1992
1
Appeal From: M.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case
| {
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} |
819 F.2d 1134
Lacy, Appeal of
86-1746, 86-1765
United States Court of Appeals,Third Circuit.
5/14/87
E.D.Pa.,
Scirica, J.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
655 S.E.2d 835 (2007)
ARMSTRONG
v.
UC LENDING CORP.
No. 499P06-3.
Supreme Court of North Carolina.
December 6, 2007.
Patricia Duffy, Assistant Attorney General, for UC Lending Corp.
The following order has been entered on the motion filed on the 24th day of May 2007 by Plaintiff for judgment with supporting affidavit and documentation in his favor and against appellees:
"Motion Dismissed by order of the Court in conference this the 6th day of December 2007."
| {
"pile_set_name": "FreeLaw"
} |
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