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56 F.Supp. 56 (1944)
BROWN, Boatswain's Mate,
v.
CAIN, Warden.
No. M-1075.
District Court, E. D. Pennsylvania.
June 14, 1944.
*57 *58 R. Paul Lessy, Asst. Dist. Atty., of Chester, Pa., and William R. Toal, First Asst. Dist. Atty., and C. William Kraft, Jr., Dist. Atty., both of Media, Pa., for the State of Pennsylvania.
John Diggins, of Chester, Pa., for relator.
Gerald A. Gleeson, U. S. Atty., and J. Barton Rettew, Jr., Asst. U. S. Atty., both of Philadelphia, Pa., for the Government.
KIRKPATRICK, District Judge.
The relator James H. Brown, a guard, shot and killed a man named Franklin Giddings in the shipyard of the Sun Shipbuilding Dry Dock Co. at Chester, Pennsylvania. He was arrested, indicted by the Grand Jury of Delaware County for murder and was in the custody of the respondent, the warden of the County prison.
He applied for this writ, alleging that he was in custody for an act done in pursuance of a law of the United States, Title 28, Sec. 453, U.S.C.A.
The relator has been since December 21, 1942, an enrolled temporary member of the Coast Guard Reserve, with the rating of Boatswain's Mate, First Class. As such he was a member of the Armed Forces of the United States.
On June 16, 1943, he was on guard duty in the No. 4 yard of the Sun Shipbuilding plant and was at that time in charge of the Coast Guard detail in the area consisting of some 20 enlisted men.
The United States was at war and the Sun Company was engaged in building ships for the government. Brown's duties included suppression of disturbances which might cause damage to machinery and equipment or affect the security of the plant. It follows, and I so find, that any act done by Brown which was reasonably necessary to quell a riot in the area under his charge was done in performance of his duty as a member of the Armed Forces, and hence in pursuance of the law of the United States.
The principles governing the jurisdiction and the discretion of this Court upon habeas corpus proceedings in cases of this kind (specifically cases of government officers charged with killing in the course of making an arrest) may be stated as follows:
The first question is, was the act for which the relator is held, an act done in pursuance of the law of the United States? The answer does not depend upon guilt or innocence of the relator or his amenability to State law had he not been a government officer, but solely upon whether he had authority from the United States to arrest persons guilty of the offense for the commission of which he was trying to make the arrest, whether he had reasonable cause to believe and did honestly believe that the person he shot was guilty of the offense for which he was trying to arrest him, and whether, in attempting to make the arrest he acted within the scope of his authority and used no more force than he honestly and reasonably believed was necessary. Castle v. Lewis, 8 Cir., 254 F. 917. The bare facts that the relator was an officer of the United States authorized to make arrests and shot in the course of making an arrest will not afford him immunity from prosecution under the laws of the State. In re Waite, D.C., 81 F. 359, 363. If he acted wantonly with a criminal intent, then he was not acting in the pursuance of the law of the United States. In re Fair, C.C., 100 F. 149. The inquiry must, therefore, be as to the honesty of the relator's belief that the arrest was justified and that the shooting was reasonably necessary to accomplish it. As in all cases where intent is involved, all the surrounding circumstances must be considered, because if they were such that no reasonable man could believe it necessary to shoot to make the arrest, the relator's testimony as to his motives and belief would have to be disregarded.
The next principle to have in mind is that it is not sufficient that the judge *59 weighing all the testimony comes to the conclusion that the act was in line of duty, necessary and, therefore, in pursuance of the law of the United States. Facts pointing to that conclusion, must be either admitted or uncontradicted or, at least, supported by so great a preponderance of evidence that a reasonable mind construing it can hardly come to any other conclusion. Regardless of the conclusion which the judge himself might reach, if there is a substantial conflict of evidence as to basic or controlling facts the Federal Court should refuse to exercise its discretion to release the relator and should remand him to the custody of the State authorities for trial by the State Court. Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343.
Lastly, the discretion of the Federal Court is limited by the nature of the occasion upon which its power is invoked. Even though it be clearly proved that the act for which the relator is held was the act of a government officer in pursuance of a law of the United States, he should be remanded to the State Court for trial unless the case is one of urgency where the failure to discharge the prisoner will or may substantially delay the enforcement of the laws of the United States, or seriously interfere with the operation of its government or the administration of its affairs. Castle v. Lewis, supra; Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868.
This brings us to the facts of the case. They are covered in detail in answers to requests, and only the essential ones need be stated.
A riot was in progress. A crowd had collected when Brown, properly, had taken into custody a workman who had refused to show his identification badge. That incident had terminated, but the crowd, instead of dispersing, followed Brown and three other coast guards along a road between two buildings of the plant, demanding satisfaction of some kind for what one or two of their leaders, without the slightest justification, insisted was "rough handling" of the man. The crowd was rapidly growing in size and its demeanor was menacing. A number of the men were carrying tools, monkey wrenches and long-bladed electricians' knives, any of which could easily be a deadly weapon. They were, as one witness described, "hollering, whooping and screaming." Their language was foul, abusive and threatening. Altogether it was unquestionably an unruly and potentially dangerous mob.
At a point where another street or lane opened into the road on which the guards were slowly retreating before the crowd, Brown and one of the others made a sort of stand in order to permit a third guard named Hampton, who seemed to be a special object of ill will, to escape. The crowd moved forward beginning to surround the two guards. One of its leaders laid hands on Brown and whirled him around. Others got hold of the other guard's revolver and tried to get it away from him.
Brown had just managed to get himself out of the crowd when someone threw a half brick which struck him in the back of the head and at the same moment he saw Giddings run down the side street and away from him and the crowd. Believing, whether rightly or wrongly, that this was the person who had thrown the brick, Brown called out, "Come back here. I saw you," ordered him to halt, and then fired one or two shots in the air. At the first shot one of the leaders of the crowd shouted: "Let's rush him; the sons-of-bitches only got blanks; let's get them." Giddings continued to run and Brown, after calling to him a third time to halt, fired again, aiming low in order to hit him in the leg. Just at the moment, however, Giddings stumbled and, when hit, was in an almost prone position, so that the bullet striking him in the buttocks, took a course through his abdomen and inflicted a fatal wound.
As bearing upon the necessity of the shooting, Brown's testimony in addition to the circumstances already described, is to be considered. He said: "I was determined to see that the man was apprehended * * *. Because he was the man who committed the first overt act. After he did that other missiles were thrown and in order to quell a riot I have always been instructed to apprehend the leaders. * * * I felt that to apprehend that man was absolutely necessary in order to quell the riot."
I find that the relator, acting in the course of his duty, was trying to make an arrest, that he had reasonable cause to believe and did honestly believe that the arrest was necessary to the performance of his duty in quelling a riot, and that his *60 use of the weapon was reasonably necessary in order to make the arrest.
Brown was standing on a pile of steel or plates when he fired. Whether he could have caught the man by running after him is doubtful, but, had he attempted to do so, he would have been compelled to desert the other guards with the riot in full progress. Careful weighing of consequences and deliberate choice between various possible courses of action in situations such as that in which Brown found himself are impossibilities and not to be required. It is sufficient if he acted in good faith, to the best of his judgment for a proper purpose. Whether he was right or wrong I find as a fact that he did not act wantonly nor with criminal intent.
Though there is disagreement among witnesses called by the relator and the respondent as to many details of the occurrence above described, there is really hardly any conflict of testimony upon the essential points upon which findings of fact have been made. Several of the respondent's witnesses testified that they did not see wrenches and knives brandished by the crowd, although no one denied that many of the men had such tools in their hands. There was also negative testimony from which it might be inferred that the crowd was, if not orderly, at least not disposed to violence. This testimony, however, is largely to the effect that the witness called did not see certain incidents and acts of violence or did not hear certain threats and abusive utterances described by the relator's witnesses. This kind of evidence is not sufficient to create a substantial conflict, particularly if one remembers that the mob consisted of 500 to 600 men crowded in a roadway between two buildings and that many occurrences might not have been seen by everyone. It is not even necessary to find that these witnesses were not telling the truth as to what they themselves saw or heard in order to reach the conclusions which I have reached.
It is highly significant that, among 38 requests for findings of fact presented by the respondent, there is no one which asks the Court to find that there was no riot in progress or that the crowd was orderly or that the guards were not cursed, abused, threatened and laid hold of, or that a brick was not thrown.
From all the evidence no conclusions are possible other than that Brown had every reason to believe that he and the other guards were faced with the duty of putting down a riot of major proportions and that he and the others were in a position of real and immediate danger of life and limb.
The only point at which there is a sharp and entirely irreconcilable conflict of testimony is the question whether Giddings was the person who threw the brick. I make no finding upon this point because I think it is immaterial. Brown undoubtedly thought that he was the man. His conclusion was based upon what he saw and, upon that, he was fully justified in his effort to arrest Giddings. The Courts have said more than once that mistake of judgment does not deprive the relator of the protection to which he is entitled in the performance of his duty and in pursuance of the law of the United States.
The facts in Drury v. Lewis, supra [200 U.S. 1, 26 S.Ct. 230, 50 L.Ed. 343], the case which called forth the ruling that it was for the State Court to resolve conflicts of testimony, present an entirely different picture. In that case, which was a shooting by a soldier in the course of an arrest, at least three witnesses testified squarely that the man who was killed had stopped, had turned around facing his pursuer, had thrown up his hands and said, "I will give up," before the shot was fired. In the present case there is, in fact, remarkable unanimity on the part of the witnesses as to the actual pursuit and shooting of Giddings.
Lastly, I am of the opinion that the case is one in which the interposition of the Federal Court by habeas corpus is fully justified. I shall not attempt to fit it into the exact language of all of the decisions "extraordinary," "peculiar urgency," "of exceptional nature," etc. I have no doubt that a guard in the service of the United States, protecting the plant of a vital war industry, who, in the performance of his duty, does an act for which the State authorities propose to prosecute him, should be held amenable to the law of the United States and to no other.
An order will be entered discharging the relator from the custody of the respondent. Inasmuch as he has already been tried by Naval court-martial and acquitted he will also be discharged from the custody of this Court.
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860 F.Supp. 924 (1994)
Edward McALEER, Administrator of the Estate of James F. McAleer, Hardy Lebel and Joan Lebel, Administrators of the Estate of Thomas Lebel, Plaintiffs,
v.
Traver C. SMITH, Jr., Administrator of the Estate of Stuart A. Finlay, Mark Shirley Portal Litchfield, and Robin Patrick Cecil-Wright d/b/a The China Clipper Society, Berry Brothers and Rudd Ltd. d/b/a Cutty Sark, American Training Association and Lloyds of London, Defendants.
Civ. A. No. 88-0544L.
United States District Court, D. Rhode Island.
August 16, 1994.
*925 *926 Edmund M. Pitts, Brookline, MA, for plaintiffs.
A. Lauriston Parks, III, Hanson, Curran, Parks & Whitman, Providence, RI, Richard H. Pettingell, Pettingell & Regan, Boston, MA, for American Sail Training Assn.
DECISION AND ORDER
LAGUEUX, Chief Judge.
This matter is before the Court for decision following a bench trial. This is the fifth opinion that this Court has published in this case.
Plaintiffs Edward McAleer, administrator of the estate of James F. McAleer, and Hardy and Joan LeBel, administrators of the estate of Thomas LeBel, brought this action against the American Sail Training Association ("ASTA") and others for the alleged wrongful deaths of their decedents, James F. McAleer and Thomas LeBel. Edward McAleer is the brother of James F. McAleer, and Hardy and Joan LeBel are the parents of Thomas LeBel.
ASTA is the only party defending the case at this time. Plaintiffs' claims against ASTA are for damages under the Death on the High Seas Act ("DOHSA"), 46 U.S.C. §§ 761-767,[1] and under the general maritime law for the conscious pain and suffering of their decedents resulting from the alleged negligence of ASTA. See McAleer v. Smith, 791 F.Supp. 923, 925-930 (D.R.I.1992) (denying ASTA's motion for summary judgment on the conscious pain and suffering claims).
I. Background
This suit arises out of the tragic sinking of a 67-year-old tall ship, the auxiliary barque MARQUES, on the high seas 80 miles northeast of Bermuda in the early morning hours of June 3, 1984. At the time of the mishap, the vessel was participating in the much-heralded "Cutty Sark International Tall Ships Race" ("Tall Ships Race") from Bermuda to Halifax, Nova Scotia. Plaintiffs' decedents, James F. McAleer and Thomas LeBel, were sail trainees on the vessel who perished along with Captain Stuart A. Finlay, his wife and 16-month-old son, and 14 of the 23 other persons on board. In short, 19 of the 28 persons on board went down with the vessel. At the time of the loss, the MARQUES was manned by a permanent crew of nine plus the captain and a supplemental crew consisting of two ASTA counsellors and 16 sail trainees (ten recruited by ASTA from the United States, and six recruited by Finlay from Antigua).
Plaintiffs' decedents were on board the MARQUES through an arrangement Mark Shirley Portal Litchfield of the United Kingdom made with defendant ASTA, a non-profit Rhode Island corporation established in 1973 to solicit and supervise sail trainees.[2] ASTA is based in Newport, Rhode Island *927 and has a total membership of approximately 300 people, some two dozen of whom serve on its board of directors. The board carries out general policy oversight. ASTA's day-to-day operations are the responsibility of its executive director, a post held at all times material hereto by George W. Crowninshield. Crowninshield, a retired United States Navy captain, and a pair of clerical workers are the organization's only paid employees. Most of ASTA's work is funneled through numerous volunteers.
ASTA sponsors races and competitions, and also places individuals on deepwater sailing ships for what is called "sail training." Interested persons apply, pay a fee, and are placed aboard ship for a finite period, usually coincident with the duration of a particular race. While aboard, "trainees" assist in the ship's work, learning both by observing and by doing. The program is an effort to provide participants with a unique, hands-on sailing experience.
Litchfield and Robin Patrick Cecil-Wright, also of the United Kingdom, were co-owners of the MARQUES in 1983 and 1984 since they were equal partners in the China Clipper Society ("China Clipper"), a British unincorporated holding company that held title to the MARQUES and her sister vessel, the INCA.[3] China Clipper maintained a promotional office in Newport, Rhode Island from April 1983 to April 1984. The Newport office was established to promote the commercial services of the MARQUES and the INCA, including their use as sail training vessels. To this end, Litchfield, on behalf of China Clipper, negotiated a contract with ASTA whereby ASTA would solicit and process applications for participation in the June 1984 Tall Ships Race which was being organized by ASTA and its British counterpart, the Sail Training Association ("STA").[4]
As a condition to its association with ASTA, China Clipper agreed to abide by various ASTA requirements. These included comprehensive ASTA maintenance and sailing instructions, the presence aboard ship of two unpaid ASTA sailing counsellors to supervise trainees and serve as liaisons between the trainees and the captain, and the provision of liability insurance in stipulated minimum amounts. In the "letter agreement" entered into between ASTA and China Clipper, China Clipper also agreed, through Litchfield, to "provide disciplined, orderly, clean and safe ships for the ASTA cruises."[5]
From the commencement of the contract period on April 16, 1983 until the loss of the MARQUES, ASTA administered the sail training program on behalf of China Clipper.[6] Under the agreement, ASTA promised to use its best efforts to recruit trainees for the Bermuda-to-Halifax voyage of the MARQUES. To this end, ASTA placed advertisements in sailing magazines, distributed literature on college campuses, and provided information to potential trainees at its Newport office. ASTA then processed trainee applications, registrations and payments, forwarding the bulk of the money collected to the owners, while retaining only certain reimbursements and $50 per trainee to cover administrative *928 expenses.[7]
In return for payment of their fees, sail trainees were given the experience of working as crew members on a tall ship. Trainees were assigned to the round-the-clock watch schedule in the same frequency and rotation as the regular crew members, and they were listed on the MARQUES' "race list" as supplemental crew. Even when off watch, trainees were liable to be called to help handle the vessel. As volunteers they were given some input into the particular duties they would perform, but generally the duties were those of the regular crew, including handling ropes and lines, furling sails, helping out in the galley and below deck and performing routine chores.
In April of 1984, ASTA received a "Sail Training Cruise Registration Form" from Hardy LeBel and a "Cruise Application" from Thomas LeBel, seeking passage for Thomas LeBel, a 15-year-old student, aboard the MARQUES during the race from Bermuda to Halifax. Plaintiffs Hardy and Joan LeBel had a family membership in ASTA in 1983 and 1984. ASTA received similar documents the same month from James F. McAleer, a 46-year-old bachelor, seeking passage aboard the MARQUES in the same race. As a result, both Thomas LeBel and James F. McAleer were assigned as sail trainees aboard the MARQUES when it started the race in Bermuda on June 2, 1984.
At the time of the sinking, the MARQUES was a 117-foot, three-masted, wooden square-rigged sailing ship. Her history is interesting. She was originally built as a trading schooner in Valencia, Spain around 1917. She sailed the Mediterranean for many years. In 1928, she was fitted with an engine and a single propeller. It is believed that she was badly damaged during the Spanish Civil War in the 1930's. In 1945, she was largely rebuilt and resumed carrying cargo. In 1958, the ship was described as "a sailing and motor vessel with two masts." In 1960 she was fitted with twin screws and by 1962 was no longer used as a sailing ship.
In 1971, Cecil-Wright found the vessel in Palma, Majorca. He had been looking for a wooden sailing ship for filmmaking and pleasure cruising. She was surveyed by John E. Perryman, a naval architect/surveyor (as he described himself) and refitted and rerigged into a sailing ship again by Cecil-Wright after he purchased the boat in 1972. He rigged the vessel as a Polacca brigatine with a topgallant, topsail and fore course on her fore mast and a gaff rigged main sail and topsail on the main mast. Both the foremast and main mast had three stay sails. There were three deck hatches including the original cargo hatch.
Between 1974 and 1976, the MARQUES was featured in several films. In 1976, she was converted to resemble HMS BEAGLE, the vessel which carried Charles Darwin to the Galapagos Islands, for a BBC filming project. She was re-rigged and refitted as a three-masted barque with topgallants, topsails and courses on the fore and main masts. A mizzen mast was added and a low poop house was constructed for cosmetic purposes. These changes increased the top weight of the vessel. In 1979, while this project was underway, Litchfield joined the endeavor.
In late July 1977, with 17 persons aboard and Cecil-Wright in command, the vessel started her trek to recreate the voyage of Charles Darwin. Litchfield took over as captain in December of 1977. In all, the voyage covered 20,000 miles around South America, through the Straits of Magellan to the Galapagos Islands and back to England through the Panama Canal. In 1978, she did further film work in the United Kingdom and participated in the Tall Ships Race to Oslo with Litchfield at the helm.
In 1979, the MARQUES underwent a five-month refit when a new, lighter but higher poop house was built. During the remainder of 1979, she was engaged in carrying paying parties in and around the coast of the British Isles. In 1980, she spent seven months in the Canary Islands operating two-week natural history cruises.
During the winter of 1981/1982, she was brought to Barbate, Spain to be refitted for a *929 film contract. The fore and main masts were extended by about eight feet to take Royal sails. Stunsails were also added. The film contract fell through and during the summer of 1981 she cruised the Mediterranean where she encountered a serious storm with Litchfield in command. The vessel underwent structural repairs in Barbate from November 1981 to January 1982. During the remainder of 1982, she participated in "Clipper Challenge" races and other one day races out of ports in the United Kingdom carrying school children.
In 1983, the ship sailed to the Canary Islands and then across the Atlantic to Antigua. She spent the winter of 1983-84 there being used for sail training and day cruises before departing in April, 1984 for Puerto Rico and the first leg of the Tall Ships Race to be sailed from San Juan to Bermuda. At all times material hereto, she was of British flag and registry, operating pursuant to certification issued by the British Department of Transport.
James F. McAleer and Thomas LeBel boarded ship on Friday, June 1, 1984 in Hamilton, Bermuda. That evening (the night before the race began), all ten ASTA trainees and the two ASTA counsellors attended an all-hands meeting aboard ship. The 45-minute meeting was conducted by Stuart Finlay, the captain of the MARQUES. Topics covered included the chain of command, duties of the trainees, allocation of the watches, ship functions, and safety matters such as fire and boat drills, abandon ship procedures and the position each person was to muster in the event of an emergency. Attention was drawn to the ship's regulations and where they could be read. After the meeting, the mates showed the trainees their muster positions and explained further details of the ship. The next morning the trainees met at their respective watch stations for a further briefing on the ship's routines.
Ten ships, including the MARQUES, began the race outside the harbor at Hamilton, Bermuda on the afternoon of June 2.[8] The MARQUES crossed the starting line under full sail at approximately 4:00 p.m. The weather was well suited to sailing: bright and clear, with a crisp fifteen-knot wind out of the west southwest and three- to four-foot seas. There was an awkward swell variously described as "confused", "rough" or "lumpy" that was attributed to a cold front that had passed through the previous night. At midnight, the weather remained clear. The wind, which had been steady at 15 to 20 knots, increased to 22 to 27 knots, and the seas were approximately ten feet. The MARQUES was moving at roughly five knots and her speed was increasing.
Toward 4:00 a.m. on June 3, the weather changed. The wind picked up, and a steady downpour began. Suddenly, the rain became fierce, almost torrential, and the wind intensified. The MARQUES was caught in an unforecasted line squall. Without warning, the ship was hit broadside by a gust of wind of hurricane or near hurricane force. The MARQUES slowed and was slammed over on her starboard side. She began taking on water through the deck hatches that were then half submerged. As she filled, she started to settle back upright but was blown back down again. According to survivor John N. Ash, a geologist with the New Jersey Department of Environmental Protection, the MARQUES then plunged bow first, sinking "like a saucer in dishwater" within 30 to 45 seconds after Ash had freed himself from the rigging in which he had become entangled, and righting herself as she went under.[9] Of the 28 persons aboard the MARQUES, 19 went down with the ship. The 9 survivors reached either a rubber zodiac dinghy *930 or a 20-man life raft that had surfaced and inflated.
Following the loss of the MARQUES, the British Secretary of State for Transport called for a formal investigation into the tragedy. An investigation was initiated under the British Merchant Shipping Act with the formation of the Wreck Commission (officially called The Court of Formal Investigation). Richard Stone Q.C., a barrister in admiralty, was designated as judge and he was assisted by two assessors, Captain E.G. Venables (a master mariner) and B.N. Baxter (a naval architect). After extensive presentation of evidence over a period of 64 days between October 14, 1985 and March 23, 1987, the Wreck Commission issued a report setting forth its findings and recommendations on April 23, 1987. The 86-page report, hereafter referred to as the "Wreck Commission Report," concluded that the sinking of the MARQUES was "caused by an unexpected and violent squall, probably in the nature of a down draught superimposed on a line squall, resulting in the severe heeling, down-flooding and sinking" of the vessel. The Commission also concluded that: "[I]t was not the fault of any person or persons that the MARQUES had insufficient stability to resist the said squall...."
In March of 1987, plaintiffs, as administrators of the estates of James F. McAleer and Thomas LeBel, brought this suit in the District Court for the District of Massachusetts against: Traver C. Smith, administrator of the estate of Stuart A. Finlay, the Captain of the MARQUES; alleged owners Mark Litchfield and Robin Cecil-Wright d/b/a the China Clipper Society; Goods Export Ltd. d/b/a the China Clipper Society; Berry Brothers and Rudd, Ltd., the British distiller of Cutty Sark Scotch Whiskey which sponsored the June 1984 Bermuda-to-Halifax race as the "Cutty Sark International Tall Ships Race"; Lloyds of London, the British insurance underwriting society; and ASTA. Plaintiffs sought recovery under the Jones Act, 46 U.S.C.App. § 688, the general maritime law of negligence and unseaworthiness, and the Death on the High Seas Act, 46 U.S.C.App. §§ 761-767, for the personal injuries, conscious pain and suffering, and deaths of their decedents. (Plaintiffs' amended complaint also included several counts of deceit and breach of warranty against some of the defendants.) After a hearing, Judge Walter Jay Skinner of the District of Massachusetts entered an order transferring the case to this Court on September 7, 1988.
As mentioned, ASTA is the only remaining defendant. Defendants Litchfield and Cecil-Wright have been defaulted,[10] defendant Smith and defendant Lloyds of London were granted summary judgment, see McAleer v. Smith, 791 F.Supp. 923 (D.R.I.1992) and 818 F.Supp. 486 (D.R.I.1993), defendant Berry Brothers and Rudd, Ltd. settled, and the complaint against defendant Goods Export was dismissed for lack of personal jurisdiction. See McAleer v. Smith, 715 F.Supp. at 1158-59.
After a bench trial which started on June 21, 1993 and extended over fifteen trial days, the Court took the matter under advisement. The Court has poured over the extensive material submitted for the better part of a year and finally the case is in order for decision.
II. Discussion
A. Did ASTA Owe Trainees a Duty of Care?
In paragraph seven of their Amended Complaint, plaintiffs alleged that ASTA negligently induced their decedents to join the MARQUES "when it knew, or should have known that the vessel was unsafe, manned by an inadequate and untrained crew, and unfit to participate" in the sail training race. Essentially, plaintiffs claim that ASTA should be held liable for any unseaworthiness of the MARQUES or any deficiency in the abilities and activities of its captain and regular crew.
*931 In determining whether ASTA may be held liable for any unseaworthiness or lack of stability on the part of the MARQUES, it is first necessary to examine the relationship of ASTA to the sail trainees. A threshold issue is whether ASTA owed a duty of due care to prospective sail trainees in the selection and approval of the vessels on which they would train. See, e.g., Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).
ASTA has attempted to analogize its role to that of a travel agency. Courts have generally declined to impose liability on travel agents and tour operators for injuries sustained by clients aboard vessels, buses and other modes of transportation or at hotels or other destinations. The courts have usually found that there never existed a relationship which would have given rise to a duty on the part of the travel agent to investigate the safety of instrumentalities over which it had no control or knowledge. See, e.g., Ross v. Trans Nat'l Travel, 1990 WL 79229 (D.Mass. 1990); Lavine v. General Mills, Inc., 519 F.Supp. 332 (N.D.Ga.1981); Connolly v. Samuelson, 671 F.Supp. 1312, 1317 (D.Kan. 1987). See also Wilson v. American Trans. Air, Inc., 874 F.2d 386, 390 (1989), aff'd in part and remanded on other grounds, 916 F.2d 1239 (7th Cir.1990). This is so because the sole function of the travel agent is "to sell and arrange travel tours for those who might wish to purchase them." Lavine, 519 F.Supp. at 337.
ASTA, however, has a more extensive relationship with sail trainees than a travel agent has with a client. In Heath v. American Sail Training Ass'n, 644 F.Supp. 1459, 1470 (D.R.I.1986), Judge Bruce M. Selya (then a district judge) found that "ASTA operated what amounted to a placement service. For a fee, it matched individuals with sailing ships for particular cruises." In addition to being a placement agency for sail trainees, however, ASTA also provided instruction through counsellors and, in this case, actively promoted the vessels and the Tall Ships Race in which they participated. In fact, ASTA co-sponsored the race along with the United Kingdom's STA, collecting and soliciting funds to support its efforts as a sponsor. ASTA also served along with STA on the Race Committee, and the race was conducted pursuant to the "Racing and Sailing Rules" of STA and ASTA. Finally, pursuant to Racing and Sailing Rule 70.(3), ASTA reserved the right to inspect safety conditions aboard the vessels and, indeed, inspected the MARQUES' safety equipment prior to the race.
Given ASTA's extensive relationship with sail trainees, this Court concludes that ASTA owed a duty to sail trainees to exercise due and reasonable care in choosing and approving vessels for sail training to assure that the sail trainees were placed aboard seaworthy, properly manned and safe vessels. Additionally, ASTA owed a duty to exercise reasonable care in the conduct of the Tall Ships Race so as not to increase the risks inherent in sail training.
B. Did ASTA Breach Its Duty of Care?
The question then arises whether ASTA negligently breached its duty of care either in approving the MARQUES as a sail training vessel for the June 1984 Tall Ships Race or in its conduct of the race. Plaintiffs contend that ASTA was negligent in three ways. First, plaintiffs claim ASTA allowed a structurally unsound and unstable vessel such as the MARQUES to be used for sail training. Second, plaintiffs claim ASTA permitted an incompetent master and crew to sail the MARQUES with sail trainees aboard, thus making the vessel unseaworthy. Finally, plaintiffs contend ASTA was negligent in participating with STA as part of the Race Committee in the decision to start the race.
Analysis of the evidence in this case leads this Court to conclude that ASTA was not negligent in any manner.[11]
1. Stability/Structural Integrity of the MARQUES
With respect to the MARQUES' stability and structural soundness, the Court *932 finds that ASTA was reasonable in relying upon the "Load Line Exemption Certificate" (the equivalent of a license to carry passengers) issued by the Department of Transport of the United Kingdom on November 25, 1983.
As explained in the Wreck Commission Report, sail training associations do not have the ability, given their size and resources, to inspect the structural integrity of all the vessels that carry sail trainees.[12] ASTA has a small office staffed by the executive director and two secretaries. It has neither the facilities nor the personnel to conduct marine surveys of the stability, seaworthiness or watertight integrity of sailing vessels. Vessels from as many as 122 countries compete in these races. National regulatory requirements differ and certificates of inspection are often in languages other than English. The sheer administrative task of merely checking the authenticity of certificates would be formidable. If organizers were to assume the responsibility of determining the seaworthiness of the vessel and the adequacy of the crew, they would need to implement an independent system of inspection and certification. Not only is this beyond their means, but it would be a wasteful duplication of the work of national authorities.
As a result, both ASTA and STA necessarily rely upon governmental inspections and certifications. ASTA relies on the United States Coast Guard to assess the seaworthiness of American vessels. As indicated in ASTA's Sail Training Cruise Registration Form, ASTA requires that U.S. "vessels are Coast Guard certified for safety with licensed captains" and that "[F]oreign flag vessels have compatible qualifications." In addition, STA/ASTA Racing and Sailing Rule 71.(2), entitled "Essential Equipment," requires that all vessels competing in the race "comply with the laws of their country of registration and any relevant and applicable Shipping Act or Regulations regarding safety precautions and equipment."
Further, race organizers are not in a position to warrant that owners and regulatory bodies have performed their duties by ensuring that entrants are participating with a seaworthy vessel and a competent crew. Race organizers are entitled to assume, unless they have reason to believe to the contrary, that owners and regulatory bodies have fulfilled their duty of care. To remind participants of this reality, ASTA/STA Racing and Sailing Rule 70.(1), compliance with which is a precondition to entry in the race, expressly states:
The safety of a vessel and her crew is the sole and inescapable responsibility of the Master who must ensure that the vessel is fully found, thoroughly seaworthy and manned by a sufficient number of experienced crew who are physically fit to face heavy weather. He must be satisfied as to the soundness of the vessel....
In addition, ASTA's Sail Training Cruise Registration Form contains the following statement of responsibility by which plaintiffs' decedents agreed to be bound: "I agree to hold harmless ASTA, its Officers and Directors, and the particular ship and its personnel, in case of accident or injury to the below signed participant." This provision further evidences that ASTA warrants neither the certification by any regulatory body nor the ultimate safety of any sail training vessel.
Admiralty has long recognized that the duty of a shipowner to provide a seaworthy vessel is "peculiarly and exclusively the obligation of the owner. It is one he cannot delegate." Seas Shipping Co. v. Sieracki, 328 U.S. 85, 100, 66 S.Ct. 872, 880, 90 L.Ed. 1099 (1946). ASTA/STA Racing and Sailing Rule 70.(1), along with the statement of responsibility in the Sail Training Cruise Registration Form, are clear reminders that the organizers are not relieving owners of their duty.
In this case, the MARQUES was flying the British flag and, therefore, had to be licensed by the British government. To be so licensed, the MARQUES needed to comply with the terms of the Merchant Shipping (Load Line) Act 1967. The Act made it an *933 offense for any ship registered in the United Kingdom, and not exempted under the Act, to proceed to sea without complying with the Act or the rules promulgated thereunder.
For the intended use of sail training beyond coastal waters, the MARQUES fell within the Act, no longer being exempt as a pleasure craft. While a vessel is not required by the Act to comply with particular stability criteria, vessels are required to carry stability data. The furnishing of stability data for the information of the master is a prominent feature of the Act and its related rules. With the granting of an Exemption Certificate, however, the MARQUES would be exempted from the requirement that it carry stability data.
A United Kingdom Load Line Exemption certificate was issued for the MARQUES on November 25, 1983. The Certificate stated that the vessel had been surveyed on June 1, 1983, and that the Certificate was valid until August 31, 1984.
With the issuance of the Load Line Exemption Certificate, ASTA was justifiably satisfied that the British government, through the Department of Transport, had determined that the MARQUES was structurally sound and sufficiently stable to serve as a sail training vessel and to carry passengers.[13] The duty ASTA owed sail trainees to exercise due and reasonable care in choosing and approving vessels for sail training was fulfilled at this point.
While it was not necessary for ASTA to look beyond the certification of seaworthiness by the British Department of Transport, this Court notes that any further investigation on ASTA's part would have shown that the Certificate was granted in part based upon the declaration in October of 1983 by Perryman, as the surveyor and naval architect of the owners, that in his professional opinion the MARQUES possessed adequate stability to enable her to sail on trans-Atlantic voyages.
Normally certification requires that a vessel be opened up and surveyed by a Department of Transport surveyor, including stripping off the hull planks to examine the frames. With the MARQUES, this would have entailed great expense, since the framing and keelson were concealed by tanks and bulkheads constructed of 2- to 2½-inch-thick ferro cement which would have had to be lifted out or more probably broken. To avoid this expense, Litchfield succeeded in procuring an Exemption Certificate based upon interviews with himself and his naval architect/surveyor, Perryman, as well as information from the files and survey reports.
As a precondition to the granting of the Exemption Certificate, Perryman was required to sign a declaration taking responsibility for the condition and seaworthiness of the ship. The declaration stated: "It is my professional opinion that both the MARQUES and the CIUDAD DE INCA are now in such safe and seaworthy condition and possess such adequate stability to enable them to sail on transatlantic voyages and to operate within the following geographic limits ... for the next 2 years." Perryman initially qualified the 2-year period by making it "subject to an inspection of the amidship areas fitted with ferro cement tanks within the next 12 months," but subsequently agreed to a 3-month extension, making the Exemption Certificate valid for 15 months. The Certificate was also issued subject to the following conditions: that the fittings and appliances be maintained in good working order, that a freeboard of not less than 800 mm. measured from the top of the wood deck amidship be maintained, and that not more than 12 passengers be carried at any time.
In addition to the issuance of the Exemption Certificate, other information available to ASTA would reasonably have led to the conclusion that the MARQUES was seaworthy. Both Thomas R. Weschler, a retired United States Navy Vice Admiral and a member of the Executive Committee of ASTA, and Captain George W. Crowninshield, Executive Director of ASTA, were generally aware of the activities and the reputation of the MARQUES and its owners through the publications of China Clipper *934 and input from various sail training devotees. Certainly, the MARQUES' participation in the 1982 "Clipper Challenge," 2½ months of one-day races from ports around the United Kingdom, was reassuring evidence that the vessel was suitable for sail training. Furthermore, ASTA volunteers Philip G. Graf and Donald L. Treworgy had been aboard the MARQUES on previous voyages, some in heavy weather. In a February 15, 1984 letter to Vice-Admiral Weschler and Commodore Henry H. Anderson, Jr., then Chairman of ASTA's Board of Directors, Graf wrote that on a voyage from Plymouth, England to the Canary Islands the vessel had survived "several days of force 8 & 9, and about a day or so of force 10."[14] At trial, Graf testified that the seas on that voyage were between 30 and 40 feet and that the winds were as great as 50 knots with gusts between 55 and 60 knots. Graf noted that the MARQUES had recovered successfully from extreme angles of heel. Graf also testified that he had a conversation with Vice-Admiral Weschler and Commodore Anderson subsequent to his letters in which he told them that in his opinion the MARQUES was seaworthy. ASTA, thus, was aware of information relevant to the MARQUES ability to perform in adverse weather.
It is also clear from the Wreck Commission Report that the MARQUES had made previous trans-Atlantic journeys of which ASTA was likely aware. For her role as the H.M.S. BEAGLE in the 1977 BBC Television production, "The Voyage of Charles Darwin," the MARQUES sailed over 20,000 miles, with winds as high as Force 8 encountered at times. Although there was some leakage which required pumping and repairs in Brazil, reports indicated that the vessel generally stood up well to the trip.
There was also evidence that the MARQUES sailed to the Canary Islands in 1980 to operate natural history cruises and encountered rough weather. Finally, there was evidence that in October 1981, while cruising the Mediterranean, the MARQUES was hit suddenly by a squall of great violence (estimated at Force 12) on the starboard beam. The vessel heeled to an angle of about 40 degrees, putting the bulwark rail one to two feet below water. Litchfield took over the helm and brought her out of this precarious position. ASTA, thus, had knowledge of the MARQUES' ability to brave the rough weather often encountered on the high seas.
At trial, plaintiffs presented extensive stability data developed by Commander William Murray Peterson, a naval architect from South Bristol, Maine, whose sister, Susan Howell, was an ASTA counsellor lost in the sinking of the MARQUES, and Roger Whitney Long, a vice president of Woodin & Marean, Inc., a naval architectural firm. This data suggested that the MARQUES was in the lower spectrum of stability and could pose a risk in certain weather conditions. However, the research which formed the basis of the Woodin & Marean data was not initiated until after the loss of the MARQUES, and even then it was based on questionable assumptions and estimates and not on actual measurements.
The fact remains that no naval architect has ever opined that this vessel was unstable under any accepted standards in the field. Furthermore, as the Wreck Commission Report noted, review of the stability data of the vessel that most resembled the MARQUES at the time indicates that a survey of the MARQUES would not have led to the conclusion that the vessel was unseaworthy. The measure of stability possessed by the MARQUES was not so low as to have resulted in the ship being declared unseaworthy.
It is possible that had the master been provided with proper stability information for the MARQUES, such information might have included a warning that the range of *935 stability and the righting lever at large angles of heel were low. Since a sailing ship's righting moment will vary with the set of the sails and the course steered, a master needs to know as much about his ship as possible, including any limitations in her stability. A vessel may appear comfortable and responsive up to quite large angles of heel, yet be deficient in her range of stability. Had stability information been available for the MARQUES, and had this information indicated that the vessel was in the low range of stability, a prudent officer in charge might have determined that she was carrying too much sail as the wind intensified in the early morning hours of June 3rd. Still, given the reported strength and suddenness of the squall, it is unlikely that the vessels' fate would have been different had she possessed sufficient stability information. The Wreck Commission so concluded and this writer concurs.
Thus, while in retrospect, if the Captain had been provided with the full range of stability data, it may have mandated that the vessel be sailed with a greater degree of caution, this has no impact on ASTA's potential liability. Certainly, it is clear that the MARQUES was not patently unstable when viewed in port or under sail. Therefore, the Woodin & Marean data presented after the fact of loss, and any speculation as to what might have occurred had the master possessed that stability data, can have no impact on the Court's finding that, based on what it knew in the Spring of 1984, ASTA was reasonably justified in approving the MARQUES as a sail training vessel in reliance upon the Exemption Certificate granted by British authorities.
2. Qualifications of the Captain and Other Safety Concerns
ASTA required that the captain of any sail training vessel be properly certified, either by the United States Coast Guard or a similar body. The British Department of Transport issued an "Exemption" certificate on May 30, 1984 identifying those individuals authorized to act as master for the MARQUES. The certificate exempted the MARQUES from the certification requirements of the Merchant Shipping (Certification of Deck Officers) Regulations 1980(c) while authorized individuals were acting as master and mate. Stuart A. Finlay was authorized to act as captain and Dennis Ord was authorized to act as mate. The list of authorized masters and mates was valid until November 30, 1984.
Plaintiffs presented evidence that the copy of the United States Coast Guard license Finlay produced to Litchfield was at variance with the original held by the Coast Guard. The original license, issued in Boston on February 5, 1981, was restricted to vessels of not more than 60 gross tons and was limited to the "waters of the Atlantic Ocean, not more than 100 miles offshore between Great Boars Head, New Hampshire and Cuttyhunk Island, Massachusetts." The copy presented to Captain Jestico, Chief Examiner of Masters and Mates at the British Department of Transport, the official who approved Finlay, did not contain the geographic restrictions.
Captain Jestico testified before the Wreck Commission that he would not have authorized Finlay's inclusion on the approved list had he been aware of the geographic restrictions on Finlay's Coast Guard license. However, it is likely that Finlay would have ultimately been approved because of the testimonials of other mariners about his extensive experience in sailing after a hearing on the subject. In any event, there was no evidence presented from which it could be concluded that ASTA had even a hint that there was some form of misrepresentation concerning Finlay's Coast Guard license or that Finlay was in any way unqualified to sail the MARQUES. To the contrary, Commodore Anderson was aware of Captain Finlay's strong reputation as a yachtsman. Anderson had been a captain or mate in more than six Bermuda races, as well as others in the Pacific and Atlantic Oceans, and had been Commodore of the New York Yacht Club and Chairman of the Americas Cup Races in Newport. He had known Finlay for about ten years, including the years during which Finlay was an officer in the U.S. Navy and when Finlay ran the sailing program at the United States Naval Academy for 4 years. Anderson also knew that Finlay had sailed as a navigator in some Bermuda races, had *936 served on board the INCA on the voyage from Plymouth, England to the Canary Islands, and had served on the MARQUES during the winter months in the Caribbean and ran a sail training school in Antigua. When Anderson learned in the Spring of 1984 that Finlay would be the master of the MARQUES for the upcoming sail races in 1984, he opined that Finlay was reliable and knowledgeable about sailing and, thus, would be a competent person to be in charge of the vessel.
Therefore, the ASTA Board of Directors was justified in relying on the Exemption certificate from the Department of Transport and the crew list supplied by Litchfield as well as Anderson's knowledge of Finlay when the MARQUES was accepted as a sail training vessel with Finlay in command.
a. The Graf Letters
Plaintiffs also attempted to discredit the management of the MARQUES by introducing into evidence two letters written by Philip Graf, an ASTA member from San Francisco who had sailed on the MARQUES under the command of Captain John Adams on a voyage from Plymouth, England to the Canary Islands at the end of 1983. Graf initially wrote Vice-Admiral Weschler of ASTA in February of 1984, stating that he could not recommend the MARQUES for sail training without substantial caveats after his experiences. Graf wrote Weschler again in March of 1984, repeating his misgivings concerning the lack of discipline and order, and the manner in which the ship was managed.
In response to Graf's letters, Vice-Admiral Weschler spoke with Litchfield's manager, Dutton, asking that he convey to Litchfield the message that organizational discipline must improve. The telephone call was followed by a telex to Dutton emphasizing that ASTA expected "disciplined, orderly, safe and clean ships and procedures." In response, Vice-Admiral Weschler was informed that Captain Martin Minter-Kemp was taking over command in Tenerife, Canary Islands. It was reasonable for Weschler to have been reassured by this response, as Minter-Kemp was a person of high reputation in trans-Atlantic sailing and would be unlikely to run an undisciplined ship.
In addition to the communications to Litchfield, Graf's letters prompted ASTA to insert two clauses in the written agreement with China Clipper. First, a clause was inserted whereby China Clipper agreed "to provide disciplined, orderly, clean and safe ships for the ASTA cruises." Secondly, the agreement allowed ASTA to place two counsellors aboard each vessel during the Bermuda-to-Halifax race to assist with the orderly running of the vessels.
The evidence thus establishes that the concerns Graf articulated were remedied prior to the Bermuda-to-Halifax race. It is important to note that Graf's concerns related to the management and not the seaworthiness of the vessel. Whatever faults there might have been with the management of the vessel previously, Minter-Kemp, a well-respected captain, took over command in Tenerife for the trans-Atlantic voyage and Finlay took over for the races. Graf's letters certainly bear no relation to the management of the vessel under Captain Finlay's command. In fact, Graf himself testified that he had a great deal of respect for Captain Finlay and that Finlay had numerous ideas for changes that could be made to improve the situation aboard the MARQUES.
In addition, the Court notes that Donald L. Treworgy, an instructor in navigation at the Mystic (Conn.) Seaport Museum who served as the education officer aboard the MARQUES for the San Juan-to-Bermuda leg of the race, did not voice any concerns for the safety or management of the MARQUES under Finlay's stewardship. In fact, Treworgy, an expert in celestial navigation and astronomy, testified that he considered Finlay to be an observant and careful navigator. He testified that Finlay was an excellent manager and an aware captain who was supportive of his crew.
Furthermore, Captain Crowninshield testified that when he met Treworgy in Bermuda, Treworgy reported that they had had a good trip. (It is to be noted that the MARQUES won the San Juan-to-Bermuda leg of the race based on adjusted times with the same regular *937 crew and six Antiguan sail trainees.) According to Crowninshield, Treworgy did not criticize Finlay, the officers or the crew, nor did he express any concerns about the seaworthiness of the vessel. Crowninshield did recall that Treworgy commented upon the fact that the main hatch was rather large being a converted cargo hatch and that the hatch was left open at night when the weather was good to assist in ventilation of the living quarters. However, it is perfectly reasonable that Crowninshield would have assumed that the hatches would be secured in unfavorable weather. Crowninshield recalled Treworgy remarking that the charts aboard the MARQUES were rather old and that the single side ban radio, which was able to receive but unable to transmit, was being worked on in Bermuda. Crowninshield further testified that on the evening of June 1st he asked Litchfield for a report on the progress of the repairs and was assured in response that all safety matters would be taken care of prior to the start of the race. The Court finds that it was reasonable for Crowninshield to have believed that repairs would be completed prior to the start of the Bermuda-to-Halifax leg.
b. The Unsecured Hatches
Plaintiffs also argue that ASTA should be held liable because the hatches on the MARQUES were not properly secured against the seas, thereby allowing water to enter through the open hatches when she capsized. Since the main hatch was a converted cargo hatch, it was larger than a hatch would normally be on a square rigger. The hatches depended for their watertightness on their being properly secured. Hatch boards and tarpaulins were supplied and they were supposed to be secured with ropes, metal battens and wooden wedges properly hammered home. However, there was evidence that because of discomfort of the crew in the quarters below due to lack of ventilation, the hatches were often left uncovered. On the night the MARQUES sank, the hatches were covered with tarpaulins to exclude the rain, but they were not covered with the wooden hatch covers.
Once the MARQUES had capsized and its sails and rigging were in the water, it could not right itself and, consequently, sank within one or two minutes. It is unknown whether the vessel could have righted itself if all the hatches had been closed and secured. It may be that the unsecured main midship hatch, or the fact that the openings in the bulwarks originally constructed as gun ports and later designated as freeing ports had been permanently sealed, contributed to the rapid sinking and, thus, the number of lives lost. Whether the hatches were secured or unsecured at the time of the capsize is, however, irrelevant to any claim against ASTA, since any negligence with respect to the condition of the hatches during the race is in no way attributable to ASTA.
Timothy O. Fanning, Jr., an ASTA representative on the Race Committee, conducted a safety and equipment inspection of the MARQUES on May 30th, just a few days before the race. This inspection included the life rafts, flares, V.H.F./S.S.B. radio and the pumps. The inspection disclosed lesser issues concerning the life rafts and other safety equipment, which were addressed and corrected prior to the start of the race. For example, the certificate of inspection for the inflatable life rafts was out of date, and telexed confirmation that servicing could be deferred was sought from the Marine Directorate in London. With respect to the hatch covers, it is entirely reasonable that Fanning would have assumed that any hatch covers that might have been open during the inspection in port would be closed prior to or during the race.
Once the race was underway, ASTA exercised no control over the operation of the MARQUES. All persons on board the MARQUES, including the ASTA counsellors, were subject to Captain Finlay's command. Thus, any negligence of the master in leaving hatches open, while possibly attributable to the owners of the vessel, can not be attributed to ASTA.
c. Failure to Require Life Preservers
Plaintiffs also argue that ASTA should be held liable for not requiring Thomas LeBel to wear a life preserver and a *938 safety harness while on deck.[15] Plaintiffs contend that such equipment should have been required given the conditions prevailing immediately prior to the capsize.
Plaintiffs' claim in this regard fails for the same reason as their claim concerning the hatches it ignores the fact that the trainees were subject to Captain Finlay's command and not the command of the ASTA counsellors. The responsibility for determining the need for safety equipment and then effecting appropriate orders rested with the captain, not with ASTA.
In addition, there was evidence that ASTA counsellor Susan Howell, who perished when the vessel sank, warned the trainees to wear life jackets while on deck. Stuart P. Gillespie, Jr., a 50-year-old professor of music who also served as an ASTA counsellor aboard the MARQUES, testified that at midnight on the 3rd Howell requested that all trainees wear life jackets when on deck. There was further evidence that Howell, who was the Chairperson of ASTA's Sail Training and Education Committee, provided Thomas LeBel with a life jacket and told him he should wear it. Gillespie testified that he had a brief conversation with LeBel just prior to the sinking and he remembered observing LeBel with a life jacket. While Clifton H. McMillan, a 16-year-old sail trainee from Texas, testified that he did not recall any instructions to wear life jackets and that he did not think that LeBel had a life jacket on immediately preceding the capsize, in light of Gillespie's testimony, McMillan's testimony only underscores the fact that the ASTA counsellors lacked the authority to require the trainees to do anything.
Therefore, ASTA did all that it was reasonably required to assure the safety of the sail trainees. ASTA placed no trainees aboard the MARQUES until the ship had been issued a Load Line Exemption Certificate by the British Department of Transport and its captain, Stuart Finlay, had been approved by the Department to serve as captain. In addition, ASTA solicited a report from ASTA counsellor Treworgy who had just completed a voyage aboard the MARQUES. Furthermore, ASTA member Fanning visited the MARQUES to inspect the safety equipment which by the Rules the ship was obligated to carry. Finally, ASTA placed two counsellors aboard the vessel to assist in the communication between the sail trainees and Captain Finlay. The ASTA counsellors acted prudently to reduce the risks to which the sail trainees were exposed.
3. The Decision to Start the Race
The final issue of negligence raised by plaintiffs is whether ASTA was negligent in participating in the decision to start the race on June 2, 1984 in Bermuda. Plaintiffs essentially allege that ASTA knew or should have known that the weather posed unreasonable risks for the sail trainees.
First, it should be noted that the race was conducted pursuant to the "Racing and Sailing Rules" of STA and ASTA. These Rules were given to the captains and owners of each vessel entered in the race. Under the subheading "Seaworthiness, Safety Precautions and Equipment Regulations" is Rule 70.(1), entitled "Seaworthiness," which states that "[T]he safety of a vessel and her crew is the sole and inescapable responsibility of the Master...." The ASTA "Vessel Inspection Report" completed by Fanning indicates that this rule was brought to Captain Finlay's attention during Fanning's inspection. Thus, the ultimate responsibility for determining whether to start the race rested with Captain Finlay, given his knowledge of the vessel, his crew, his own capabilities and the available weather information.
With respect to ASTA's consideration of the weather, the Court finds that ASTA was not negligent in its decision to allow the race to start as planned.
a. Available Weather Information
A Captain's Briefing was held at 9:00 a.m. on Friday the 1st of June, the morning before the scheduled start of the race. The meeting was attended by the master and an officer from each ship. STA personnel had arranged for a meteorological officer from *939 the United States Naval Air Station in Bermuda to address the group. The weather briefing included 24-, 48-, and 72-hour forecasts. The forecast was for a slow-moving front (5 to 10 knots) to pass through the Bermuda area by the early morning of Sunday, June 3rd, with associated south westerly winds of Force 4 to Force 6. After passage of the front, it was predicted that the wind would veer to the northwest and reduce slightly.
A weather synopsis and three synoptic charts issued by the Air Station were distributed to each master. The charts were for 8:00 a.m. on the 1st, 2nd and 3rd of June. These charts illustrated a low off Cape Cod moving northeast and an expanding area of high pressure over Florida. The first synoptic chart showed the Gulf Stream well north of Bermuda. While the charts for June 2nd and 3rd showed a curved dotted line well north of Bermuda which may have indicated a secondary trough, none of those who attended the meeting could recall any reference to the line nor any attention drawn to this area of the charts. Nothing was said by the weather expert at the meeting which gave any cause for concern once the front had passed across Bermuda.
Given that the principal concern at the meeting was the cold front which had still to pass, it is not surprising that the dotted line was ignored. Wind arrows on both charts near the dotted line indicated no wind greater than 25 knots (Force 5), giving no warning of severe weather associated with the dotted line. Additionally, the high seas forecast composed by the United States Weather Bureau for the same time did not warn of the trough, nor did it give warning of the area of disturbance to its west.[16] Finally, the weather synopsis handed out with the charts shed no light on the dotted curve, since the synopsis concerned only the area around Bermuda, and the tail of the dotted curve was about 300 miles to the northwest of Bermuda.[17]
As it turned out, the front that passed through on the evening of June 1st was earlier and stronger than expected, with heavy rain and a westerly wind of 25 to 35 knots. During the worst of the weather overnight, there was some discussion amongst Race Committee members as to whether to postpone the start.
On the morning of June 2nd, John Hamilton, the official acting as race director for the STA, telephoned the Bermuda Radio Station, which receives weather information from the United States Naval Air Station, for the latest local area forecast. The forecast confirmed improving conditions with high pressure beginning to move over Bermuda as the cold front moved away to the east. According to Hamilton, there was no mention of winds or gusts of Force 8. At 9:00 a.m. on the 2nd, there was a high seas gale warning forecasting strong winds of 35 to 45 knots in an area immediately east of Bermuda but moving northeast at 20 knots. Since the actual wind was about Force 5, however, and the stronger wind was moving rapidly to the northeast, the forecast did not constitute a threat to the race. The wind would be westerly at 15 to 20 knots, diminishing to 10 to 15 knots with gusts of 20 knots and isolated *940 rain. An additional high seas forecast gave seas of 12 feet or greater for a wide area embracing Bermuda and the route of the race.
Given that the direction of the race was away from any potential area of danger, Hamilton recommended to the Race Committee that the race start. The Committee solicited further weather information while at sea awaiting the start aboard the H.M.C.S. MARGAREE. At this time, there was a westerly wind of Force 4 to 5, and an awkward, confused swell, which was attributed to the cold front that had passed. The weather was fine with scattered clouds. All members of the Race Committee agreed that there was no reason to postpone the start.
No negligence can be attributed to ASTA for its approval of the start of the race. The decision to start the race was made only after consulting the latest weather forecasts. Reliance on the opinion of the meteorological expert from the United States Naval Station given at the Captain's Briefing was justified. Certainly, it was not through any fault on the part of ASTA that the dotted lines on the synoptic charts were not discussed at the briefing. The information supplied at the Captain's Briefing indicated that there would be no problem from winds or high seas. Although winds as great as Force 7 might be expected at some time during the race, this was no cause for concern. Any awkwardness or lumpiness in the sea, while likely to cause seasickness, was not cause to delay the start of the race.
In sum, the Court finds that ASTA exercised due and reasonable care in every respect. No acts or omissions of ASTA subjected the MARQUES or its crew to an unreasonable risk of harm.
C. Proximate Cause of the Sinking
In any event, this Court is satisfied that no act or failure to act on the part of ASTA can be determined to be the proximate cause of the loss of the MARQUES. The proximate cause of the sinking was clearly the unforecasted hurricane force winds that struck the ship broadside. See, e.g., Cobb v. United States, 1979 A.M.C. 1362, 1383 (M.D.Fla.1979) (no judgment may be entered where the proximate cause of plaintiff's accident was a "sneaker wave", not reasonably foreseeable by the officers and crew of the vessel).
Nature itself played a leading role in the MARQUES' dramatic demise. As mariners have found for centuries, the sea contains many perils. This particular accident occurred adjacent to the "Bermuda Triangle," an area of the Atlantic infamous for inclement weather.[18] As happens all too often in this area, the MARQUES was the victim of a sudden, unforecast and unforeseen deterioration of the weather. A line squall with a microburst superimposed on 25- to 30-knot prevailing winds struck the MARQUES without warning and put her on her side. As the Wreck Commission Report concluded at page 45 (emphasis in original); "[I]t was the coincidence of direction of the downdraught [microburst] with the prevailing wind that made the squall that sank the MARQUES so violent. Though this coincidence is rare it is a known phenomenon ...." Any chance of detecting the line squall was lost due to the overcast night, when the normally telltale cumulonimbus cloud was hidden from view. Furthermore, neither the barometer nor the forecasts gave any indication of the worsening weather. In fact, the forecasts indicated that the weather would improve as the low moved to the northeast and the cold front continued to proceed eastwards.
1. Testimony of Survivors
The testimony of the survivors in person, through deposition, as well as before the Wreck Commission leaves no doubt that a sudden and ferocious wind hit the MARQUES. All those aboard the MARQUES described a violent wind. Cliff McMillan, who was below deck at the time, testified that he heard a "howling" noise immediately prior to the knock-down. ASTA trainee William S. Barnhardt, a 24-year-old building contractor who was on deck when the MARQUES was knocked down, testified at deposition *941 that the wind was extremely powerful. Explaining that he had previously witnessed 50 m.p.h. tornado winds destroy a barn in the midwest, Barnhardt estimated the wind speed to be between 85 and 90 m.p.h. (Force 11 to Force 12). ASTA counsellor Gillespie, below deck at the time, likened the sound of the squall hitting to that of an aircraft passing close overhead. John Ash, the geologist from New Hope, Pennsylvania, also compared the sound to that of a jet engine, testifying at deposition that it was the "fiercest" wind he had ever experienced. Climbing on deck immediately after the capsize, Ash observed water blowing in a horizontal direction and estimated that the wind was blowing in excess of 70 or 80 knots. According to the Beaufort Scale, such a wind would be classified as a Force 12 wind, a hurricane force wind. Consistent with Ash's observations, a Force 12 wind causes the air to become filled with sea and foam, and the sea white with driving spray.
Testifying before the Wreck Commission, Dennis Ord, the first mate of the MARQUES and an experienced sailor, described a "tremendous wind" which he estimated to be in the region of Force 11. Also testifying before the Wreck Commission, Phil Sefton, who was located on the poop deck at the time of the incident, estimated the wind to be far stronger than a 55-knot gust he had measured on the voyage to Tenerife, Canary Islands. Sefton described the sea as "milky white ... it was blowing off spray so fast," a description also consistent with Force 11 or 12 winds.
Plaintiffs presented Dr. Frederick Sanders, a retired professor from the Massachusetts Institute of Technology, as an expert meteorologist. He theorized, based on the weather forecasts for the area and observations made from other ships, that the winds where the MARQUES was lost were 25 to 30 knots gusting to not much in excess of 40 knots and that there was no microburst or waterspout (a tornado on water) which caused the capsizing of the vessel. This testimony was of little value to the Court, in view of the credible and consistent evidence secured from all the survivors. The Court has no difficulty in concluding that the MARQUES was hit broadside by a microburst of wind (a localized hurricane) superimposed on a line squall which produced winds of such force that the vessel was blown down on her starboard side with her masts and sails in the water. Water then poured into the deck hatches and she sank within one or two minutes.
2. Experiences of Other Vessels
In addition to the testimony of the survivors concerning the weather, the experiences of the other vessels in the vicinity were probative evidence of the conditions that existed on the night the MARQUES sank. There was extensive evidence that other vessels experienced sudden, unforecast squalls of considerable magnitude that night. The MARQUES, down wind of many of the competitors, was hardly the first vessel to encounter bad weather or to be struck by a violent squall.
At about 10:16 p.m. on June 2nd, about six hours before the MARQUES encountered difficulty, the United States Coast Guard barque EAGLE was surprised by a squall with high winds, estimated by the commanding officer to be 70-plus knots (Force 12). There was evidence that the Eagle suffered a "knock down" and was heavily damaged. Following the incident, the EAGLE's commanding officer reported to the Coast Guard in Washington that the weather messages did not predict squalls of the intensity encountered or the gale force winds associated with them. This was an early incident indicating that the weather conditions were in marked variance with the forecasts.
At 2:30 a.m. on the 3rd, the MAJORITY OF ONE was located about 200 miles to the west of where the MARQUES sank when a menacing cloud with an approximately ¼-mile-wide shaft extending into the sea was seen and identified as a waterspout.
Closer to the time of the sinking, at 4:30 a.m. on June 3rd, the SMUGA CIENA was several miles northeast of where the MARQUES sank when she experienced weather similar to that experienced by the MARQUES. The west-south-westerly wind had increased to about Force 8, when without warning there was a severe squall from the same direction of Force 10 to 11. The squall, *942 which lasted 3 to 4 minutes, caused the yacht to heel over, putting her boom in the sea.
The DONALD SEARLE, which was about 50 miles to the northwest of where the MARQUES sank, also encountered severe squalls. At about 4:00 a.m. on June 3rd, the wind increased to 50 knots or greater (Force 10 to 11), lasting for about ten minutes.
The OUR SVANEN was about 10 miles north northeast of the MARQUES. Vice-Admiral Weschler who was aboard recalled that the wind had steadily strengthened during the night, reaching its peak of Force 7 between 4:00 and 4:30 a.m. with gusts of Force 8 and periodic rain showers.
The NOVIK, only 12 miles to the west southwest of the MARQUES, logged a north westerly gale of Force 8 at 4:00 a.m.
The FLORA was about 24 miles to the west of the MARQUES and logged Force 11 winds at 4:00 a.m. with westerly seas of 8.5 meters plus.
The AZTEC LADY was about 20 miles to the southwest and recorded gusts up to 55 knots (the upper limit of Force 10) during the middle watch.
Finally, the guard ship H.M.C.S. ASSINIBOINE, a Royal Naval Canadian Destroyer, found the night to be worse than forecast, with a near gale and gusts to 35 knots, along with rough seas and very heavy squalls.
The general pattern what emerges from these observations is an area of gale force winds disturbed by scattered sea squalls. As the Wreck Commission Report concluded at page 42: "The confused and unpleasant seas, reported widely, were probably due to the presence of a number of localised [sic] storms in addition to the earlier passage of the front. The experience of the SMUGA CIENA and the MARQUES and to a lesser extent the OUR SVANEN may be evidence of a line squall which can extend over 10 to 25 miles. The FLORA 20 miles to the West and the DONALD SEARLE 50 miles to the North West demonstrate the scattered nature of the squalls experienced at about the same time."
Given the overwhelming testimony of the survivors and the corroborating experiences of other vessels in the area, the Court concludes, as did the Wreck Commission, that the strength of the squall that struck the MARQUES was a Force 11 or 12. In light of the destructive force of such a wind, the proximate cause of the sinking of the MARQUES was clearly an unfortunate and unpredictable encounter with hurricane force winds. This can be classified as an Act of God or a natural disaster. One thing is clear, ASTA is totally without fault in this tragedy.
D. Negligent Misrepresentation
Plaintiffs' have also asserted a negligent misrepresentation claim. However, plaintiffs' negligent misrepresentation theory is not supported by the evidence. While the LeBels, and undoubtedly McAleer, may have relied on certain information that was given to them, that information came from China Clipper.
There was no evidence that ASTA made representations concerning the MARQUES beyond perhaps the specifications for the MARQUES or the information contained in the Sail Training Cruise Registration Form. Crowninshield testified that ASTA provided no other documents containing detailed information about the MARQUES, and that the specifications of the MARQUES were not even mailed by ASTA.
The Sail Training Cruise Registration Form stated that "INCA and MARQUES are owned and operated by the China Clipper Society of Kent, England. The Form further stated that: "[T]hose in charge of the ship and the overall program are encouraging safe participation and operations. U.S. vessels are Coast Guard certified for safety with licensed captains. Foreign flag vessels have compatable [sic] qualifications." Plaintiffs assert these statements as the basis for their negligent misrepresentation claim. However, this Court has already concluded that ASTA exercised reasonable care to assure that the sail trainees were aboard a safe and well-manned vessel. Furthermore, there was no evidence that any of these representations were inaccurate.
*943 E. Agency and Joint Venture Theories
Plaintiffs have also asserted an agency and a joint venture theory of liability against ASTA. However, ASTA was neither the agent of the owners nor in a joint venture with the owners of the vessel. ASTA's function was to match the ships with the sail trainees, provide instruction to the sail trainees and assist in organizing the race. None of these activities makes ASTA the agent of the owners of the MARQUES in any way.
"Agency" has been defined as "the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other to so act." Restatement (Second) Agency § 1(1) (1958). "Thus, the three elements required to show the existence of an agency relationship include (1) a manifestation by the principal that the agent will act for him, (2) acceptance by the agent of the undertaking, and (3) an agreement between the parties that the principal will be in control of the undertaking. It is essential to the relationship that the principal have the right to control the work of the agent, and that the agent act primarily for the benefit of the principal." Lawrence v. Anheuser-Busch, Inc., 523 A.2d 864, 867 (R.I.1987) (citations omitted).
Plaintiffs offered no evidence which would indicate that China Clipper in any way retained the right to control the work of ASTA. In fact, it was ASTA which exercised greater control over the organization of the race. Thus, the facts do not indicate that the relationship between China Clipper and ASTA was that of a principal and agent.
Nor can it be said that ASTA and the owners of the MARQUES were engaged in a joint venture. Under Rhode Island law, a joint venture is an association of two or more persons formed to carry out a single business enterprise for profit. Fireman's Fund Ins. Co. v. E.W. Burman, Inc., 120 R.I. 841, 844, 391 A.2d 99, 101 (1978). Generally, in order for a joint venture to exist, the parties must be bound by express or implied contract providing for: (1) a community of interests, and (2) joint or mutual control, that is, an equal right to direct and govern the undertaking. In addition, the joint venture agreement must provide for a sharing of losses as well as profits. Ross v. Trans Nat'l Travel, 1990 WL 79229 (D.Mass.); 48A C.J.S. Joint Ventures §§ 11-13 (1981).
The evidence in this case does not provide the basis for finding such an arrangement. The relationship that existed between ASTA and the owners of the MARQUES was decidedly different than that required in a joint venture arrangement. While ASTA and China Clipper may have engaged in coordinated promotional activities for their mutual advantage, the record contains no evidence of any agreement to share profits and losses. In fact, ASTA was a non-profit organization. In addition, there is no evidence that ASTA had anything near an equal right to direct the operations of the MARQUES. Thus, the record clearly does not support a joint venture theory.
III. Conclusion
For the reasons stated above, the Court concludes that defendant American Sail Training Association is not liable to plaintiffs under DOHSA or general maritime law. No judgment will enter now. The Court will schedule a hearing after notice to all parties, at which time the Court will determine the amount of the default judgments to be entered for plaintiffs against defendants Litchfield and Cecil-Wright and also order the entry of all other appropriate judgments in the case at that time.
It is so ordered.
NOTES
[1] The Death on the High Seas Act ("DOHSA"), 46 U.S.C.App. § 761 (1988), provides that:
Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas ... the personal representative of the decedent may maintain a suit for damages ... for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.
[2] In 1984 ASTA was a non-business corporation, and in 1985 ASTA became a non-profit corporation.
[3] Early on in this litigation, Cecil-Wright disputed that he was a co-owner of the vessel at the time Litchfield made an agreement with ASTA and at the time of the sinking, but the Court determined that was an issue to be decided at trial, see McAleer v. Smith, 715 F.Supp. 1153, 1158-1159 (D.R.I.1989) and 728 F.Supp. 857 (D.R.I.1990). Subsequently, Cecil-Wright discharged his attorney and later was defaulted in this case and, thus, it is assumed for purposes of this decision that he was an owner along with Litchfield at all times material to this case.
[4] STA was formed in 1956 to organize and run international sail training races. STA and ASTA work closely together as their cooperation in the 1984 Tall Ships program demonstrates.
[5] In addition to making these assurances to ASTA, Litchfield represented in China Clipper's application for entry in the 1984 Tall Ships Race that the MARQUES was seaworthy and in compliance with British nautical safety standards.
[6] Litchfield had attempted to enter into an arrangement with ASTA prior to 1984. In March of 1983, Litchfield visited the United States and met with Vice-Admiral Weschler, Membership Committee Chairman of ASTA. The two discussed the use of China Clipper's vessels for sail training in the United States, but Litchfield was told his ships would need to be licensed by the British government to carry passengers before ASTA would cooperate.
[7] Between the initial application fee and the deposit upon acceptance into the sail training program, each trainee paid a total of $650 to ASTA, $600 of which was remitted to China Clipper.
[8] The INCA did not make it to the starting line because it had suffered damage to its rudder in the squall of the night before in port. Hardy LeBel, Jr., the older brother of Thomas LeBel, was a sail trainee aboard that vessel.
[9] Survivor Stuart Gillespie testified that the MARQUES sank approximately 45 to 60 seconds after being rolled over, while survivor Cliff McMillan told the Bermuda Police that the "whole ordeal of the boat sinking took only about 30 seconds from the time that the boat went on its side to the time it went right under." McMillan later testified at trial that it took between 45 and 60 seconds from the moment of capsize to sinking. In any case, it is clear that the vessel sank within one to two minutes of being blown over.
[10] After this Court denied the motions of Litchfield and Cecil-Wright to dismiss for lack of personal jurisdiction, they discharged their attorneys and became pro se defendants and did not participate in any further proceedings. Obviously, it was their strategy to allow a default judgment to be entered against them and them relitigate the question of jurisdiction in the English courts when plaintiffs go there to recover the judgment.
[11] Having concluded that ASTA was not negligent, this Court need not consider the validity of the exculpatory clause whereby LeBel, through his father as guardian, and McAleer, for himself, agreed to hold ASTA harmless in the event of accident or injury.
[12] ASTA Rule 72 requires certain safety equipment to be carried and, pursuant to ASTA Rule 70.(3), ASTA does conduct inspections to ensure that such equipment is carried and maintained.
[13] While plaintiffs may have criticisms of the British Department of Transport's procedures, the Department of Transport and the owners' naval architect, Perryman, on whom it relied, are not defendants in this case.
[14] On the Beaufort Scale, a Force 4 classification is assigned to wind speeds of 11 to 16 knots; a Force 5 designation is ascribed to winds between 17 and 21 knots; a Force 6 designation is ascribed to winds between 22 and 27 knots; a Force 7 designation is ascribed to winds between 28 and 33 knots; a Force 8 designation is ascribed to winds between 34 and 40 knots; a Force 9 designation is ascribed to winds between 41 and 47 knots; a Force 10 designation is ascribed to winds between 48 and 55 knots; a Force 11 designation is ascribed to winds between 56 and 63 knots; and winds 64 knots or greater are Force 12 (essentially hurricane force).
[15] Since James McAleer was wearing a safety harness and a life preserver when the MARQUES was knocked over, plaintiffs argument concerns only Thomas LeBel.
[16] Since high seas forecasts are directed towards merchant ships which are not greatly affected by localized phenomena, these forecasts report only the principal weather features of the particular area and weather directly associated with those features. Thus, high seas forecasts cover thousands of square miles of ocean and are not sufficiently detailed to forecast a secondary trough or an area of disturbance in its wake, or individual squalls not associated with a principal meteorological feature. While high seas forecasts provide greater detail for areas adjoining the eastern seaboard of the United States, the MARQUES was lost in an area east of the areas of detail.
[17] The synopsis read as follows:
Synoptic Situation for Saturday and Sunday for Bermuda: Slow moving cold front west of Bermuda is moving east at 5 to 10 knots. Will pass through the area by early morning Sunday, with weak high pressure ridging into the area by Sunday afternoon. Possibly a small craft warning may be hoisted by Saturday morning, it will be broadcast over local radio stations.
Forecast for Saturday 2 June 1984: Cloudy with scattered rainshowers and possible isolated thunderstorms. Winds south to southwest 14 to 24 knots. Seas south 6 to 9 feet.... Outlook for Sunday 3 June 1984: Partly cloudy with scattered rainshowers, becoming mostly sunny by afternoon. Winds southwest 14 to 24 knots becoming northwest 10 to 20 knots by afternoon. Seas southwest to west 6 to 9 feet.
[18] It should be noted, however, that the race organizers had chosen a favorable time of year in which to hold the race. It was not the hurricane season and winds of hurricane force are comparatively rare during the month of June.
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738 N.W.2d 225 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Borche TODOROVSKI, Defendant-Appellant.
Docket No. 133933. COA No. 276868.
Supreme Court of Michigan.
September 21, 2007.
On order of the Court, the application for leave to appeal the April 23, 2007 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
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358 B.R. 849 (2007)
In re Keith J. DEVILLIERS, Angela S. Dominguez, Debtors,
In re Joy F. Piazza, Debtor,
In re Joseph F. Chauvin, Cheryl D. Chauvin, Debtors,
In re John J. Fretwell Patricia *850 A. Fretwell, Debtors, and
In re Antionette Guidry, Debtor.
Nos. 06-10415, 06-10491, 06-10554, 06-10566, 06-10638.
United States Bankruptcy Court, E.D. Louisiana.
January 9, 2007.
*851 *852 *853 Fatima A. Skimin, Law Office of Fatima A. Skimin, New Orleans, LA,, Phillip D. Rubins, Metairie, LA, Robert M. Louque, Jr., The Louque Law Firm, L.L.C., Thibodaux, LA, for Debtors.
Reasons for Order partially Sustaining Trustee's Objections to Plan Confirmation
ELIZABETH W. MAGNER, Bankruptcy Judge.
This matter came before the Court on the Objections to Confirmation filed by S.J. Beaulieu, Jr., the standing chapter 13 trustee, who avers that the debtors claim excessive deductions or expenses and that the plans do not contribute all disposable income. This Court initially heard the Objections during each debtor's confirmation hearing, however, as the issues arose due to recent changes to the Bankruptcy Code and would affect the Chapter 13 bar as a whole, the confirmation hearings were continued to a special hearing at the request of all parties in order to address issues of common interest. Counsel and interested members of the bar Were invited to brief and address the, effect of the Bankruptcy Abuse Prevention, and. Consumer Protection Act of 2005 ("BAPCPA") amendments on calculating disposable income and plan payments. After the special hearing was conducted on October 11, 2006, this Court took the cases, under advisement, and after considering the briefs, arguments of counsel, and the relevant law, makes the following findings of fact and conclusions of law.
Jurisdiction
This Court has jurisdiction pursuant to 28 U.S.C. §§ 157(b)(2)(L) and 1334. Venue is appropriate under 28 U.S.C. § 1408(1).
I. Facts
Joseph and Cheryl Chauvin ("Chauvins") have above the median income for debtors residing in the state. On their Form B22C, the Chauvins have, taken deductions for voluntary contributions to a qualified 401(k) retirement account and a deduction based on amounts allowed under the Internal Revenue. Service guidelines[1] ("IRS standard deduction") for ownership expenses of a vehicle. The Chauvins vehicle is unencumbered. Additionally, the Chauvins claim an IRS standard owner ship deduction on another vehicle encumbered by a debt that will be satisfied twenty-three months after confirmation. The Chauvins have also reduced their current monthly income based on the Internal Revenue Service ("IRS") standard deduction for food, clothing and other miscellaneous items. The IRS standard deduction *854 is greater than the amounts the Chauvins have claimed en schedule J for the same expenses. The Chapter 13 Trustee ("Trustee") has objected to all of the, above deductions as unnecessary and unreasonable.
Keith Devilliers and Angela Dominguez ("Devilliers") have above the median income for debtors residing in the state. Initially, the Devilliers listed secured debt as a deduction from current monthly income on their Form B22C. In their proposed plan, the Devilliers committed all disposable income as, calculated on Form B22C to the payment of claimants, including secured creditors. Trustee objected to the plan alleging that this allowed the Devilliers to "double dip" by deducting secured debt payments from current income and then making those payments from the residual disposable income obtained after deduction. At the hearing on this matter, the Devilliers voluntarily amended their plan to increase the proposed plan payment by the amount of secured debt installments. The Devilliers also claimed as an additional deduction, medical expenses. While they have supplied Trustee with support of historical medical expenses, Trustee maintains that documentary support must be supplied to, prove necessity in the future.
John and Patricia Fretwell (`Fretwells") also have above the median income for debtors residing in the state. The Fretwells have taken two IRS standard deductions for the ownership of two unencumbered vehicles, They have also excluded social security income from Form B22C. The Fretwells' Form B22C claims medical expenses in the amount of $200 per month and reduces current monthly income for payroll taxes incurred on both social security and other income. The Fretwells have also reduced their current monthly income based on the IRS, standard deduction for food, clothing and, other miscellaneous items, The IRS standard deduction is greater than; that reflected on schedule J for the same items. Trustee has objected to these deductions or exclusions as unnecessary and unreasonable.
Joy Piazza ("Piazza") has above the median income for debtors residing in this state. On her Form B22C Piazza has also taken an IRS standard deduction for ownership on, an unencumbered vehicle. Additionally, Piazza has claimed an IRS standard deduction for food, clothing and other miscellaneous items. The IRS standard deduction is greater than that reflected on schedule J for the same items. Prior to her bankruptcy filing, Piazza had not contributed to a qualified retirement account. As a result, her Forth B22C does not include a deduction for contributions to a qualified retirement account. However, Piazza's schedule I reflects a deduction for retirement contributions and her plan payment incorporates the same reduction. Trustee has objected to these deductions as unnecessary and unreasonable.
Antionette Guidry ("Guidry") has below the median income for debtors residing in this state. On schedule I Guidry included, as a deduction from income, voluntary contributions to a qualified 401(k) retirement account. Trustee has objected to this deduction as unnecessary and unreasonable.
II. Projected Disposable Income
Trustee's Objections require the Court to interpret § 1325(b)(1)'s directive that debtors commit all projected disposable income to pay claims under plans proposed for confirmation. An analysis of the issues always begins with the applicable statute. 11 U.S.C. § 1325 states:
Except as provided in subsection (b), the court shall confirm a plan [unless]
(b)(1) . . . the trustee or the holder of an allowed unsecured claim objects to *855 the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan
* * * * * *
(B) the plan provides that all of the debtor's projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
* * * * * *
(2) for purposes of this subsection, the term "disposable income" means current monthly income received by the debtor . . . less amounts reasonably necessary to be expended
(A)(i) for the maintenance or support of the debtor or a dependent of the" debtor, or for a domestic support obligation, that first becomes payable after the date the petition is filed;
* * * * * *
(3) Amounts reasonably necessary to be expended under paragraph (2) shall be determined in accordance with subparagraphs (A) and (B) of section 707(b)(2), if "the debtor has current Monthly income, when multiplied by 12, greater than
(A) [the state median income for a family of like size]
Thus the Court's first task is to ascertain if, in accordance with § 1325(b)(1)(B), debtors have proposed to pay their "projected disposable income." This requires the Court to determine what "projected disposable income" means. "Projected disposable income" is not defined under the Code, however, § 1325(b)(2) does instruct that "disposable income" means current monthly income[2] less reasonably necessary expenditures calculated in accordance with § 707(b)(2).
Section 707(b)(2)(ii) explains that a debtor's monthly expenses shall be the applicable monthly expense amounts specified under the National Standards and Local Standards issued by the IRS for the area in which the debtor resides for five specified categories of expenses and debtor's actual monthly expenses for "Other Necessary Expenses" as allowed by IRS guidelines. A few Congressionally sanctioned deductions are also authorized.[3] Under *856 Congressional directive, reasonably necessary health insurance, disability insurance, and health savings account expenses, for the debtor, the spouse of the debtor, or the dependents of the debtor are deducted. The IRS considers deductions for items such as child care expenses, involuntary deductions as a requirement of a job, and accounting or legal fees.
Section 707(b).(2) was substantially modified by the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"). The amendments incorporated a mechanical test designed to determine if a chapter 7 debtor could presumably repay unsecured claimants through a chapter 13 plan (commonly referred to as the "means test").[4] The means test is historical in nature, utilizing both debtor's income, and expenditures over the six months preceding filing as a gauge of his ability to pay unsecured claimants post petition. If a chapter 7 debtor "fails" the means test, the burden shifts, and the debtor must overcome the presumption of abuse, dismiss his case, or agree to a conversion, to chapter 13. Therefore, while the test itself is mechanical, its application is not. The calculations derived from the means test are only presumptive, not definitive, and may be modified by the existence of "special circumstance."[5]
By incorporating § 707(b)(2)'s means test into § 1325 for above the median income debtors, the deductions allowed by its provisions from current monthly income drive the level of disposable income a debtor must commit to confirm a chapter 13 plan. However, to what extent § 707(b)(2) controls this calculation is the issue before the Court.
A. Projected Versus Historical Disposable Income
As an initial matter, every above the median income debtor must file a Form B22C, along with schedules I and J, with the petition for relief.[6] Form B22C arguably calculates a debtor's disposable income after giving effect to the provisions of §§ 101(10A), 541(b)(7), 707(b)(2), 1322(f), and 1325(b)(2) and (3). The form is a compilation, in most cases, of the actual monthly income received and expenses incurred by the debtor for the six months preceding filing. Notably, certain expense categories are not included based on history, but national or local standards set by the IRS,[7] The resultant calculation is an *857 above the median income debtor's "disposable income."
Similarly, schedules I and J are based on a debtor's historical income and expenditures. However, because schedules I and J do not utilize. IRS standard deductions, but the actual amounts incurred, by debtors at the time of filing, they are arguably a more, accurate depiction of the level of expenditure "reasonably necessary" to support debtor and his dependents.
Additionally, while Form B22C requires debtors to report the average of income received, and expenditures paid over a six month period preceding bankruptcy, schedules I and J focus on debtor's current income and expenditures and are therefore less susceptible to historical anomalies. If fluctuations in income have preceded the, filing, the income calculated by Form B22C will necessarily be a figure that is not reflective of the debtor's actual income at confirmation. Similarly, prepetition increases or decreases in the level of expenditure will also affect the average expenditure levels deducted and the resultant disposable income provided by Form B22C. In either case, the calculation of disposable income on Form B22C will not be reflective of what, under previous law, the debtor might be expected to pay based on current circumstance.
To what extent a court should acknowledge this reality is a major source of disagreement. A handful of courts have taken the position that in calculating projected disposable income for confirmation, the figure derived by Form B22C, without adjustment for change or deviation brought by post petition events or prepetition fluctuations in income or expense, is utilized. Reasoning that BAPCPA installed a mechanical test devoid of discretion or even common sense, these courts refuse to modify the calculations derived from, Form B22C regardless of result. See, e.g., In re Barr, 341 B.R. 181 (Bankr.M.D.N.C.2006); In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006); In re Guzman, 345 B.R. 640 (Bankr.E.D.Wis. 2006).
Other jurists have reasoned ' that the calculation of "projected disposable income" differs from that of "disposable income" in that the term "projected" implies a forward, future thinking approach that necessitates consideration of not only the debtor's past history but current circumstance and any anticipated future changes. In re Edmunds, 350 B.R. 636 (Bankr. D.S.C.2006). See also, In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006); In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006); In re Renicker, 342 B.R. 304 (Bankr. W.D.Mo.2006); In re Kibbe, 342 B.R. 411 (Bankr.D.N.H.2006); In re Grady, 343 B.R. 747 (Bankr.N.D.Ga.2006); In re Demonica, 345 B.R. 895 (Bankr.N.D.Ill.2006); In re Johnson, 346 B.R. 256 (Bankr. S.D.Ga.2006); In re Love, 350 B.R. 611 (Bankr.M.D.Ala.2006); In re McPherson, 350 B.R. 38 (Bankr.W.D.Va.2006).
Section 1325(b)(2) dearly defiles "disposable income" based on historical information. A finding that § 1325(b)(1)'s "projected disposable income" is Synonymous with 1325(b)(2)'s "disposable income" may support a ruling that the calculation of projected disposable income is mechanical and without reference to fluctuations in pre-petition expenditures and income, or post petition developments. Two rules of statutory interpretation conflict with this result, however.
The first of these rules requires the Court to give meaning and import to every word in a, statute. Negonsott v. Samuels, 507 U.S. 99, 106, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993), see also, In re Jass, 340 B.R. at 415. Applying this principle, *858 meaning should be given to the term "projected" in § 1325(b)(1)(B). The term "projected" is not defined in the Bankruptcy Code requiring the Court to look to its ordinary meaning. See e.g., Rousey v. Jacoway, 544 U.S. 320, 330, 125 S.Ct. 1561, 161 L.Ed.2d 563 (2005). "Projected" means "[t]o calculate, estimate, or predict (something in the future), based on present data or trends." In re Jass, 340 B.R. at 415 quoting, The American Heritage College Dictionary 1115 (4th ed.2002). Under the ordinary meaning of the word, therefore, "projected' looks to the future.
The second rule of statutory interpretation is that the Court must presume that Congress acts intentionally and purposefully when it includes particular language in one section of a statute but omits it in another. BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994). Applying this rule, this Court finds that Congress intended to modify "disposable income" with the word "projected" in § 1325(b)(1)(B) and intentionally omitted'"projected" when defining "disposable income" in § 1325(b)(2). Therefore, since "projected" modifies "disposable income" in § 1325(b)(1)(B), the Court is required to consider not only a debtor's historical income and expenses, but also his or her anticipated income and expenses when confirming a plan.[8]See, e.g., In re Hardacre, 338 B.R. at 722-723; In re Fuller, 346 B.R. at 482-483. In re Edmunds, 350 B.R. at 646-647; In re Kibbe, 342 B.R. 411 (Bankr.D.N.H.2006) In re Demonica, 345 B.R. at 901-902, In re LaSota, 351 B.R. 56, 58 (Bankr.W.D.N.Y.2006) see also, In re Grady, 343 B.R. 747 (Bankr.N.D.Ga.2006).
The Bankruptcy Code embodies a flexible scheme for the reorganization of debt and the orchestration of a debtor's fresh start.[9] Within its guidelines, debtors are required to make payments to claimants in exchange for which assets are retained and debts are discharged. No statute can anticipate every factual circumstance, and this Court does not believe that Congress intended to attempt such a feat. Instead it set forth a framework within which bankruptcy courts could operate, using a combination of historical and statistical data to derive the level of payment required to confirm a plan. To hold otherwise would create an unworkable system for, both claimant and debtor alike.
The Court is required to interpret the statutes enacted in a way that will not lead to absurd results. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). To interpret these amendments mechanically leads to absurd results. For example, a mechanical construction of the means test would not allow the Court to eliminate, as a deduction from current monthly income, pre-petition payments made on a vehicle disposed of within the six months preceding, filing or surrendered post petition. Similarly, precipitous drops in income or the receipt of nonrecurring income in the days preceding filing would result in a requirement that the debtor make monthly payments otherwise unreasonable given present income levels. Conversely, permanent increases in income pre or post *859 petition might result in lower payments under the plan. Whatever Congress' intention, it falls to the courts to make the amendments it created function within the larger scheme of the (ode. By viewing the historical, calculations of disposable income through, the prism of current circumstance, the Court may both "project" debtor's future disposable income and give effect to the entirety of, the Code's provisions.
1) Applicable Expenditures
a. Are all Historically Generated Expenditures Deductible Post Petition?
Section 1325 provides that the calculation of disposable income only includes deductions to the extent reasonably necessary for the maintenance and support of the debtor and the dependents of the debtor. Section 1325 also instructs that "reasonably necessary" expenses are those, calculated in accordance with § 707(b)(2).[10]
Applying both the IRS framework of deductions and those created by Congress begins with the modifier found in § 707(b)(2)(ii)(I). Only applicable monthly expense amounts are deducted. Thus, only the types of expense allowed by the IRS and applicable to the specific debtor in question are deducted. This is in accord with § 1325's general admonition that only those expenditures reasonably necessary for the support of the debtor or his dependents are deductible. By modifying all deductions by the general requirements of applicability, reasonableness, and necessity, Congress avoided a rigid application of the IRS guidelines. Thus, expenses historically generated, but unnecessary in the future, would not be included in the calculation of projected disposable income.
While some courts have held that every expenditure allowed by the IRS guidelines is available and, appropriate for every debtor regardless of need, this Court does not read the applicable Code provisions so rigidly. The limitations of § 1325 requiring that any expenditure be reasonably necessary, as well as the requirement that the expenditure be applicable to the debtor, guard against the inclusion of an unnecessary expense in the calculation of disposable income simply because that expense might be both necessary and available for some other debtor. Applying this reasoning, this Court would reach a different conclusion than that found in In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C. 2006) and In re Farrar-Johnson, 353 B.R. 224 (Bankr.N.D.Ill.2006).
b. Does Section 1325 Bar a Debtor who did not have an Expense Pre-Petition From Claiming the Expense in the Calculation Projected Disposable income?
In enacting BAPCPA, Congress made certain policy choices regarding the determination of disposable income and allowed expenditures. For example, prior to BAPCPA, few courts would have considered repayments on loans taken from retirement accounts a "reasonable or necessary" expense. Yet under the amendments to § 1325(b)(2)(A)(ii), repayments on loans from retirement accounts are now allowed as a deduction from disposable income on Form B22C.[11] In so providing, Congress evidenced a clear preference for supporting a debtor's repayment to his retirement plan for amounts borrowed, even if it comes at the expense of his other creditors.
There appear to be other policy choices in the enactment of BAPCPA. Congress evidenced a preference for expenditures *860 not allowed under IRS guidelines. Amounts expended for health and disability insurance, as well as funds deposited into a health savings account, are deductible.[12] Educational expenses incurred for private or public primary or secondary school[13] and expenses for the care and support of an elderly, chronically ill or disabled member of debtor's immediate family[14] are also deductible. All of these provisions, added to the Bankruptcy Code as permissible allowed deductions from current monthly income; indicate a policy shift. Expenses historically considered luxuries, as well as those for which the debtor is not legally obligated, can now be considered reasonable and necessary.
A debtor that did not incur these expenses pre-petition does not claim them as deductions on Form B22C. As a historical record, Form B22C only reflects expenses incurred pre-petition. If rigidly applied, reference to Form B22C limits a debtor's ability to deduct, post petition, expenses of a type typically allowed unless they were also incurred pre-petition. This is inconsistent with a finding that the expense is both reasonable and necessary if incurred pre-petition. Is the expense really unreasonable or unnecessary simply because it was first incurred post petition?
For example, a debtor without medical insurance pre-petition would not reflect a deduction for health insurance premiums on Form B22C. By defining disposable income in rigid and historical terms, no adjustment to projected disposable income could be made for a debtor that wished to acquire, post petition, medical insurance coverage. Nor could a debtor adjust Form B22C's calculation of disposable, income to reflect post petition realities, such as the necessity to support a parent recently disabled.
Historical levels of expense do not always reflect the amounts reasonably or necessarily designed to support the debtor and his dependants. Not only does a change in circumstance create the potential for a change in expenditures, but many debtors forego health insurance, repaying a retirement fund loan, and other "optional" expenditures prior to filing bankruptcy in an attempt to satisfy debt payments. If expenses are increasing, or income is decreasing, cuts in living expenses are the only viable means to close the gap. Debtors may scrimp on food or clothing, defer car or household maintenance, elect to forego medical treatment, and neglect to acquire or maintain health or life insurance. A debtor who deferred paying for any of these items would not include them as deductions on Form B22C. Under Trustee's analysis, the debtor would also be subsequently barred from claiming the expenditure in any future determination of disposable income. Yet debtor's pre-petition experience may have confined him to an unreasonable living condition, and it is that very condition from which the debtor may seek relief from the court.
For these reasons, debtor's historical payments cannot be the sole basis for calculating future disposable income. Rather, the type of expenses allowed as deductions on Form B22C may be considered in the calculation of projected disposable income. It is not necessary that the debtor have actually incurred the expense pre-petition in order for it to be considered reasonable and necessary post petition.[15]
*861 By the same token, a debtor's history will play a part in both the determination of reasonableness and necessity. A debtor that survived without a particular expenditure pre-petition will bear the burden of establishing the reasonableness and necessity of the expense post petition. By way of example, if the debtor did not incur expenses for education; care of the chronically ill, elderly, or disabled; charitable expenses; insurance premiums or contributions to health savings accounts prepetition; debtor will bear the burden of establishing their necessity and reasonableness post petition.
Once a determination has been made as to the type of expenses allowed and applicable to the debtor, the expense is deducted from current monthly income based either on the actual amounts incurred or IRS standard deductions. As for the categories of expense deductible by reference to the IRS standard deductions, Trustee argues that the IRS standard deductions are only presumptively reasonable. As such, if Trustee can overcome the prepetition of reasonableness and necessity, the amounts allowed can be reduced.
B. Actual Versus Estimated Expenditures
Trustee urges the Court to modify the calculations based on actual expenditures versus those provided by the IRS standard deductions. Trustee argues that the IRS standard deductions are more often than not greater than the actual expenditures, of local debtors. As a result, Trustee urges the Court to further reduce the calculation of "projected disposable income" to account for the actual levels of expenditure for the categories estimated on Form B22C. In short, Trustee argues that schedules I and J should control over the IRS standard deductions, at least where schedules I and J reflect amounts lower than those provided by the IRS.
1) IRS Standard Deductions Versus Schedules I and J
Bankruptcy Rule 1007(b)(1) requires debtors to file schedules I and J, presumably an accurate reflection of their monthly income and expenses as of the petition date. Trustee argues that since schedule J is an up to date reflection of the actual expenses incurred by debtors, it is a more appropriate guide of what is, both reasonable and necessary for a debtor to support himself and his dependents than the IRS standard deductions. In essence, Trustee maintains that as long as the type of expense is one generally allowed under § 707(b)(2), the calculation of its appropriate level is best left to debtor's actual experience rather than national or local averages.
At confirmation, the Court must "project" debtor's future disposable income.[16] As a projection, the calculation is far from certain and the Bankruptcy Code acknowledges that it may be wrong.[17] Prior to BAPCPA, the determination of disposable income was tied to debtor's existing and actual expenses as set forth on schedule J. The practice was to use these figures as the best guess of future expenditures. But the expenses listed on schedule J are also only estimates of some expenses and *862 minimal predictors of others. Per example, the amounts expended for utilities in any given month will vary and rarely equal the specific amount listed on schedule J.[18] Similarly, a, debtor's historical level of expenditure for insurance may be a fair predictor of the minimum amounts a debtor can expect to pay, but rarely will equal that actually paid as insurance rates usually increase over time. While Trustee maintains that schedule J is a more accurate predictor of debtor's future expenditures, the frequency of modification requests brought before this Court based upon unanticipated changes in financial position belies that conclusion.
Rather than use schedule J, Congress has substituted a afferent method for predicting debtor's anticipated level of expenditure. Instead of schedule J, Congress has directed the utilization of IRS standard deductions.[19] It remains to be seen if this yardstick proves more or less reliable, but there is at least one reason to utilize this method over the debtor's actual and immediate historical experience. The IRS standard deductions provide a uniform and predictable standard for determining the appropriate level and deductibility of fluctuating and widely varying expenditures.
By utilizing the IRS standard deductions, Congress provided, an objective starting point for the calculation of disposable income. Rather than utilize the debtor's experience, Congress standardized both the type and level of expense wallowed for All debtors. To this extent, some of the discretion formerly enjoyed by the bankruptcy courts and chapter 13 trustees may have been circumscribed, but as explained below, that discretion is not completely or permanently lost.
IRS standard deductions provide a ceiling for the applicable expenditures. At least initially, they also supply a floor, providing predictability. The proper level of expenditure is no longer determined by applying a subjective standard of "reason ableness." The trade off statutorily is that the level of deduction for common living expense categories leaves little room for individual circumstance.[20] Nevertheless, the results obtained through this objective process can not be described as absurd.
Since the projection of disposable income is at best an educated guess, the utilization of IRS standard deductions is just as good an indicator of future expense levels as any. Trustee is free to challenge the calculation of disposable income in the future if he believes the debtor's actual experience, over a sustained and reasonable period of time, does not necessitate the full allowance claimed. However, the starting point for all debtors will be the IRS standard deductions regardless of their pre-petition experience.
*863 2) Application of IRS Standard Deductions
a. Food, Clothing and Services, Personal Care Products and Services, and Miscellaneous Expenses
In calculating what expenses are reasonable and necessary for the support of a debtor and his family, Congress has instructed that the IRS standard deduction for food, clothing, and services, household supplies, personal care products and services, and miscellaneous expenditures be utilized.[21] By so doing, Congress has established a threshold amount presumably reasonable under the statute.
Trustee argues that a debtor's actual expenses are often substantially less than those allowed under the IRS standard deductions. As set forth above, the IRS standard deductions are the initial basis for calculating disposable income. If Trustee determines that, for a sustained period of time, a debtor's actual post confirmation expenditures differ substantially from the IRS standard deductions, then Trustee may elect to challenge the calculation of disposable income under § 1329 as inclusive of unnecessary or unreasonable expenses.
b. Deductions for Transportation, Ownership or Lease of a Vehicle
IRS standard deductions establish allowances for the costs associated with the acquisition or lease of a vehicle.[22] Additionally, a separate deduction is provided for the costs associated with the operation and maintenance of the vehicle, or if no vehicle exists, costs associated with other means of transportation. As with the standard allowance for food, clothing and services, household supplies, personal care products and services, and miscellaneous expenditures, the IRS guideline is the starting point to determine the necessary and reasonable level of future expenditure for these categories of expense.
Assuming debtor has a vehicle or needs to avail himself of public transportation, operational expenses or those incurred for public transportation will be based on the IRS standard deduction. Although the allowance may not match the historical experience of the debtor, as explained above, history may not be indicative of actual need. A debtor may have deferred ordinary or extraordinary maintenance on his vehicle pre-petition in an effort to stave off bankruptcy. A vehicle's age may make maintenance unpredictable, skewing the level of expense reflected on schedule J. Whatever the case, the IRS standard, deduction supplies an objective allowance for this purpose. As previously noted, if Trustee determines that, for a sustained period of time, the debtor's actual post confirmation expenditures differ substantially *864 from the IRS, standard deduction, then Trustee may elect challenge, the calculation of disposable income Under § 1329 as inclusive of unnecessary or unreasonable expenses.
As for the IRS standard deduction allowed, for the costs associated acquiring ownership or leasing a vehicle, this deduction is only applicable if a debtor is actually paying for or leasing a vehicle, Unencumbered vehicles do not qualify for the deduction. Although this may discriminate against a debtor who has an unencumbered vehicle, Congress has elected to make this distinction. The deduction is not the equivalent of an allowance for depredation or an invitation for a debtor to "save" for the ultimate replacement of an existing vehicle. Instead, the deduction is designed, to assist with the acquisition of a vehicle on credit.[23]
C. Deductions for Contribution to Qualified Retirement Plans
Contributions to qualified retirement plans are, excluded from disposable income wider § 541(b)(7). Section 541(b)(7) states:
[A]ny amount withheld by, an employer from the wages of employees, or received by an employer from employees, for payment as contributions to
(I) an employee benefit plan that is subject, to title I of the Employee Retirement Income Security Act of 1974 or under an employee benefit plan which is a governmental plan under section 414(d) of the Internal Revenue Code of 1986;
(II) a deferred compensation plan under section 457 of the Internal Revenue Code of 1986; or
(III) a tax-deferred annuity under section 403(b) of the Internal Revenue Code of 1986.
Except that such amount under this subparagraph shall not constitute, disposable income, as defined in section 1325(b)(2).
Thus, mandatory or voluntary contributions to qualified retirement plans are not property of the %State, nor are they considered when calculating disposable income.[24] Trustee concedes that voluntary contributions to a qualified retirement account are not included in the calculation, of disposable income. However, Trustee maintains that the Court may set the level of contributions allowed under a reasonable and necessary standard.
Section 541(b)(7) instructs that contributions to a qualified plan do not constitute disposable income for purposes of § 1325(b)(2). As excluded income, the contributions are not a deduction because they were never included in the first instance.
Further, unlike the provisions of § 707(b)(2) and 1325(b)(2) or (3), *865 § 541(b)(7) does not modify excluded contributions based on reasonableness or necessity. Throughout the other applicable sections of the. Code, every deduction offered is modified by a requirement that the expense be "necessary and reasonable." Yet, § 541(b)(7) omits any reference to this important limitation on the exclusion. Instead, § 541(b)(7) simply declares that the contributions are "not disposable income as defined in section 1325(b)(2)." Although § 1325(b)(2) contemplates, as a general premise, that reasonably necessary expenses for the support and care of the debtor and his dependents are the only deductions allowed, the more specific provisions of § 541(b)(7) control over the general. See, Gaddis v. U.S., 381 F.3d 444, 469 (5th Cir.2004).
The Code simply contains no requirement that contributions to a retirement account be "reasonable or necessary." Perhaps more accurately, Congress has determined that contributions to a qualified retirement account are, by their very nature, reasonable and necessary. By providing for a debtor's eventual retirement, retirement contributions become part of debtor's fresh start.
D. Waiver of Necessary or Reasonable Expenditures
As previously acknowledged, many debtors will forego necessary and reasonable expenditures, pre-petition, in order to make ends meet. Post petition, debtors may waive their, right to deduct certain expenditures entirely or at the levels allowed, in favor of increasing the amounts payable to claimants. While Congress has indicated that certain types of expense are reasonable and necessary, nothing in the BAPCPA amendments requires a debtor to take, advantage of what Congress has offered. A debtor is free to reduce or forego any allowed deduction, in order, to confirm a plan. Similarly, a debtor is always free to include exempt income as an additional contribution to make a plan feasible. While the inclusion of exempt assets or income is less of a concern to the Court than the waiver of allowed expenses, unless the resulting budget is so troubling that it casts doubt on a plan's feasibility, the Court will leave it to the discretion of the debtor as to which expenses he elects to waive and at what level.
E. Social Security Income
Section 101(10A) provides that current monthly income is determined without reference to amounts collected from social security. Trustee argues that this places a significant stream of income beyond the reach of creditors. This is true. However, Congress, in plain and unambiguous language, specifically excluded social security benefits from current monthly income. The result is that they are also excluded in calculating disposable income.[25]
Congress is presumed to know the effect of its acts. See, e.g. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). For above the means test debtors, social security income may reach $24,636.00 for individuals and $49,272.00 for married couples. Unlike an unknown or unanticipated change in income, social security benefits are both predictable and certain. It appears that Congress, through BAPCPA, effected a policy decision that regardless of income level, a debtor's social security benefits would be protected from creditor interests. The rationale for this treatment, *866 lies in the exempt nature of the benefits themselves.
Generally, an individual's social security benefits are exempt from garnishment or seizure.[26] Despite federal exemption, prior to BAPCPA's enactment, some bankruptcy courts held that social security income was to be included in the calculation of disposable income. See, e.g., In re Hagel, 184 B.R. 793 (9th Cir. BAP 1995) Now under the provisions of BAPCPA, Congress has provided an, unambiguous directive that social security benefits are not considered in calculating disposable income and are therefore unavailable to pay claims generally.
The exclusion of social security benefits from disposable income might appear counter intuitive at first. However, because creditors had no right to seize these benefits pre-petition, their exclusion from disposable income post petition is not a drastic change in a creditor's position. Decisions regarding credit advances could not, or perhaps should not, have been based on the existence of social security income. As a result, their, exclusion leaves creditors in no worse a position than existed pre-petition, with two important exceptions.
While the language of 42 U.S.C.A. § 407(a) exempting benefits from seizure is extremely broad, it does have two important exceptions. 28 U.S.C.A. § 3402(p)(1) provides that federal payroll taxes incurred as a result of social security benefits are payable from those benefits. Additionally, 42 U.S.C.A. § 405(j) allows the Social Security Administration to pay benefits directly to a representative payee if done for the benefit of the individual recipient. Typical examples of this exception allow the payment of benefits to a hospital caring for the individual. See, e.g., Crytes v. Schafer, 743 F.Supp. 677 (E.D.Mo.1990), aff'd in part, King v. Schafer, 940 F.2d 1182 (8th Cir.1991): As a result, while the benefits attributable to social security are excluded from the calculation of disposable income, both the payroll taxes incurred as a result of their payment, as well as debtor's actual medical expenses are susceptible to Objection by Trustee as an unnecessary or unreasonable deduction from current monthly income. Because social security income is both available and answerable to pay these expenses, debtor will bear the burden of establishing the reasonableness of any requested deduction from current monthly income for this purpose.
Therefore, this Court holds that social security benefits are excluded from the calculation of projected disposable income under § 1325, but also notes that the exclusion may raise issues as to the deductibility of medical and payroll tax expenses.
F. Conclusion as to Issues Relating to Projected Disposable Income
The provisions of § 1325(b)(1) dictate that the Court shall consider not only historical, pre-petition, levels of income and expense, but events and conditions occurring post petition that may effect income and expenses. The starting point in this analysis is the debtor's historical income and expenses as reflected on Form B22C. For five categories of expenses, actual or historical levels of expenditure are set aside in favor of IRS standard deductions. These allowances are presumed reasonable and necessary to the extent applicable to a specific debtor. They are, *867 however, subject to challenge, following confirmation, if for a sustained period of time debtor's actual expenses are substantially below that claimed. As for Other expenses deducted on Form B22C, to the extent they are applicable to debtor's, future circumstance, they will be allowed as deductions in the calculation of projected disposable income.[27] Expenses not incurred pre-petition but alleged to be necessary and reasonable post petition, will also be considered in calculating, a debtor's projected disposable income, but debtors will, bear the burden of establishing both the reasonableness and necessity of the expense.
III. Good Faith
Trustee also objects to confirmation of these plans, on, the ground that they are not proposed in good faith as required by § 1325(4)(3), Debtors urge, that because they have met the requirements of § 1325(b) and § 707(b)(2) and have proposed plans paying all their disposable income, they are in good faith.
Some courts have held that technical compliance with the provisions of § 1325(b) precludes a finding of bad faith. See, In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006)(calculation of debtor's disposable income must be determined under § 1325 and is not an element of good faith); and In re Farrar-Johnson, 353 B.R. 224 (Bankr.N.D.Ill.2006)(good faith is still a factor in confirmation but the calculations on Form B22C create a safe harbor).
This Court finds that strict and technical compliance with' the means test does not necessarily satisfy any debtors' burden of good faith. Determining whether a plan is proposed in good faith requires an analysis of the totality of the circumstances. Deans v. O'Donnell, 692 F.2d 968 (4th Cir.1982) and In re McLaughlin, 217 B.R. 772 (Bankr. N.D.Tex.1998). Nothing in the legislative history of BAPCPA indicates that Congress intended to eliminate this inquiry for debtors proposing to pay the amounts set forth on Form B22C. If in fact technical compliance with the provisions of § 1325(h)(2) was the only component of good faith, § 1325(b)(7) would be superfluous. Instead, despite a plan's compliance with all other, provisions of § 1325, § 1325(b)(7) provides the additional requirement that the plan must be proposed in good faith,
Having concluded that technical compliance with § 1325 does not create a safe harbor for debtors, the Court concedes that it should be the rare debtor whose proposed plan is technically in compliance with § 1325(b) but cannot meet the burden of good faith.
IV. Ruling
Under the analysis set forth above, confirmation is denied for the plans proposed by the Chauvins, Devilliers, Fretwells, and Piazza. Specifically, because the Chauvins, Fretwells and Piazza claimed, in the calculation of projected disposable income, IRS standard ownership deductions for unencumbered vehicles, confirmation of their plans will be denied. The failure of the Devilliers to supply the Court with proof as to the reasonableness and necessity of future health care expenses they propose to, deduct from current monthly income constitutes an additional ground for denying confirmation of their plan. Piazza has also failed to establish the reasonableness and necessity of *868 proposed deductions for contributions to a qualified retirement account. The Fretwells have failed to establish the necessity or reasonableness of claimed medical and payroll tax deductions in light of excluded Social security income. All Objections by the Trustee as to the necessity or reasonableness, of the deductions, claimed for food, clothing, and other miscellaneous items are denied.
With regard to Trustee's Objection to the deductions claimed by the Chauvins and Guidry for contributions to a qualified retirement account, to the extent the deduction are within the tax deferred limits of the Internal Revenue Code, they will be allowed and the Objection of the Trustee will be denied.
Separate Orders in accord with this Opinion Will be entered:
NOTES
[1] The debtors have calculated certain deductions from current monthly income on their Form B22Cs by utilizing the IRS National and Local standard deductions. Support for this position is claimed by reference to § 707(b)(2)(ii). For ease of reference, the applicable monthly expense amounts specified under the National Standards And Local Standards issued by the IRS for the area in which the debtor resides for five specified categories of living expenses will be referred to as "IRS standard deductions."
[2] 11 U.S.C. § 101(10A). The term "current monthly income"
(A) means the average monthly income from all sources that the debtor receives ....... derived during the 6-month period [preceding the petition date]
(B) includes any amount paid by any entity other than the debtor . . . on a regular basis for the household expenses of the debtor or debtor's dependents . . . but excludes benefits received under the Social Security Act, . . .
[3] five categories of living expenses for which National or Local Standards are calculated by the IRS are: food, clothing, household supplies, personal care, and miscellaneous expenses; utilities: housing charges; vehicle operation or public transportation expenses; and transportation ownership or lease expenses. "Other Necessary Expenses" considered by the IRS include life insurance, health care, educational expenses, dependent care, child care, court ordered support payments, job related involuntary deductions, accounting and legal fees, charitable contributions, secured debt payments, unsecured debt payments, taxes, telephone services, student loans, internet service expenses, and amounts necessary to repay federal tax loans. These expenses may or may not be allowed in the discretion of the IRS. Congress has also provided that a debtor's monthly expenses may include reasonably necessary expenses incurred to maintain the safety of the debtor and his family from family violence as defined by section 309 of the Family Violence Prevention and Services Act, or other applicable Federal law. The debtor's monthly expenses also include the actual administrative expenses of administering a chapter 13 plan for the district in which the debtor resides, up to an amount of 10 percent of the projected plan payments as determined under schedules issued by the Executive Office of the United, States Trustees. They may also include, if applicable, the actual expenses paid by the debtor that are reasonable and necessary for care and support of an elderly, chronically ill, or disabled household member or member of the debtor's immediate family who is unable to support themselves; or the actual expenses for each dependent child less than 18 years of age, not to exceed $1,500 per year per child, to attend a private or public elementary or secondary school.
[4] Only debtors receiving income over the six months preceding bankruptcy in excess of their state's median are required to comply with the means test.
[5] Section 707(b)(2)(B)(i).
[6] Bankruptcy Rule 1007(b)(1)(6).
[7] National or local standards, published by the IRS are utilized for food, clothing, household supplies, personal care, and miscellaneous expenses; utilities; housing charges including rent, mortgage payments, property taxes, maintenance charges, interest, parking, homeowner's or renter's insurance, and homeowner dues and condominium fees; vehicle operation or public transportation expenses, including, maintenance, fuel, state and local registration, required inspection fees, parking fees, tolls, and driver's license charges; and transportation ownership or lease expenses including payments on debts secured by a vehicle and insurance.
[8] Additionally, the phrases "to be received in the applicable commitment period," in 1325(b)(1)(b), and "to be expended," in 1325(b)(2), signify future income and expenses. This adds support to the conclusion that Congress intended "projected disposable income" to be determined by looking at not only a debtor's pre-petition financial situation, but by also looking at his or her current and anticipated income and expenses. In re Edmunds, 350 B.R. at 644.
[9] See, e.g., Matter of Case, 937 F.2d 1014, 1024 (5th Cir.1991).
[10] Additional deductions are found by reference to §§ 362(b)(19), 541(b)(7), 1322(f) and 1325(b)(2).
[11] 11 U.S.C. § 1322(f).
[12] 11 U.S.C. § 707(b)(2)(A)(ii)(I).
[13] 11 U.S.C. § 707(b)(2)(A)(ii)(IV).
[14] 11 U.S.C. § 707(b)(2)(A)(ii)(II).
[15] All expenditures, except those utilizing the IRS standards, are subject to independent verification. Again, while historical levels of expenditure might prove instructive, the past is not always prologue for the future. Thus, whether or not a particular type of expense was incurred pre-petition, to include it in the calculation of projected disposable income, the debtor may be required to provide independent verification of the necessity for the expense in the future.
[16] 11 U.S.C. § 1325(b)(1)(B).
[17] Section 1329 allows for modification of a plan should debtor's disposable income prove to be more or less than that originally calculated at confirmation.
[18] For example, a debtor's utility bill for July in New Orleans will vary widely from, his bill in January yet the amount reflected on schedule J is what the debtor deems to be his current monthly utility expense. Some debtor's use an average, others the most recent month's bill.
[19] 11 U.S.C. § 1325(b)(3).
[20] In two of the five categories, the standard allowance may be modified at confirmation if debtor substantiates that his experience warrants an upward departure. The debtor's monthly expenses may include an allowance for housing and utilities, in excess of the allowance specified by the local standards for housing and utilities issued by the IRS, based on actual expenses for home energy costs if such expenses are reasonable and necessary. It may also include, if demonstrably reasonable and necessary, an additional allowance for food and clothing of up to 5 percent of the food and clothing allowance as specified by the national standards issued by the IRS. See § 707(b)(2)(ii)(I) and (V).
[21] 11 U.S.C. § 707(b)(2)(A)(ii)(I).
[22] Under the IRS' standards, the lease or purchase payment, along with insurance charges,, comprise the standard cost of acquiring or leasing a vehicle. Maintenance, fuel, state and local registration, inspections, parking fees, tolls, and driver's license charges are included in the operational standard allowance. Pursuant to § 707(b)(2)(A)(iii)(II), the monthly secured note payable to maintain possession of debtor's motor vehicle is also deductible from current monthly income. Since the note is encompassed within the acquisition standard, to the extent that the note is less than the standard (after adding the costs of insurance), any difference is presumably not deductible because it is either unreasonable or unnecessary. Conversely, lease payments on, vehicles are deductible to the extent of the standard ownership allowance and not in excess of the amounts provided as they are not payments secured by a vehicle under § 707(b)(2)(A)(iii)(II). Since both of these calculations are readily ascertainable at confirmation, the Court will consider these types of objection at confirmation.
[23] Debtors' counsel have argued that wholly owned vehicles are more likely to require additional and substantial repairs not otherwise covered by, the operation allowance. They maintain, that the ownership deduction would be a viable means for deducting these additional Costs and therefore should be allowed. The Court rejects this argument. If a vehicle routinely incurs repair or maintenance expenses exceeding those allowed, under IRS standards, Congress seems to be favoring the purchase of a new car over the continued maintenance of the old.
[24] In four of the five cases considered, deductions for contributions to a qualified retirement account have been challenged by the Trustee. Three of the cases involve above the means' test debtors and one concerns a below the means test debtor. Because the exclusion for qualified retirement contributions is not limited to above the means test debtors, but found as a general proposition under § 541, the Court can find no distinction in the availability of the deduction between above or below the means test debtors.
[25] The calculation of disposable or projected disposable income begins with current monthly income. Section 101(10A) defines current monthly income. See fn. 2.
[26] 42 U.S.C.A. § 407(a) provides that:
The right of any person to any future payment under this subchapter shall not be transferrable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation, of any bankruptcy or insolvency law.
[27] The Court presumes that these expenses has already been established as reasonable and necessary pre-petition charges if included on Form B22C. The only issue the Court addresses is debtor's ability to claim the same expenditures and levels consistent with Form B22C in the calculation of projected disposable income.
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875 F.Supp. 1015 (1995)
The STATE OF NEW YORK, Plaintiff,
v.
SOLVENT CHEMICAL COMPANY, INC., ICC Industries, Inc., Mader Capital Corporation, 3163 Buffalo Avenue Corporation, and Corigan Sanoian, Individually and d/b/a Quad Technologies, Inc., Defendants.
SOLVENT CHEMICAL COMPANY, INC., ICC Industries, Inc., and Mader Capital Corporation, Defendants and Third-Party Plaintiffs,
v.
The UNITED STATES of America, E.I. DuPont de Nemours and Company, Occidental Chemical Corporation, the City of Niagara Falls, New York, Frontenac Environmental Services, Inc., Laidlaw Transportation Company, Ltd., Consolidated Rail Corporation, Bema Company, Ltd., Eastman Kodak Company, and General Motors Corporation, Third-Party Defendants.
No. 83-CV-1401C.
United States District Court, W.D. New York.
January 31, 1995.
*1016 *1017 Damon & Morey (Paul M. Samson, of counsel), Buffalo, NY, for Solvent Chemical Co., Inc.
David Calverly, Buffalo, NY, for ICC Industries, Inc.
Duke, Holtzman, Yaeger & Photiadis (Peter G. Ruppar, and James L. Duke, of counsel), Buffalo, NY, for Mader Capital Corp.
Harris Beach & Wilcox (Henry W. Killeen, III, of counsel), Hamburg, NY, for Laidlaw Transp. Co., Ltd.
CURTIN, District Judge.
On July 19, 1994, third-party defendant Laidlaw Inc. ("Laidlaw") filed a motion to dismiss, with prejudice, the amended third-party complaints of Solvent Chemical Co., Inc. ("Solvent"), Item 179, Mader Capital, Inc. ("Mader"), Item 181, and ICC Industries, Inc. ("ICC"), Item 183. Item 240. Oral argument was held on December 16, 1994. For the reasons given below, Laidlaw's motion is denied.
BACKGROUND
Plaintiff, the State of New York, filed suit on December 9, 1983, against Solvent, Mader, ICC, and three other defendants, under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and related state law for the costs of investigation and clean-up of a site located at 3163 Buffalo Avenue, Niagara Falls, New York. Item 1. In June, 1986, Solvent, Mader, and ICC filed third-party complaints asserting CERCLA contribution and related claims against various third-party defendants. Items 42-44. No claims were asserted against Laidlaw at that time.
A remedial investigation of the site by certain of the defendants and third-party defendants resulted in a report to the State of New York in 1991. The State subsequently hired a contractor to conduct further investigative work, analysis, and a feasibility study. Meanwhile, only limited progress has been made in this litigation. Over the years some discovery has been carried out; however, even now it appears to be far from complete.
On December 28, 1993, Solvent filed a motion for leave to file an amended third-party complaint in order to assert claims against six new third-party defendants including Frontenac Environmental Services, Inc. ("Frontenac") and Laidlaw. Item 171. ICC and Mader then filed similar motions. Items 173, 174. The stated grounds for adding Frontenac and Laidlaw as third-party defendants were (1) that Frontenac was a tenant at the site from about 1980 to about 1984, and during that time conducted various operations that may have contributed to the contamination of the site with hazardous materials, and (2) that during some or all of that time, Frontenac was owned, controlled, and dominated by Laidlaw. The motions were unopposed by the parties to the action at that time, and were granted. Items 176-178. Amended third-party complaints were duly filed, in April 1994. Items 179, 181, 183.
In support of its motion to dismiss with prejudice, Laidlaw makes three closely related *1018 arguments. First, it maintains that the amended third-party complaints do not satisfy the pleading requirements of Fed.R.Civ.P. 8 and 9(b), because they do not address each element of the claims asserted or allege specific facts in support of those claims. Item 241, pp. 5-14; Item 308, pp. 5-7. Second, it contends that the third-party plaintiffs have failed to demonstrate a good faith factual basis for their claims, as required by Fed. R.Civ.P. 11. Item 241, p. 16; Item 308, pp. 2-5. And finally, it argues that the third-party plaintiffs have neither made the threshold showing of merit required to support the belated impleading of a party under Fed.R.Civ.P. 14(a) and 15(a), nor provided the court with a satisfactory explanation for the delay in asserting their claims against Laidlaw. Item 241, p. 14-16; Item 308, pp. 7-9. In this context, Laidlaw contends that joinder at this time is unfairly prejudicial. Item 308, pp. 8-9.
In response, Mader and Solvent argue that the allegations contained in their amended third-party complaints are sufficient to satisfy the notice pleading requirements of Fed. R.Civ.P. 8, and that Fed.R.Civ.P. 9(b) is inapplicable. Item 273, pp. 2-13; Item 283, pp. 3-13. Solvent contends that regardless of which rule applies, it is entitled to proceed with discovery to obtain specific information in support of its claim that is currently in the sole possession of Laidlaw. Item 283, pp. 7-8, 13. Mader asserts that in the event that the court dismisses its complaint against Laidlaw, it should be granted leave to replead with an opportunity for discovery prior to repleading. Item 273, pp. 14-21. In this context, it contends that it has a simple, acceptable explanation for the delay in filing its complaint against Laidlaw, and that Laidlaw has not demonstrated that the delay has resulted in any prejudice that might warrant the denial of leave to replead. Id., p. 19. ICC joins in Solvent's submissions. Item 286.
At oral argument, ICC's counsel pointed out that Laidlaw makes no statute of limitations argument. He claimed that even if liability had already been established against ICC in this case, ICC could still bring an action against Laidlaw for contribution. Therefore, he maintained, there is no force to Laidlaw's claim of prejudice resulting from the delayed filing. Counsel for Laidlaw did not attempt to rebut this argument.
DISCUSSION
1. Sufficiency of the Pleadings Fed. R.Civ.P. 8(a), 9(b)
Fed.R.Civ.P. 8(a)(2) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The objective of this rule is "to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The Supreme Court has stated that:
[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim.... Such simplified "notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.
Id. at 47-48, 78 S.Ct. at 102-03. See also, Wade v. Johnson Controls, Inc., 693 F.2d 19, 21 (2d Cir.1982) ("[u]nder the liberal theory of notice pleading in the federal rules, a complaint need not state `facts' or `ultimate facts' or `facts sufficient to constitute a cause of action'"). Similarly, "federal pleading is by statement of claim, not by legal theory." Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 600 (2d Cir.1991); see also, Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 421 (7th Cir.1994) ("the district court has a duty to consider whether a plaintiff's allegations could provide relief under any available legal theory"). Generally, therefore, a complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. at 101-02.
A review of the amended third-party complaints at issue in this case reveals that the third party plaintiffs have alleged that (1) *1019 from about 1980 to about 1984, Frontenac conducted various operations involving hazardous wastes at 3163 Buffalo Avenue, Niagara Falls, (2) during the course of those operations, Frontenac released hazardous wastes at the site, (3) during the time Frontenac owned and operated the site, hazardous wastes were released from and migrated off the site, (4) Frontenac failed to prevent the migration of the wastes from the site, and (5) during all or part of the time that Frontenac operated at and occupied the site, it was owned, operated, dominated, and controlled by Laidlaw. Item 179, ¶¶ 40-44; Item 181, 58-69; Item 183, ¶¶ 39-43.
Laidlaw does not argue that the allegations concerning Frontenac's operation of the site are insufficient to support a claim for contribution under CERCLA. Neither does it contend that Laidlaw was not the corporate parent of Frontenac during the period in question. Rather, it maintains that the allegation that Frontenac was owned, operated, dominated, and controlled by Laidlaw is simply "conclusory," and unsupported by facts sufficient to sustain a claim of parental liability under CERCLA, either under an ownership theory based on "piercing the corporate veil," or under a theory of operator liability. See Item 241, pp. 3-14.
Under CERCLA § 107(a), "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of" may be held liable for response costs under the Act. 42 U.S.C. § 9607(a). It is generally agreed that "owner" liability and "operator" liability are two distinct concepts. See, e.g., Long Beach Unified School District v. Dorothy B. Godwin California Living Trust, 32 F.3d 1364, 1367 (9th Cir.1994); Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d at 420-21; Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209, 1220 (3d Cir. 1993); John S. Boyd Co., Inc. v. Boston Gas Co., 992 F.2d 401, 408 (1st Cir.1993). A corporation may be held liable as the owner of another corporation under circumstances warranting "piercing the corporate veil." Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d at 1224-25; John S. Boyd Co., Inc. v. Boston Gas Co., 992 F.2d at 408. In addition, an affiliated corporation may be held liable as an operator when it is "deemed ... to have had substantial control over the facility in question." Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d at 1220. Some courts have held that operator liability may attach only when there is evidence of the actual exercise of control. Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d at 1220-21; United States v. Kayser-Roth Corp. Inc., 910 F.2d 24, 27 (1st Cir.1990), cert. denied, 498 U.S. 1084, 111 S.Ct. 957, 112 L.Ed.2d 1045 (1991). Others have held that the authority to control is, by itself, sufficient. Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 842 (4th Cir), cert. denied, ___ U.S. ___, 113 S.Ct. 377, 121 L.Ed.2d 288 (1992); Idaho v. Bunker Hill Co., 635 F.Supp. 665, 671-72 (D.Idaho 1986). See also, FMC Corp. v. Aero Industries, Inc., 998 F.2d 842, 846 (10th Cir.1993); United States v. Carolina Transformer Co., 978 F.2d 832, 836-37 (4th Cir.1992). The Second Circuit has not yet ruled on this issue.
I find that the third-party plaintiffs' allegations that Frontenac was owned, operated, dominated, and controlled by Laidlaw at the time Frontenac conducted its hazardous waste operations at 3163 Buffalo Avenue are sufficient under the liberal pleading standards of Fed.R.Civ.P. 8(a) to give fair notice to Laidlaw of their claims of corporate parent operator liability under CERCLA, under either an "actual exercise of control" or an "authority to control" theory. The general nature of the claims is clear enough. Discovery should enable the third-party plaintiffs to define them more precisely. As the third-party plaintiffs argue, the specific information needed for establishing the extent of Laidlaw's control of Frontenac and its activities may be currently in the exclusive possession of Laidlaw. Item 273, p. 9; Item 283, pp. 5, 7. They cannot be expected to plead, at this time, facts sufficient to delineate the extent to which Laidlaw controlled Frontenac.
Since the amended third-party complaints sufficiently allege CERCLA operator liability claims, they cannot be dismissed under Fed. *1020 R.Civ.P. 12(b)(6). There is therefore no need to decide at this time whether or not they sufficiently allege claims under an ownership liability theory based on "piercing the corporate veil," or whether, as Laidlaw maintains, such claims must be stated with the particularity required by Fed.R.Civ.P. 9(b).
2. Good Faith Basis for the Claims Fed. R.Civ.P. 11
Laidlaw maintains that the third-party plaintiffs have failed to demonstrate, in their amended third-party complaints and their papers responding to Laidlaw's motion to dismiss, any good faith factual basis for their claims. Item 241, p. 16; Item 308, pp. 2-5. See also, Item 316. Consequently, it contends, the third-party plaintiffs have failed to comply with Fed.R.Civ.P. 11, their amended third-party complaints should be dismissed (Item 308, p. 5), and there is no basis for allowing them to replead or to proceed to discovery (Item 241, p. 16). It has not, however, made a direct challenge to the third-party plaintiffs' submissions by moving for sanctions under Fed.R.Civ.P. 11(c).
Fed.R.Civ.P. 11(b) states:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
....
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery....
Thus, under Fed.R.Civ.P. 11(b), the submission of a pleading by an attorney constitutes a certification that, to the best of the attorney's knowledge, the allegations made in the pleading have, or are likely to have, evidentiary support. A court may rely upon that certification unless it is presented with good reasons not to. There are no such reasons here. The third-party plaintiffs have made the simple allegation that Frontenac was owned, operated, dominated, and controlled by Laidlaw in 1980-84. Laidlaw has not denied the allegation, or provided the court with evidence that the allegation is not well-founded, or given the court any reason to think that it has not been made in good faith. It appears that Laidlaw is asking the court to graft, via Fed.R.Civ.P. 11(b), a particularity requirement onto the notice pleading requirements of Fed.R.Civ.P. 8(a). I decline to do so.
Laidlaw relies heavily on B.F. Goodrich Co. v. Murtha, 815 F.Supp. 539 (D.Conn. 1993). In that case, Judge Dorsey was presented with a motion to add 1,151 third-party defendants as prospective contributors, based on a theory of arranger liability under CERCLA § 107(a), 42 U.S.C. § 9607(a). Because of the magnitude of the problem presented by the prospective addition of so many parties, the court agreed to allow the impleading of only those parties against whom claims were "sufficiently substantiated, legally and factually" under the test in Fed. R.Civ.P. 11. Id. 815 F.Supp. at 541. This decision was based on the court's determination that a review of the allegations underlying the claims for contribution before the filing of a third-party complaint would be "the most efficient and fair method of determining their validity," and would "avoid flooding the court with claims not shown to be well-grounded in fact," thereby preserving both judicial efficiency and the funds available for remediation. Id. at 543. The special circumstances existing in Murtha are not present here, and I see no reason in this case to place pleading burdens on the third-party plaintiffs beyond those established by Fed. R.Civ.P. 8(a).
3. Impleading of A Party Fed.R.Civ.P. 14(a), 15(a)
The third-party plaintiffs were given leave to amend their third-party complaints pursuant to Fed.R.Civ.P. 14(a) and 15(a). Laidlaw contends that when, as here, these rules are invoked to implead a party after more than a decade of litigation, the moving parties are required to make "some substantial showing of merit" to their third-party claims, and provide a satisfactory explanation *1021 for the delay in bringing them. Item 241, pp. 15-16; Item 308, pp. 7-9. It argues that in this case, the third-party plaintiffs have failed to demonstrate merit, and have made no attempt to explain their delay.
Under Fed.R.Civ.P. 14(a), a defendant may implead a third party "who is or may be liable to [him] for all or part of the plaintiff's claim against [him]." The rule "was designed to permit the liberal joinder of parties so that judicial energy could be conserved and consistency of results guaranteed." Olympic Corp. v. Societe Generale, 462 F.2d 376, 379 (2d Cir.1972). Its purpose is "to promote judicial efficiency by eliminating the necessity for the defendant to bring a separate action against [a third party] who may be secondarily or derivatively liable...." McLaughlin v. Biasucci, 688 F.Supp. 965, 967 (S.D.N.Y.1988). Where the third-party complaint is not filed within ten days after the defendant's original answer is served, the defendant must ask the court for leave to implead. Fed.R.Civ.P. 14(a). The decision to grant leave is discretionary with the court, and "care must be taken to avoid prejudice to the plaintiff or third-party defendant." Olympic Corp. v. Societe Generale, 462 F.2d at 379. Courts will "`balance the benefits derived from impleader ... against the potential prejudice to the plaintiff and third-party defendants.'" Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, SEIU, AFL-CIO v. C.N.H. Management Associates, Inc., 741 F.Supp. 415, 419 (S.D.N.Y.1990) (quoting Sribnyj v. City of New York, No. 85-Civ-2770, 1988 WL 42110 (S.D.N.Y. April 25, 1988)). See also, Gross v. Hanover Insurance, Co., 138 F.R.D. 53, 54-55 (S.D.N.Y.1991). In applying this standard, courts may also consider whether the moving party deliberately delayed or was derelict in filing the motion, and whether impleading would unduly delay or complicate the trial. Id.
In this case, I find that the benefits of impleader clearly outweigh the potential for prejudice. Judicial efficiency will best be served by considering the third-party claims against Laidlaw in the same action as the numerous other claims concerning 3163 Buffalo Avenue. I see no benefit in the court having to consider the claims against Laidlaw in a separate action.[1] Neither the plaintiff nor the various other defendants and third-party defendants already in the case have opposed the impleading of Laidlaw, so there is no reason to think that any of those parties will suffer prejudice as a result of Laidlaw's presence as a third-party defendant. And although the claims against Laidlaw were brought more than ten years after the original filing of this lawsuit, discovery is still far from complete and there is much to be done before the case can come to trial. There is no reason to think that Laidlaw will have less opportunity to conduct discovery and prepare its defense than it would if the claims against it were brought in a separate action. Neither is there reason to believe that anything has occurred during the course of this lawsuit that might result in any prejudice to Laidlaw that it would not also suffer as a defendant in a separate action.
The cases cited by Laidlaw in support of its position all concern Fed.R.Civ.P. 15(a) (amendments to pleadings), rather than Fed.R.Civ.P. 14(a) (impleader). In a case like the present one, in which a motion to amend is brought solely for the purpose of impleading additional defendants, the correct standard to be applied is that under Fed. R.Civ.P. 14(a). Nevertheless, I note that in general, permission to amend under Fed. R.Civ.P. 15(a) should be freely granted. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir.1990). As Laidlaw observes, the court has discretion to deny leave to amend "where the motion is made after an inordinate delay, no satisfactory explanation is offered for the delay, and the amendment would prejudice the defendant." Id. But the focus of the inquiry is on the interests of the court and the non-moving parties, not on those of prospective defendants to be impleaded under Fed.R.Civ.P. 14(a). In the present case, the court has a strong interest in seeing all claims concerning 3163 Buffalo Avenue litigated in a single action, and the non-moving parties make no claim of prejudice. *1022 There is therefore no reason to grant Laidlaw's motion under Fed.R.Civ.P. 15(a).
CONCLUSION
For the reasons given above, Laidlaw's motion to dismiss the amended third-party complaints of Solvent, Mader and ICC, Item 240, is denied.
So ordered.
NOTES
[1] As noted above, at oral argument Laidlaw made no attempt to rebut ICC's claim that ICC, at least, could still bring a separate action against Laidlaw for contribution.
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690 So.2d 792 (1996)
Myrtle FOSTER, PlaintiffAppellee,
v.
LIBERTY RICE MILL, DefendantAppellant.
No. 96-438.
Court of Appeal of Louisiana, Third Circuit.
December 11, 1996.
Rehearing Denied February 20, 1997.
*794 Randall Scott Iles, for Myrtle Foster.
Katherine Marie Loos, Lafayette, for Liberty Rice Mill.
Before DOUCET, C.J., and SAUNDERS and AMY, JJ.
SAUNDERS, Judge.
In this workers' compensation proceeding, the employer-appellant asks that we find manifest error and reverse its being found liable for temporary total disability benefits, penalties and attorney fees, plus certain post-judgment medical expenses. Finding no manifest error, we affirm the judgment of the hearing officer and award an additional $3,500.00 for legal expenses incurred by claimant in defending this appeal.
FACTS
Myrtle Foster, born August 28, 1945, injured her left wrist while acting in the course and scope of her employment with Liberty Rice Mill on December 18, 1991. Ms. Foster, who packaged twenty (20) pound increments of chute-dropped rice in burlap bags, was sent by her employer to see Dr. Suresh Patel, the company doctor. In January 1992, Dr. Patel referred Ms. Foster to orthopaedic surgeon Dr. Roland Miller.
Ms. Foster worked light duty until February 1, 1992, when, according to defendant, she was asked to take a leave of absence since her employer had no light duty work to offer her.
Dr. Miller first saw claimant on February 19, 1992, and diagnosed her with De Quervain's syndrome, a disabling neurological condition afflicting claimant's left hand, wrist, and arm. After Dr. Miller's conservative treatment proved unsuccessful, nerve release surgery recommended by Dr. Miller on April 6 was performed five months later, on September 22, 1992. At first, the results of Dr. Miller's surgery appeared encouraging, and Dr Miller believed that Ms. Foster might be able to return to work after a several month convalescence. Consistent with his initial optimism, Dr. Miller's reports issued one week, two weeks, six weeks, two and a half months, and six months after the surgical release indicated gradual improvement. By March 1993, Ms. Foster's condition improved to the point that her physical therapy could be decreased to once a week. If Ms. Foster's condition continued to improve at her current rate, Dr. Miller believed that she might be *795 able to return to work by the time of her next appointment in April 1993.[1]
Unfortunately, Ms. Foster's case took a turn for the definite worse as of April 28, 1993, by which time her symptoms unmistakably had begun to reappear.[2] According to Dr. Miller, Ms. Foster "had been doing very well up until approximately two weeks ago when she started having some catching again in the wrist and this has happened several times and caused some pain."
This controversy arose when Ms. Foster's employer reduced her benefits the following summer. Ms. Foster had received TTD benefits at the rate of $164.69 per week, based on an average weekly wage of $247.03, until August 30, 1993, when her benefits were converted to SEB and reduced to $31.35 per week on the avowed grounds of a medical report by one of the company's two physicians and a report from a vocational rehabilitation consultant retained by the employer.[3]
A Form 1008 was filed by Ms. Foster on September 21, 1993, in which she sought TTD or permanent total disability benefits, and medical treatment. Following Liberty Rice Mill's answer on October 21, 1993, and several continuances, the matter was tried on March 15, 1995. The hearing officer took the matter under advisement. After considering the testimony presented by Ms. Foster, vocational rehabilitation consultants, live testimony, employees of allegedly prospective employers, and of Drs. Miller and Morrow, the hearing officer rendered judgment on January 5, 1996, awarding claimant TTD, penalties, and $7,500.00 in attorney fees. The judgment additionally awarded Ms. Foster medical treatment in accordance with a July 20, 1995, medical report requested by the hearing officer while the matter was under advisement. This appeal followed.
ISSUES PRESENTED
Issues presented by the employer for our review include:
1) whether the hearing officer erred in concluding that claimant sustained her burden of proof in proving her entitlement to temporary total disability (TTD) benefits with clear and convincing evidence, rather than supplemental earnings benefits (SEB);
2) whether certain medical treatments recommended by Dr. Robert Morrow in his report of July 20, 1995, should be paid for by the employer and its insurer; and
3) whether the hearing officer erred in awarding penalties and attorney fees.
Temporary Total Disability (TTD) Benefits
By its first assigned error, the employer contends that the hearing officer erred in awarding claimant TTD benefits. The employer maintains that Ms. Foster's condition had improved in the months or years following the accident to the point that her employer was entitled to reduce her benefits to SEB.
The burden of proof required of a claimant to recover TTD benefits is set forth in Tanner v. International Maintenance Corp., 602 So.2d 1133 (La.App. 1 Cir.1992), cited by appellant:
LSA-R.S. 23:1221(1) provides, in pertinent part:
(1) Temporary total.
(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and *796 two-thirds percent of wages during the period of such disability.
* * * * * *
(c) For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. (emphasis added).
The above quoted statute reflects legislative amendments which were made in 1989, effective January 1, 1990. These amendments set forth a more stringent standard of proof for a claimant seeking disability benefits based on a temporary total disability. Prior to the 1989 amendments, the burden of proof in a claim for temporary total disability benefits was by a "preponderance of the evidence". However, under the statute, as amended, the claimant must prove the nature and extent of his disability by clear and convincing proof, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment.
The statute contemplates that an employee, as here, may be able to prove by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. The 1989 amendments to LSA-R.S. 23:1221(1) did not alter this burden of proof. However, in the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant's demand for temporary total compensation benefits, must fail.
LSA-R.S. 23:1031 A provides:
If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.
This statute sets forth the threshold requirements which must be met by a claimant to fall within the coverage of the Workers' Compensation Act. Once an employee satisfies these threshold issues required by LSA-R.S. 23:1031, he has proven that he is covered by the workers' compensation laws. The employee may be entitled to medical benefits pursuant to LSA-R.S. 23:1203 and/or disability benefits pursuant to LSA-R.S. 23:1221. To receive disability benefits based on a temporary total disability, however, the claimant must satisfy the requirements of LSA-R.S. 23:1221(1), by clear and convincing evidence.
Id. at 1137 (emphasis ours).
Upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB benefits if she is unable to earn 90% of her pre-accident wages. La.R.S. 23:1221(3); See Mitchell v. AT&T, 27,290 (La.App. 2 Cir. 8/28/95); 660 So.2d 204, writ denied, 95-2474 (La.12/15/95); 664 So.2d 456.
The manifest error-clearly wrong standard of appellate review applies to findings of fact in workers' compensation proceedings. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94); 630 So.2d 733; Alexander v. Pellerin Marble and Granite, 93-1698 (La.1/14/94); 630 So.2d 706. As the supreme court has observed, this standard is a heavy one, particularly when a hearing officer's findings are drawn from an opportunity to observe firsthand the demeanor of witnesses called to the stand.
It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and *797 where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneousclearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
When findings are based on determinations regarding the credibility of witnesses, the manifest errorclearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989)(emphasis ours) (citations and notes omitted).
Defendant places great weight upon the opinion of Dr. Roland Miller, one of the physicians to whom it had referred claimant, that Ms. Foster had reached maximum medical improvement by August 1993. Clearly, even Dr. Miller's earlier reports do not establish manifest error on the part of the hearing officer in failing to find that claimant had reached MMI earlier. Dr. Miller's March 1993 report merely expressed his hope that when Ms. Foster returned "in six weeks' time, we will see what we can do as far as recommending perhaps a part-time job or light duties" (emphasis ours); and by April 28, 1993, when Dr. Miller tentatively suggested that "[i]f a position was available that was truly light duty, nonstressfull [sic] to the left hand, then I feel that she would be able to perform [it]," but that in the meantime, Ms. Foster would be "continuing to try to build up the strength of her hand, wrist and forearm." Thus, the record discloses no manifest error as to the hearing officer's award of TTD benefits through April 28, 1993.
Nor does the record disclose that the hearing officer manifestly erred in awarding claimant TTD benefits through at least June 9, 1993. Responding promptly to Dr. Miller's tentative April 28 suggestion that vocational possibilities should be explored, the employer on May 12, 1993, sent Ms. Kay Martin of Richard and Associates to visit Dr. Miller. According to Dr. Miller's notes of that day, he "went over a list of things that Myrtle [Foster] could and could not do," and there was language suggesting that claimant could return to work by May 12. Claimant was not present at this meeting, but did see Dr. Miller again on June 9, 1993, about seven months post-surgery. On this date, Dr. Miller noted that Ms. Foster still had "some stiffness with radial deviation" and would have, according to Dr. Miller, "some permanent residual" loss from her accident and "tenderness over the extensor tendons to the thumb at the wrist level." Although this tenderness was "much milder than it had been pre-operatively," Dr. Miller declined to retreat from her care but instead decided to "allow her two more months for recovery, and if by next visit she is not recovered, then what she will have will be a permanent residual..." (emphasis ours), making a MMI determination more probable. Thus, by *798 June 9, 1993, it was clear that Ms. Foster had not reached MMI. In fact, in response to defendant's June 9 question of whether Ms. Foster had reached maximum medical improvement, Dr. Miller indicated that she had not, but rather that "perhaps a few more months would be required." (Emphasis ours.) Thus, even according to Dr. Miller, claimant had not reached MMI by June 9.
Which brings us back to defendant's argument that Ms. Foster had reached maximum medical improvement by August 18, 1993, based upon one sentence contained in Dr. Miller's report of that date. Indeed, one sentence contained in that one medical report does explicitly state that Dr Miller was of the opinion that Ms. Foster had reached maximum medical improvement by August 18, 1993. However, another report suggests that Ms. Foster "never really reached complete healing." At any rate, as will be seen presently, given the strength of the totality of the evidence, including the contradictory testimony of Dr. Morrow, who consistently has sought additional treatments for claimant, and of claimant, who has endeavored to obtain them, Dr. Miller's August 18 report alone is inadequate to show that the hearing officer manifestly erred in decreeing claimant eligible for TTD benefits.
Unable to Engage in Any Employment?
Alternatively, the employer-appellant asks that we find manifest error in the hearing officer's conclusion that claimant is not able to engage in any employment as required to recover TTD, at least not by clear and convincing evidence. As noted above, for accidents occurring since 1989, a claimant seeking temporary total disability benefits is required to establish with clear and convincing evidence that her physical disability precludes her from engaging in any employment. La.R.S. 23:1221(1); Tanner, 602 So.2d 1133.
Under applicable standards of appellate review, we are not persuaded by defendant's argument. The conclusion reached by the hearing officer was supported by claimant's testimony and physical appearance on the date of trial, and by Dr. Morrow's opinions. Ms. Foster, born on August 28, 1945, was a lifelong resident of Forked Island, Vermilion Parish, Louisiana, and an eighth grade graduate. She testified at trial without contradiction that, whereas before her surgery she could "eat a steak and cut it myself," afterwards she could not even take a bath, shave her legs, sweep, or vacuum without help. This testimony, we find, clearly supported the hearing officer's finding that claimant was physically unable to engage in any gainful employment.
Additionally, on June 26, 1995, after the hearing was conducted, the hearing officer referred Ms. Foster back to Dr. Morrow for a re-evaluation. When Dr. Morrow saw claimant on July 20, 1995, he saw primary and secondary symptoms of claimant's earlier De Quervain's Syndrome. In addition to wondering aloud about why claimant had not been tested following his last examination of November 2, 1993, almost two years earlier, Dr. Morrow referred Ms. Foster to Dr. Paul Hubbell. Dr. Morrow's report of July 20, 1995, also stated:
At this time, I would give her a permanent functional impairment of the left upper extremity of 50% with this being a whole person impairment of 30%. At this time, I don't think that she is capable of performing work with this left upper extremity. [Emphasis ours.]
According to defendant, Dr. Morrow's reports alone did not constitute clear and convincing evidence of Ms. Foster's total disability because the emphasized language only declared a portion of Ms. Foster's body disabled as of the date of trial. We disagree. Rather, after observing that the manifest error rule extends to credibility determinations based upon conflicting medical testimony, Lirette v. State Farm, 563 So.2d 850 (La.1990) and authority therein, we conclude that the hearing officer was not wrong in understanding the emphasized language to mean that Ms. Foster's work-related disability prevented her from performing any kind of work. Therefore, on the strength of Dr. Morrow's reports and the hearing officer's eyewitness credibility assessments of claimant and the other witnesses, we decline to second-guess the hearing officer's conclusion that claimant was *799 temporarily totally disabled from engaging in any employment. From the totality of the evidence, the hearing officer reasonably could have concluded that claimant was totally disabled from performing any work.
The trial court must weigh all the evidence, medical and lay, in order to determine if the plaintiff has met his burden. Simpson v. S.S. Kresge Co., 389 So.2d 65 (La.1980). This factual finding should be given great weight and should not be overturned absent manifest error. Prim [v. City of Shreveport, 297 So.2d 421 (La.1974)] supra; Johnson v. Ins. Co. of N. America, 454 So.2d 1113 (La.1984). See, also, Thomas v. Highlands Insurance Company, 617 So.2d 877 (1993).
Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 280 (La.1993).[4] "Disability can be proven by medical and lay testimony." Id. at 280.
Given the conflicting evidence, we cannot say that the hearing officer manifestly erred in choosing to credit the testimony of Dr. Morrow and Ms. Foster, whose demeanor the hearing officer could observe firsthand, in determining that claimant, a common laborer, was in fact totally disabled from engaging in any work.
When an injured manual laborer is disabled at time of trial from performing physical labor and is still undergoing medical testing and treatment with an indefinite recovery period, he is entitled to benefits of temporary total disability. See Brewster v. Manville Forest Products Corp., 469 So.2d 340, 346 (La.App. 2d Cir. 1985). See also Thomas v. Elder Pallet & Lumber Sales, Inc., 493 So.2d 1267 (La. App. 3d Cir.), writ denied, 497 So.2d 312 (La.1986).
Pickett v. Stine Lumber Co., 93-1534, p. 9 (La.App. 3 Cir. 6/1/94), 640 So.2d 769, 773.
Certainly, there is nothing contained in the testimony of the vocational rehabilitation specialists retained by defendant that mandates a contrary conclusion.[5]
The trier of fact may accept or reject any part of a witness' testimony. Dominici v. Wal-Mart Stores, Inc., 606 So.2d 555 (La.App. 4th Cir.1992). The trier of fact may choose to reject all of the testimony of any witness or may believe and accept any part or parts of a witness' testimony and refuse to accept any other part or parts thereof. LaHaye v. Allstate Ins. Co., 570 So.2d 460 (La.App. 3rd Cir.1990); Harrigan v. Freeman, 498 So.2d 58 (La.App. 1st Cir.1986).
Welch v. Winn-Dixie Louisiana, Inc., 94-2331, p. 16 (La.5/22/95); 655 So.2d 309, 317.
On prior occasions, this court has had occasion to decry the apparent conflict of interest which accompanies the retention by the employer of a "rehabilitation expert who, according to LSA-R.S. 23:1226, although paid by the employer, is to `assist the employee in his job placement or vocational training.'" [Emphasis omitted.] City of Crowley v. Comeaux, 93-1116, p. 5 (La.App. 3 Cir. 4/6/94); 638 So.2d 658, 661 n. 2, writ denied, 94-1184 (La.6/24/94); 640 So.2d 1355. See also Maxie v. Brown Industries, Inc., 95-19 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La.10/6/95); 661 So.2d 469. Indeed, certain members of this court have even gone so far as to explicitly suggest that the supreme court of this state exercise its supervisory jurisdiction and determine once and for all whether this practice should be permitted to continue. See, e.g., Judge *800 Laborde dissent in Autin v. Hessmer Nursing Home, 93-1492 (La.App. 3 Cir. 6/1/94); 638 So.2d 693 (Laborde, J., dissenting); Crowley, 638 So.2d 658.
In this case, we need not go so far. Instead, we merely conclude that when in a workers' compensation proceeding a hearing officer chooses to credit a claimant's version of events or to discredit an employer's version on the basis of the source of a vocational rehabilitation consultant's retainer, its decision to do so will not lightly be overturned.
Here, because the hearing officer did not manifestly err in choosing to accept claimant's version of events over that presented by defendant, we affirm claimant's award of TTD benefits, which was based on credibility determinations of expert and lay witnesses, and claimant's appearance and demeanor. Given the weight of the countervailing evidence, we do not find clearly wrong the hearing officer's finding less than convincing the professional conclusions of the rehabilitation personnel hired by the employer.
Penalties and Attorney Fees
Defendant suggests that even if its case failed to rebut claimant's allegations that Ms. Foster was entitled to TTD benefits, it was at least adequate to preclude an award of penalties and attorney fees. Claimant opposes this suggestion and seeks an additional $7,500.00 in attorney fees in connection with defending this appeal.
The determination of whether an employer should be cast with penalties and attorney's fees is essentially a question of fact and the trial court's finding shall not be disturbed absent manifest error. Bradley v. Justiss Oil Co., Inc., 618 So.2d 646, 650 (La.App. 2 Cir.1993); Slate v. Travelers Ins. Co., 556 So.2d 903 (La.App. 3d Cir.1990). In Chelette v. American Guar. & Liability Ins., 480 So.2d 363 (La.App. 3 Cir.1985), this court set forth the standards generally used for awarding penalties and attorney's fees. In awarding statutory penalties, the test to be applied is whether the employer or his insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Attorney fees, on the other hand, are to be imposed if the insurer is found to be arbitrary, capricious or without probable cause in its failure to pay a claim within 60 days after receipt of written notice of the claim. Id.; LSA R.S. 23:1201.2. A worker's compensation claim is "reasonably controverted," precluding imposition of penalties, if the employer had sufficient factual and medical information upon which to base a decision to reduce or terminate benefits. Bradley, supra, at 651.
Menard v. Winn Dixie Louisiana, Inc., 93-1497, p. 14 (La.App. 3 Cir. 6/1/94), 640 So.2d 775, 784.
Defendant suggests that its disruption of claimant's benefits was supported by substantial evidence: Dr. Miller's opinion and the vocational "rehabilitation" efforts of Ms. McSpadden. Claimant, on the other hand, maintains that sanctions are due for the delays in medical treatment long overdue and for defendant's alleged resort to sham rehabilitation.
In this case, we agree with the claimant. Penalties and attorney fees are warranted in this case, if only because of the four-month delay between Dr. Miller's recommendation of surgery and Dr. Morrow's first evaluation of claimant's condition. The penal provisions of this state's workers' compensation act are applied not only against employers who untimely pay weekly benefits, but also against employers who fail to timely deliver competent medical attention. Savoy v. McDermott, Inc., 520 So.2d 888 (La.App. 3 Cir.1987); Dupre v. Sterling Plate Glass & Paint Co., 344 So.2d 1060 (La.App. 1 Cir.), writ denied, 347 So.2d 246 (La.1977).
Dr. Miller first saw Ms. Foster February 19, 1992, and diagnosed in her left wrist a condition called De Quervan's Syndrome. According to Dr. Miller's notes of that appointment, De Quervan's Syndrome is "usually remedial to conservative treatment but it might take some time for [Ms. Foster] to recover." Initially, Dr. Miller treated Ms. Foster conservatively, but when a splint, anti-inflammatory medications, and injections proved inadequate, Dr. Miller recommended surgery on April 6, 1992.
*801 Apparently, rather than provide the surgery recommended by Dr. Miller, to whom claimant had been referred by its own doctor, the employer referred claimant to a second orthopaedic surgeon of its choosing, Dr. Robert Morrow. Dr. Morrow first saw claimant on August 14, 1992. So concerned was Dr. Morrow that the already nine-month delay in proceeding with Ms. Foster's surgery had jeopardized her chance of a speedy and full recovery, that he recommended that the surgery long recommended by Dr. Miller take place "as soon as the surgery can be set up due to the longevity of her symptoms."
In light of the employer's untimely provision of medical benefits in this case, we affirm the hearing officer's penal awards and award an additional $3,500.00 for attorney fees in connection with this appeal.
Medical Expenses
Finally, the employer asks that we reverse an order by the hearing officer requiring that it provide claimant with certain medical treatment recommended by Dr. Morrow in his July 1995 post-trial report. That report suggested that claimant be referred to a specialist, Dr. Paul Hubbell, so that Dr. Hubbell might alleviate claimant's continuing objective symptoms associated with her De Quervain's Syndrome (swelling, reduced body temperature, and osteoporosis) and with possible complications from her release operation. According to Dr. Morrow, although success could not be guaranteed in Ms. Foster's case, it was worth a try since Dr. Hubbell had enjoyed previous success with other cases similar to claimant's.
In its appeal to this court, defendant does not suggest that any other cause may account for claimant's disabling symptoms. Rather, it complains that it should have been given an opportunity to cross-examine Dr. Morrow's July 1996 findings that further medical treatment was warranted.
Under the circumstances, we are unable to fault the hearing officer's reaction to Dr. Morrow's July report, which expressed considerable alarm at claimant's not having been treated sooner. An employer who fails to properly investigate its employee's medical status or who blindly relies upon an earlier medical report in the face of adverse medical information has only itself to blame for the consequences of its inaction. See generally, Nelson v. Roadway Exp., Inc., 588 So.2d 350 (La.1991); Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976); Kelone v. Pinecrest State School, 626 So.2d 89 (La.App. 3 Cir.1993). We conclude that it was not the hearing officer's action, but the employer's inaction (Dr. Miller had not seen Ms. Foster since August 1993) that motivated the hearing officer to act so decisively.
Consequently, we affirm the hearing officer's order for the recommended medical treatments and mileage reimbursement. Both are required by La.R.S. 23:1203, which provides in pertinent part:
A. In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal....
. . . . .
C. In addition, the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee.... [6]
*802 DECREE
For the foregoing reasons, the judgment of the hearing officer is affirmed, at defendant's costs, together with $3,500.00 in attorney fees in connection with this appeal.
AFFIRMED AS AMENDED AND RENDERED.
AMY, J., concurs.
NOTES
[1] In Dr. Miller's words, "When I see her back in six weeks' time, we will see what we can do as far as recommending perhaps a part-time job or light duties."
[2] In fact, in hindsight, it would seem that the apparently favorable trend reported by Dr. Miller had begun to reverse by January 29, 1993, when swelling in Ms. Foster's left forearm prompted Dr. Miller to recommend physical therapy.
[3] The consultant had allegedly located jobs that were both physically and geographically suitable for Ms. Foster's condition, and the SEB benefits included an offset of $5.00 per hour, the base pay of the positions allegedly available to claimant.
[4] Defendant's argument relies heavily on Dr. Miller's alleged belief in March 1993 that claimant was able to return to work; however, as noted above Dr. Miller's (subsequent) April 28 observation removed much of the persuasive force of the argument insofar as it only suggested the possibility that Ms. Foster might be able to return to the workforce.
While it is true that Dr. Miller's opinion in isolation arguably might have led the hearing officer to render judgment adverse to claimant, since arguably Dr. Miller was of the opinion that claimant could return to some sort of light duty work, the fact of the matter is that the hearing officer could have and did rely upon claimant's testimony and Dr. Morrow's opinion to arrive at an opposite conclusion, and she did so after observing firsthand claimant's disabled state.
[5] Ignoring Dr. Miller's June 9 indication that a "few more months" might be required before claimant would reach MMI, on the very next day, June 10, 1993, Ms. Doreen McSpadden, employed by FARA Healthcare Management of Lafayette, a pseudonym for Richard and Associates, set out to find work.
[6] In passing, we further note our disagreement with the suggestion contained in defendant's second assigned error that it was prejudiced by the hearing officer's decision to request of Dr. Morrow, one of defendant's experts, a medical opinion following the hearing.
It is a well established principle of law that in a worker's compensation case the trial court has authority to engage an expert witness to advise the court. Gary v. Dimmick Supply Co., 427 So.2d 33 (La.App. 3rd Cir.1983). Section 1123 of the worker's compensation statute provides in pertinent part that the reports of such court appointed experts "... shall be prima facie evidence of the facts therein stated...."
Latiolais v. Jernigan Bros., Inc., 520 So.2d 1126, 1129 (La.App. 3 Cir.1987).
The testimony of which defendant complains was obtained from defendant's own expert, and the same conclusion would have resulted even without Dr. Morrow's July 20 report, as the other evidence, particularly claimant's visible demeanor and the language of the other medical reports, alone would have warranted the conclusions reached by the hearing officer.
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415 F.Supp.2d 1015 (2006)
UNITED STATES of America, Plaintiff,
v.
Erick Ray TRIMBLE, Defendant.
No. 4:05 CR 3126.
United States District Court, D. Nebraska.
February 24, 2006.
David W. Stempson, Assistant United States Attorney, Lincoln, NE, for Plaintiff.
Michael J. Hansen, Federal Public Defender's Office, Lincoln, NE, for Defendant.
MEMORANDUM AND ORDER
KOPF, District Judge.
Erick Ray Trimble (Trimble) has filed a motion in limine. It seeks to deny to the government the use of a prior conviction as a predicate offense to a federal firearms charge. The government represents that if I grant the motion it will be unable to prove the charge against the defendant since it has no other predicate offenses.
After careful consideration of the record following an evidentiary hearing, I grant the defendant's motion. My reasons for doing so are briefly set forth below.
I. BACKGROUND
There are no facts in dispute. In the same vein, the procedural histories of this case and the underlying state case are not disputed either.
Trimble is charged in this court with possessing a semi-automatic pistol after being convicted of a "misdemeanor crime of domestic violence." (Filing 1.) This charge alleges a violation of 18 U.S.C. §§ 922(g)(9)[1] and 924(a)(2).
A "misdemeanor crime of domestic violence" is a creation of federal law, but it is premised upon specific types of prior criminal *1016 violations. The statutory definition of a "misdemeanor crime of domestic violence" states the following:
[T]he term "misdemeanor crime of domestic violence" means an offense that
(I) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
18 U.S.C. § 921(a)(33)(A).
In the year 2000, and after a plea of guilty in state court, the defendant was found to have violated section 9.12.010 of the Municipal Code of the City of Lincoln, Nebraska. (Government's Ex. 1, third unnumbered page and fifth unnumbered page.) That code section is classified under "Offenses Against the Person." (Defendant's Ex. 1.) In particular, the city ordinance makes criminal the following conduct:
9.12.010 Assault and Battery; Menacing Threats.
(a) It shall be unlawful for any person intentionally or knowingly to:
(1) Threaten another in a menacing manner; or
(2) Attempt to strike another person; Or
(3) Place another person in fear or apprehension of imminent bodily harm.
(b) It shall be unlawful for any person intentionally, knowingly, or recklessly to:
(1) Cause bodily injury to another person; or
(2) Strike another person.
(Defendant's Ex. 1.) The records of the underlying state case fail to show what conduct caused the defendant to be found guilty. (Government's Ex. 1.)
II. ANALYSIS
In order to prove the defendant guilty of unlawfully possessing a weapon, the government must prove that the defendant was previously found guilty of a "misdemeanor crime of domestic violence." In part, and as required by the literal terms of 18 U.S.C. § 921(a)(33)(A), the government must prove that the prior crime involved the "use or attempted use of physical force" or, in the alternative, "the threatened use of a deadly weapon." Id. See, e.g., United States v. Smith, 171 F.3d 617, 620 (8th Cir.1999) (applying 18 U.S.C. § 921(a)(33)(A); under an assault statute that included alternative sections criminalizing physical assaults and also threats, where the record showed that the defendant was charged with, and entered a guilty plea to, choking the victim and pushing her down, the requisite predicate offense was established).[2]
If the government can only prove that the defendant entered a plea of guilty to conduct that does not fall within section *1017 922(a)(33)(A), then the prior offense cannot serve as a predicate offense for the federal prosecution. Id. For example, if the prior conviction involved only a threat, without a deadly weapon, then that conviction is insufficient to trigger the federal weapons ban.
In order to prove the foregoing element (use or attempted use of physical force or threatened use of a deadly weapon), the government can only rely upon the official court record. That is, the government can only rely upon the charging document, plea transcript, judgment and other similar documents. See, e.g., United States v. Brun, 2004 WL 234401 at * 2-3 (D.Minn.2004)(when evaluating proof of "misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33)(A) resulting from a plea of guilty, court was limited to state court records including complaint, minutes, and transcript of plea taking proceeding). See also Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005) (for purposes of the Armed Career Criminal Act, predicate conviction involving plea of guilty must be proven by such things as charging documents, terms of plea agreement, or transcript of guilty plea proceedings, as opposed to police reports).
Turning then to the state court record, it is impossible to determine whether the defendant was found guilty of a crime that involved the use or attempted use of physical force or the threatened use of a deadly weapon. In contrast, one might as easily speculate that the defendant was convicted because he "[t]hreatened another in a menacing manner" in violation of code section 9.12.010(a)(1), or because he "recklessly" caused "bodily injury to another person" in violation of code section 9.12.010(b)(1). Neither of these situations necessarily involve the use or attempted use of physical force or the threatened use of a deadly weapon. The foregoing being true, the state court record in this case is legally insufficient to prove the predicate offense. See, e.g., United States v. Larson, 13 Fed.Appx. 439 (8th Cir.2001) (applying 18 U.S.C. § 921(a)(33)(A) to a guilty plea and affirming the district court's decision that the state court record was legally insufficient); United States v. Brun, 2004 WL 234401 at *3 (D.Minn.2004) (record involving guilty plea was insufficient under 18 U.S.C. § 921(a)(33)(A)). Therefore,
IT IS ORDERED that:
1. The defendant's motion in limine (filing 27) is granted as provided herein. The government may not use Government's Exhibit 1 or the conviction described by that exhibit to prove the predicate offense alleged in the indictment.
2. If the government desires to take an interlocutory appeal from this decision pursuant to 18 U.S.C. § 3731, it shall do so within the time provided by that statute.
3. Unless the government has taken an interlocutory appeal, it shall move to dismiss this case or show cause why it refuses to do so no later than April 3, 2006.
4. This case is removed from the trial calendar.
5. The time between today's date and April 3, 2006 is excluded in the interests of justice for computation purposes under the Speedy Trial Act. See 18 U.S.C. § 3161(h)(8)(A) & (B).
NOTES
[1] The indictment contains a scrivener's error and mistakenly cites 18 U.S.C. § 922(g)(91). (Filing 1.)
[2] In order to avoid confusion, I stress that the issue of physical force or threatened use of deadly force is different from the corollary issue of whether the defendant and the victim were in a domestic relationship. While the government must prove at a federal trial that the predicate offense involved a victim who was in a domestic relationship with the defendant, the government need not prove that the predicate conviction actually addressed that question. In other words, the relationship may be proven separately from, and subsequent to, the underlying conviction. Id.
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5 F.2d 838 (1925)
THE OVER THE TOP.
SCHROEDER
v.
BISSELL, Collector.
Admiralty Nos. 2796-2798; Equity No. 1746.
District Court, D. Connecticut.
February 26, 1925.
*839 John Buckley, U. S. Atty., and George H. Cohen, Asst. U. S. Atty., both of Hartford, Conn., for the United States.
Louis Halle, of New York City, for cargo.
John E. Macy, of Boston, Mass., for owner of schooner.
THOMAS, District Judge.
On November 7, 1924, Schroeder, the owner of the cargo, brought an application against the collector of customs for the Port of Connecticut to show cause why the cargo of liquor should not be returned to him. This application was returnable November 11, 1924. This proceeding was entered on the docket and is known as equity No. 1746. Following this rule to show cause and on November 12, 1924, the United States filed a libel of forfeiture against the schooner itself, and this proceeding is entered on the docket as No. 2797, in admiralty. On the same day, the government filed two libels against the cargo, and those cases are entered on the docket and known as No. 2796 and No. 2798, in admiralty. The trial on the issues raised by the libels and respective answers was had on January 16, 1925, and as these cases were tried together, they will all be discussed and decided in one opinion.
From the evidence I find the following facts established: On August 27, 1924, the schooner Over the Top, carrying a cargo of whisky and operating under the British flag and under British registry, cleared for Cuba from St. Johns, New Brunswick. It arrived at a point off the coast of Block Island several weeks prior to October 19, 1924. The schooner was chartered by one A. L. Schroeder, the owner of the cargo, who operates in Montreal but whose residence or citizenship is undisclosed.
On the 19th of October, 1924, at about 10 o'clock in the evening, the supercargo on board the schooner sold 25 cases of whisky for $550 to a special agent of the Internal Revenue Department. The sale was made in the presence of the captain, and thereupon the crew of the vessel, in the presence and under the direction of the captain, unloaded these cases of whisky and transferred the same to a sea sled employed in the government service. Both captain and supercargo knew that the whisky so transferred was to be transported to a point on the adjacent coast, but neither one of them knew that the sea sled or the men on it were in the government service. The transaction occurred at a point approximately 19 miles distant from the shore, or 115 degrees true from the southeast light of Block Island, and within one hour's running distance as computed by the possible speed of the sea sled when running empty and in the daytime. The sea sled thereupon proceeded to the United States coast guard cutter Tampa, and 23 of the cases were unloaded on board the Tampa, and the other two cases were landed at New London.
On the following day, Over the Top was seized by officers of the United States coast guard, and the captain and crew were placed under arrest, and the ship and her cargo were towed into the Port of New London and turned over to the collector of customs and are now in his custody.
I further find that the schooner had been hovering for some time off the coast of the United States at the point where she was seized, and that those in command were engaged during that period in selling liquor and delivering the same to boats proceeding from the coast of the United States and returning thereto. The testimony seems to support the conclusion that business was slow.
Upon these facts, the United States demands judgment decreeing the forfeiture and sale of the ship and cargo. The owner of the ship and the owner of the cargo have appeared separately, but the trial of *840 the three actions was consolidated, and, as will be seen in the sequel, the principles of law governing are applicable alike to both the schooner and cargo.
The government bases its claim of forfeiture upon the alleged violation of sections 447, 448, 450, 453, 585, 586, 593, and 594 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, §§ 5841e16, 5841e17, 5841e19, 5841e22, 5841h4, 5841h5, 5841h12-5841h14), as well as upon the provisions of the American-British Treaty which became effective May 22, 1924. The above sections of the Tariff Act provide as follows:
"Sec. 447. Unlading Place. It shall be unlawful to make entry of any vessel or to unlade the cargo or any part thereof of any vessel elsewhere than at a port of entry: Provided, that upon good cause therefor being shown, the Secretary of Commerce may permit entry of any vessel to be made at a place other than a port of entry designated by him, under such conditions as he shall prescribe: And provided further, that any vessel laden with merchandise in bulk may proceed after entry of such vessel to any place designated by the Secretary of the Treasury for the purpose of unlading such cargo, under the supervision of customs officers if the collector shall consider the same necessary, and in such case the compensation and expenses of such officers shall be reimbursed to the government by the party in interest.
"Sec. 448. Same Preliminary Entry Permit. Except as provided in section 441 of this act, no merchandise, passengers, or baggage shall be unladen from any vessel or vehicle arriving from a foreign port or place until entry of such vessel or report of the arrival of such vehicle has been made and a permit for the unlading of the same issued by the collector: Provided, that the master may make a preliminary entry of a vessel by making oath or affirmation to the truth of the statements contained in the vessel's manifest and delivering the manifest to the customs officer who boards such vessel, but the making of such preliminary entry shall not excuse the master from making formal entry of his vessel at the custom house, as provided by this act. After the entry, preliminary or otherwise, of any vessel or report of the arrival of any vehicle, the collector may issue a permit to the master of the vessel, or to the person in charge of the vehicle, to unlade merchandise or baggage, but merchandise or baggage so unladen shall be retained at the place of unlading until entry therefor is made and a permit for its delivery granted, and the owners of the vessel or vehicle from which any imported merchandise is unladen prior to entry of such merchandise shall be liable for the payment of the duties accruing on any part thereof that may be removed from the place of unlading without a permit therefor having been issued. Any merchandise or baggage so unladen from any vessel or vehicle for which entry is not made within forty-eight hours exclusive of Sunday and holidays from the time of the entry of the vessel or report of the vehicle, unless a longer time is granted by the collector, as provided in section 484, shall be sent to the public stores and held as unclaimed at the risk and expense of the consignee in the case of merchandise and of the owner in the case of baggage, until entry thereof is made."
"Sec. 450. Same Sundays and Holidays. No merchandise, baggage, or passengers arriving in the United States from any foreign port or place, and no bonded merchandise or baggage being transported from one port to another, shall be unladen from the carrying vessel or vehicle on Sunday, a holiday, or at night, except under special license granted by the collector under such regulations as the Secretary of the Treasury may prescribe."
"Sec. 453. Penalty for Violation. If any merchandise or baggage is laden on, or unladen from, any vessel, or vehicle without a special license or permit therefor issued by the collector, the master of such vessel or the person in charge of such vehicle and every other person who knowingly is concerned, or who aids therein, or in removing or otherwise securing such merchandise or baggage, shall each be liable to a penalty equal to the value of the merchandise or baggage so laden or unladen, and such merchandise or baggage shall be subject to forfeiture, and if the value thereof is $500 or more, the vessel or vehicle on or from which the same shall be laden or unladen shall be subject to forfeiture."
"Sec. 585. Departure Before Report or Entry. If any vessel or vehicle from a foreign port or place arrives within the limits of any collection district and departs or attempts to depart, except from stress of weather or other necessity, without making a report or entry under the Provisions of this Act, or if any merchandise is unladen therefrom before such report or entry, the master of such vessel shall be liable to a penalty of $5,000, and the person in charge of such vehicle shall be liable to a penalty of $500, and any such vessel or vehicle shall be *841 subject to forfeiture, and any customs or coast guard officer may cause such vessel or vehicle to be arrested and brought back to the most convenient port of the United States.
"Sec. 586. Unlawful Unlading Exception. The master of any vessel from a foreign port or place who allows any merchandise (including sea stores) to be unladen from such vessel at any time after its arrival within four leagues of the coast of the United States and before such vessel has come to the proper place for the discharge of such merchandise, and before he has received a permit to unlade, shall be liable to a penalty equal to twice the value of the merchandise but not less than $1,000, and such vessel and the merchandise shall be subject to seizure and forfeiture: Provided, that whenever any part of the cargo or stores of a vessel has been unladen or transshipped because of accident, stress of weather, or other necessity, the master of such vessel shall, as soon as possible thereafter, notify the collector of the district within which such unlading or transshipment has occurred, or the collector within the district at which such vessel shall first arrive thereafter, and shall furnish proof that such unlading or transshipment was made necessary by accident, stress of weather, or other unavoidable cause, and if the collector is satisfied that the unlading or transshipment was in fact due to accident, stress of weather, or other necessity the penalties above described shall not be incurred."
"Sec. 593. Smuggling and Clandestine Importations. (a) If any person knowingly and willfully, with intent to defraud the revenue of the United States, smuggles, or clandestinely introduces, into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the custom house any false, forged, or fraudulent invoice, every such person, his, her, or their aidors and abettors, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding $5,000, or imprisoned for any term of time not exceeding two years, or both, at the discretion of the court.
"(b) If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury.
"Sec. 594. Seizure of Vessels and Vehicles. Whenever a vessel or vehicle, or the owner or master, conductor, driver, or other person in charge thereof, has become subject to a penalty for violation of the customs revenue laws of the United States, such vessel or vehicle shall be held for the payment of such penalty and may be seized and proceeded against summarily by libel to recover the same: Provided, that no vessel or vehicle used by any person as a common carrier in the transaction of business as such common carrier shall be so held or subject to seizure or forfeiture under the customs laws, unless it shall appear that the owner or master of such vessel or the conductor, driver, or other person in charge of such vehicle was at the time of the alleged illegal act a consenting party or privy thereto."
So much of the Treaty as is necessary for consideration is as follows:
"Article I.
"The high contracting parties declare that it is their firm intention to uphold the principle that 3 marine miles extending from the coastline outwards and measured from low-water mark constitute the proper limits of territorial waters."
"Article II, Sections 1, 2, and 3.
"(1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under the British flag outside the limits of territorial waters by the authorities of the United States, its territories or possessions in order that enquiries may be addressed to those on board and an examination be made of the ship's papers for the purpose of ascertaining whether the vessel or those on board are endeavoring to import or have imported alcoholic beverages into the United States, its territories or possessions in violation of the laws there in force. When such enquiries and examination show a reasonable ground for suspicion, a search of the vessel may be instituted.
"(2) If there is reasonable cause for belief *842 that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States, its territories or possessions prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its territories or possessions for adjudication in accordance with such laws.
"(3) The rights conferred by this article shall not be exercised at a greater distance from the coast of the United States, its territories, or possessions than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense. In cases, however, in which the liquor is intended to be conveyed to the United States, its territories or possessions by a vessel other than the one boarded and searched, it shall be the speed of such other vessel and not the speed of the vessel boarded, which shall determine the distance from the coast at which the right under this article can be exercised."
But before we proceed to discuss the above-quoted sections of the Tariff Act as well as the treaty, it may be well to dispose of one of the contentions made by counsel in behalf of the cargo and the schooner.
The proposition is advanced that, regardless of our municipal legislation, the acts complained of could not constitute offenses against the United States when committed by foreign nationals, on foreign bottoms, on the high seas at a point beyond the territorial jurisdiction of the country. Well-known principles of international practice are invoked in support of this contention accompanied with the citation of authority. Upon careful consideration, however, I am led to conclude that a misconception exists here as to the status, in a federal forum, of so-called international law when that law encounters a municipal enactment.
If we assume for the present that the national legislation has, by its terms, made the acts complained of a crime against the United States even when committed on the high seas by foreign nationals upon a ship of foreign registry, then there is no discretion vested in the federal court, once it obtains jurisdiction, to decline enforcement. International practice is law only in so far as we adopt it, and like all common or statute law it bends to the will of the Congress. It is not the function of courts to annul legislation; it is their duty to interpret and by their judicial decrees to enforce it and even when an act of Congress is declared invalid, it is only because the basic law is being enforced in that declaration. There is one ground only upon which a federal court may refuse to enforce an act of Congress and that is when the act is held to be unconstitutional. The act may contravene recognized principles of international comity, but that affords no more basis for judicial disregard of it than it does for executive disregard of it. These libels, therefore, cannot be attacked upon the ground that the territorial jurisdiction of the United States cannot be extended beyond the three-mile sea zone under international law.
If, however, the court has no option to refuse the enforcement of legislation in contravention of principles of international law, it does not follow that in construing the terms and provisions of a statute it may not assume that such principles were on the national conscience and that the congressional act did not deliberately intend to infringe them. In other words, unless it unmistakably appears that a congressional act was intended to be in disregard of a principle of international comity, the presumption is that it was intended to be in conformity with it. It is with such a principle in mind that we now proceed to an examination of the legislation upon which the government relies.
Section 447 of the Tariff Act of 1922, quoted supra, makes it unlawful for the vessel to make entry of or to unlade any part of its cargo elsewhere than at a port of entry. Part of the cargo of Over the Top was unloaded on the high seas, and the government contends that the statute was thereby violated. To me it seems that the statute was intended to prevent entry or unlading at a port or place in the country other than a port of entry. It had no reference to unlading on the seas even when done within the three-mile zone. But waiving that question, it is to be noted that the act is phrased in general language and that it bespeaks no suggestion of territorial limitation. The proposition has not heretofore been advanced that for that reason the act has attempted to extend the territorial jurisdiction of the United States over the whole earth. Almost all criminal statutes, or statutes prohibiting defined conduct, are phrased in general language without mention of territorial limitation. But they are all to be read in the light of the principle that jurisdiction is not extraterritorial and that the municipal legislation is not attempting to regulate or to punish conduct performed outside of the national domain. For example, the statutes of Connecticut do not forbid larceny in Connecticut they forbid larceny. The statutes of the United States do not forbid counterfeiting *843 in the United States they forbid counterfeiting. That the Congress may, in disregard of the law of nations, prohibit acts by foreign nationals not committed within our domain, has already been conceded; but unless such intent clearly appears from the language of the statute such intent is not to be presumed.
It would seem that the libelant does not take the view that the acts complained of constituted an infraction of our law by the very force of the language of the statute, else there would be no reason to invoke the aid of the provisions of American-British Treaty. It is obvious that if the unlading of the whisky 19 or 20 miles out at sea constituted a violation of section 447 of the Tariff Act, then such violation was justiciable and punishable irrespective of the provisions of the treaty. The treaty would serve to obviate diplomatic embarrassments arising out of the seizure of a British vessel on the high seas, but it would be useless for the purposes of determining the intent of the provisions of section 447 of the Tariff Act.
The same considerations apply with equal force to the provisions of sections 448, 450, 453, 585, 593, and 594 of the Tariff Act of 1922. These enactments of the Congress are implicit with the proviso that the acts therein denounced be accomplished within the territory of the United States. No attempt is there discernible to extend the legislative jurisdiction of the United States beyond its boundaries. Of utmost significance, therefore, is the language of section 586 of the act providing that the master of any vessel from a foreign port, who allows any merchandise to be unladen from such vessel at any time after its arrival within four leagues of the coast of the United States, and before such vessel has come to the proper place for the discharge of such merchandise, and before permission has been given to unlade, shall be liable to a penalty, and the vessel and the merchandise shall be subject to seizure and forfeiture. It appears to me that this section has a most important, if not a determinative, bearing upon the point under discussion. This enactment has been part of our legislation for over a hundred years. Here we have a distinct extension of our sea jurisdiction to a point 12 miles from the coast an assertion of authority which may perhaps clash with international practice, but which, whether challenged or not, is unmistakable, and which, therefore, it is the business of our courts to enforce. Had the master and super cargo of Over the Top been guilty of unlading the liquor at a point within this 12-mile zone, it may be that we would have had no difficulty in sustaining the libels.
Indeed, the applicability of section 593 of the Tariff Act to the case at bar has already been negatively determined in the authoritative opinion of the Supreme Court in Keck v. United States, 172 U. S. 434, 19 S. Ct. 254, 43 L. Ed. 505. The statute which was the subject of construction in that case was substantially the same in language as section 593 now under consideration, and there it was held that the offense denounced by the statute could not be accomplished until the customs barrier had been passed, and therefore, even though goods intended to be smuggled were brought within the three-mile sea zone, that, nevertheless, smuggling was not perpetrated until the goods were landed and passed into the country.
My conclusion, then, is that as no statute embracing the subject-matter of sections 447, 448, 450, 453, 585, 586, 593, and 594 of the Tariff Act of 1922 has extended our territorial jurisdiction to a point on the high seas distant 19 miles from our coast, conduct which would have been in violation of these sections if performed within our territory cannot constitute an offense against the United States when performed at such a distance by foreign nationals on ships of foreign registry. If, for the purpose of our treasury, we can extend our sea jurisdiction to a point four leagues from the coast, I see no reason why we cannot extend it four leagues more. I merely observe that we have not done so yet.
I now come to the provisions of the American-British Treaty, which was obviously contracted for the purpose of preventing hovering ships from supplying intoxicating liquor to carriers running between the ships and the shore. There can be no question as to the general intent of the treaty and as to what was supposed to have been accomplished by its provisions. But it is one thing to apprehend the purpose of an act and quite another to determine that the language of the act is effective. The treaty in question provides that no objections will be raised by the British government to the boarding of vessels flying the British flag outside the territorial waters of the United States for the purpose of investigating the cargo in order to determine whether the vessel or those on board are endeavoring to import alcoholic beverages into the United States in violation of our laws. The British government further *844 does not object to the seizure of such a vessel found violating our law and to its disposition in accordance with such laws. The treaty further provides that the zone of operations by the United States is extended to a point one hour's running distance from our coast, wholly irrespective of the mileage coverable within such hour, and that where the liquor is intended to be conveyed to the coast by a vessel other than the one boarded and searched it is the speed of that vessel which is to determine the distance.
I have already found that the possible speed of the sea sled under the conditions disclosed by the testimony was about 30 knots an hour. But the evidence showed that this speed was made in the daylight when the boat carried no load, and when it skidded along over the top of the water with its stern only displacing water and while running from New London to Point Judith Gas Buoy and along the lee of the land. There is absolutely no evidence in the record as to how far the sea sled could travel in an hour and in the dark with 25 cases of liquor and three men aboard as on the night it left the schooner Over the Top with wind, weather, and tide as it in fact existed on the night in question.
Now the treaty provides that the right of seizure cannot be exercised at a greater distance from the coast "than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense." As we are dealing here with fines and forfeitures, I cannot assume that this language was intended to cover an hypothetical case; that the seizure would be treated as legal if accomplished at a point constituting the greatest distance which the unladen ship could traverse in one hour at her maximum speed under the most favorable conditions of wind and tide. It seems to me that a rational construction requires us to measure the distance by the actual speed of the boat accomplished from the point of capture to the nearest available point on the coast in normal wind and tide and under the same conditions as pertain at the time of the seizure. Nor can I see any reason for applying any different rule when the distance is to be measured by the speed of the carrier from ship to coast. It is the speed of the boat conveying liquor, and when it is engaged in conveying liquor to the United States, that must be determined. When conveying liquor, her speed may be below that of her speed when empty.
That such jurisdictional facts may be exceedingly difficult of proof, and that penalties and forfeitures are to be determined by a standard as uncertain as the equity which once was said to vary with the size of the chancellor's foot, may be a matter of regret; but it is the business of the courts to construe treaties and not to make them. But it is to be noted in this particular case the sea sled, owned by the government and operated by government officials, had full opportunity to time its run laden with its crew and 25 cases of liquor on the night in question and so present in court reliable and satisfactory evidence. Instead, they turned and made for the Tampa, and on it unloaded 23 cases and carried only 2 cases to New London. And no explanation was offered for such operations.
There being no evidence before me from which I can determine the speed of the sea sled when laden with the 25 cases of liquor, and no evidence to meet the provisions of the treaty that, "In cases, however, in which the liquor is intended to be conveyed to the United States * * * by a vessel other than the one boarded and searched, it shall be the speed of such other vessel, * * * which shall determine the distance from the coast at which the right under this article can be exercised" (article 2, § 3), I would feel obliged for this reason alone to decree a dismissal of the libels. But I am not unmindful of the possibility of error in my construction of this part of the treaty and a much larger question looms in the background.
It must be noted that the treaty does not define the acts constituting an offense against the laws of the United States prohibiting the importation of alcoholic beverages. These acts are defined in the statute. If reasonable grounds exist for believing that a vessel under British registry is in fact guilty of contravening the Prohibition Law (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), then our government may seize it if it is within the specified area, and when seized its fate may then be determined in accordance with our laws. If it is not within the specified area, it may not even be seized. But if it is within the specified area, it does not follow that it is for that reason violating our laws.
Now the grant by one sovereign to another of the right to seize its nationals upon the high seas without process and by force majeure for crimes committed by those nationals against the offended sovereign, by no means declares that those acts when committed on the high seas constitute such crimes. If, before this treaty was contracted, the unlading of merchandise by a ship of British *845 registry at a point more than four leagues removed from the coast of the United States did not constitute a crime against the United States (and there appears to be no contention that it did), then the treaty could not and did not make it a crime.
In support of its contention, the government cites and relies upon United States v. The Pictonian, 3 F. (2d) 145, recently decided in the Eastern district of New York, where it was held that the American-British Treaty did, as to ships of British registry, extend the operation of the criminal laws of the United States to the shifting line designated in the treaty. I have carefully read Judge Campbell's opinion and find myself unable to agree with its reasoning. The learned judge speaks of the treaty as self-executing. The significance of the phrase in this connection is somewhat obscure. As a treaty, there was no need of congressional legislation to make it effective, and in this sense all treaties are self-executing. But if it was the intent of the government to make it a crime for a ship of British registry to unlade liquor within a sea zone on our coast, traversible in one hour, then that intent was not effectuated by the mere execution of the treaty. It is not the function of treaties to enact the fiscal or criminal law of a nation. For this purpose no treaty is self-executing. Congress may be under a duty to enact that which has been agreed upon by treaty, but duty and its performance are two separate and distinct things. Nor is there any doubt that the treaty making power has its limitations. What these are has never been defined, perhaps never need be defined. Certain it is that no part of the criminal law of this country has ever been enacted by treaty.
Illustrations of congressional effectuation of treaties are plentiful. All treaties requiring payments of money have been followed by acts of Congress appropriating the amount. The treaties were the supreme law of the land, but they were ineffective to draw a dollar from the treasury. The Russian-American Treaty of 1824 (8 Stat. 302) against selling liquors to the Alaskan natives was followed by the necessary penal legislation by the Congress. The treaty with various powers made in 1847 defining piracy and declaring its punishment, received similar reinforcing enactments. The same was true of the Treaty of 1862 with Great Britain (12 Stat. 1225), suppressing the slave trade; of the Treaty of 1884 (24 Stat. 989), with various powers imposing fines and penalties for the protection of submarine cables; and of the Treaty of 1912 (37 Stat. 1542), for the protection of seals in the North Pacific Ocean.
The instances just cited indicate the practice of congressional action in order to effectuate the penal provisions of a treaty, and I have no doubt that such practice is necessary in order to accomplish the purposes of the treaties. It happens that the American-British Treaty here under consideration does not declare it a crime for a British national on a ship of British registry to sell liquor for purposes of importation into this country within one hour's running distance of our shore. Nor does the treaty forbid such an act. But even if such conduct had been prohibited by the terms of the treaty, no indictment could lie for transgressing that prohibition. If an indictment could not lie for violating the direct command of the Eighteenth Amendment to the Constitution until the Congress had defined the offense and proclaimed the penalty, then the fiat of a treaty would be inadequate for such a purpose. No distinction exists here between the necessary basis of an indictment and that of a libel for forfeiture. If the facts do not warrant an indictment, they do not warrant a penalty.
In this connection it may be well to emphasize the general nature of the provisions of the Tariff Act relied upon by the libelant. In the instance at bar, we happen to be dealing with liquor, but the legislation which is invoked is by no means concerned exclusively with this commodity. A British or French ship unlading coffee or coal within the 12-mile limit, and before entry and permission to unlade, would be just as guilty of violating these acts as if she were unlading liquor. Neither her nationality nor the nature of her cargo would have any bearing on the issues.
Whether therefore the Senate and the Executive may constitutionally enact criminal legislation by the device of a mere treaty is a question which fortunately we need not discuss. It is sufficient to conclude that the American-British Treaty did not in fact enact new criminal legislation.
There are other considerations which should be noted. It is conceded that a sale was made; that the supercargo sold the cases of liquor to the government agent aboard the government sea sled and received $550. This transaction was on the high seas and 7 miles beyond the 12-mile limit and at a place where the transaction was valid. Title therefore passed. Can it be claimed that there was a violation either by schooner or cargo (for these libels are against them) of any *846 law of the United States? After the sale, title to the goods vested in the government men. Under section 593 is it claimed they smuggled the goods into this country? If they did not, there was no violation of United States law certainly none by cargo or schooner or even by the men aboard who made the sale, as they all lost title when the goods were bought and paid for, and, of course, no one claims the government men smuggled the liquor. The whole situation seems a perfect paradox. The respondents plead entrapment as a defense, and urge it strenuously in the brief. In view of the conclusions above reached, it is not necessary to discuss at length this question. It is sufficient to say that there is much merit in the defense when considered in connection with the above proposition that when the title to the goods passed and became vested in the purchasers, the respondents could not smuggle what they sold, and which they would not have sold had they not been importuned by the men on the sea sled.
The considerations as above expressed therefore impel the conclusion that there is no legal basis for these libels, and it follows that they must be and the same are dismissed. Submit findings and decree.
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Ludwig v Van Horn (2019 NY Slip Op 08842)
Ludwig v Van Horn
2019 NY Slip Op 08842
Decided on December 11, 2019
Appellate Division, Second 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 December 11, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
HECTOR D. LASALLE, JJ.
2017-04894
(Index No. 5178/16)
[*1]Rudolph Ludwig, appellant,
vCarl Van Horn, et al., respondents (and a third-party action).
Charles Kannebecker, Port Jervis, NY, for appellant.
Thomas K. Moore (Andrea G. Sawyers, Melville, NY [David R. Holland], of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated April 21, 2017. The order, insofar as appealed from, granted the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff and the defendant Carl Van Horn were involved in a motor vehicle accident on August 3, 2013, in Westfall Township, Pennsylvania. Van Horn was driving a vehicle owned by the defendant Charles Hockenberry, Jr. The plaintiff was a resident of Pennsylvania, while the defendants were residents of New York.
On July 29, 2016, almost three years after the accident, the plaintiff filed a summons and complaint in Orange County, New York, against Van Horn and Hockenberry, individually and doing business as Hockenberry's Garage. The defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the Pennsylvania statute of limitations. By order dated April 21, 2017, the Supreme Court granted the defendants' motion. The plaintiff appeals.
"When a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation periods of both New York and the jurisdiction where the cause of action accrued" (Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528; Grinbaum v Klisivitch, 146 AD3d 755, 755-756). "When borrowing the foreign jurisdiction's statute of limitations, its tolling provisions are also borrowed" (Grynberg v Giffen, 119 AD3d 526, 527; see GML, Inc. v Cinque & Cinque, P.C., 9 NY3d 949, 951; Childs v Brandon, 60 NY2d 927, 929).
Although the plaintiff commenced the action within the three-year statute of limitations applicable to personal injury actions in New York (see CPLR 214[5]), the applicable statute of limitations in Pennsylvania, which is two years, had expired at the time the action was commenced (42 Pa.C.S.A. § 5524[7]). Further, the action was not tolled under Pennsylvania law. While Pennsylvania law provides for the tolling of the statute of limitations where a defendant [*2]departs from that state after a cause of action accrues and remains continuously absent for more than four months (see 42 Pa.C.S.A. § 5532[a]), this tolling provision does not apply "[w]hile jurisdiction over the person of the defendant can be obtained without personal delivery of process to him within [Pennsylvania]" (42 Pa.C.S.A. § 5532[b][3]). Here, jurisdiction over the defendants could be obtained through the use of Pennsylvania's long-arm statute (see 42 Pa.C.S.A. § 5322[3]), and service of process in the manner provided for under New York law (see Pa. R.C.P. 404[3]). Thus, the Pennsylvania statute of limitations was not tolled (see 42 Pa.C.S.A. § 5532[b][3]). Contrary to the plaintiff's contention, there was no question of fact as to whether the defendants could not, with reasonable diligence, have been located outside Pennsylvania for purposes of service of process so as to render the Pennsylvania tolling provision applicable (cf. Johnson v Stuenzi, 696 A2d 237 [Pa Super Ct]). Rather, the complaint was addressed to Van Horn at the New York address listed in the police accident report and Hockenberry was served at Hockenberry's Garage, located in the town in New York that was listed in the police report.
The plaintiff's remaining contention is without merit.
Accordingly, we agree with the Supreme Court's determination granting the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
BALKIN, J.P., COHEN, MILLER and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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925 F.2d 1475
U.S.v.Seales***
NO. 90-7265
United States Court of Appeals,Eleventh Circuit.
FEB 04, 1991
1
Appeal From: S.D.Ala.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case
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T.C. Memo. 2005-127
UNITED STATES TAX COURT
DAVID TAYLOR ENTERPRISES, INC. & SUBSIDIARIES, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7698-03. Filed May 31, 2005.
Lawrence Sherlock and Juan F. Vasquez, Jr., for petitioner.
Derek B. Matta, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
KROUPA, Judge: Respondent determined deficiencies of
$431,1141 for 19992 and $113,390 for 2000 in petitioner’s Federal
income taxes. The issue to be decided is whether losses realized
1
All amounts have been rounded to the nearest dollar.
2
Petitioner’s tax year ended June 30.
- 2 -
on the sale of classic cars during the years at issue are capital
or ordinary losses under section 1221(a).3 Resolution of this
issue depends on whether the classic cars were held primarily for
sale to customers in the ordinary course of business or were held
instead for investment purposes. We hold that petitioner held
the classic cars for sale to customers.
FINDINGS OF FACT
The parties have stipulated some facts. The stipulation of
facts and accompanying exhibits are incorporated by this
reference and are so found.
David Taylor Enterprises
Petitioner is an affiliated group of corporations that files
consolidated income tax returns. See sec. 1501. The common
parent of the affiliated group is David Taylor Enterprises, Inc.
(DTE). Until his death, David Taylor, Sr. (Mr. Taylor) owned all
the shares of DTE. DTE’s principal place of business was
Houston, Texas, at the time it filed the petition.
David Taylor Cadillac
Cars were Mr. Taylor’s love and passion, and he was involved
in the car business throughout his life. When he was a child,
Mr. Taylor’s father was an Oldsmobile-Cadillac dealer in Port
3
All section references are to the Internal Revenue Code in
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
- 3 -
Arthur, Texas. From 1975 until his untimely death in 1997, Mr.
Taylor was a car dealer and engaged in the trade or business of
selling cars. Mr. Taylor was also a member of the Houston Auto
Dealers Association, the Texas Auto Dealers Association, and the
National Auto Dealers Association.
In 1974, Mr. Taylor sold a Buick Dealership in Beaumont,
Texas, and a year later acquired the right from General Motors to
open a Cadillac dealership in Houston, Texas, known as David
Taylor Cadillac (the dealership). The dealership was one of the
largest Cadillac dealers in the world, and was, at the time of
trial, a subsidiary of petitioner. The dealership is the main
focus of our case.
The dealership owned new, used, and classic cars. The new
and used cars were located in Houston, Texas, while the classic
cars were located in Galveston, Texas.
Classic Cars
The dealership began to acquire classic cars in 1979.4
Initially, the dealership purchased a 1931 Cadillac Roadster for
$40,000. The dealership then purchased two classic cars in the
mid-1980s, a 1934 Ford Roadster and a 1932 Ford Victoria, that
came as kits and required assemblage. After the initial
purchases, the dealership acquired additional classic cars,
4
Classic cars are cars whose model year is generally 1970 or
before. The dealership applied for exhibition license plates for
its classic cars, indicating the cars were at least 25 years old.
- 4 -
either by purchase, exchange of one classic car for another, or
as trade-ins from new car customers to reduce the purchase price
of a new Cadillac or Buick. The dealership’s purpose in
acquiring the classic cars was to enhance their value by
restoring them and selling them at a premium price.5
The dealership viewed potential buyers of the classic cars
as a select group of mostly wealthy classic car enthusiasts, and
designed a strategy to reach them. The dealership’s strategy
involved building the dealership’s reputation as a source of high
quality classic cars by entering the cars in auctions, auto
shows, classic car competitions, and displaying them at
promotional events for the dealership or third parties. For
instance, the classic cars were displayed at events frequented by
wealthy individuals, like the Alley Theatre and the annual
Lakewood Yacht Club Wooden Keels and Classic Wheels event. The
classic cars were also prominently advertised in brochures,
booklets, newspapers, and magazine articles, and a placard
describing each car was also placed on each vehicle.
Potential buyers of the classic cars were directed to Mr.
Taylor or a broker the dealership hired after Mr. Taylor died.
5
The classic cars were insured, and the insurance policy
covered “all owned antique, classic and special interest cars
held for sale by the insured.” The classic cars were also taxed
by local property taxing authorities as “motor vehicle
inventory.”
- 5 -
Until his death, Mr. Taylor personally negotiated the sales of
the classic cars.
To command a premium price for the classic cars, a priority
for the dealership and Mr. Taylor, the classic cars had to be
restored to classic condition, maintained, and driveable at any
time by potential customers. Restoring the cars involved a long
process of fundamentally rebuilding the car to near perfection.
After the cars were fully restored, the dealership carefully
maintained them by setting the cars on jack stands so the tires
maintained air pressure, starting the engines every 6 weeks, and
changing the oil every 6 months.
In addition, the dealership kept the classic cars indoors to
protect them from inclement weather. Initially, the classic cars
were kept at the dealership or in Mr. Taylor’s garage, and later
were moved to a building the dealership bought that was located
across the street from its main showroom. The cars were
eventually moved to three adjacent buildings in Galveston, Texas
(the Galveston property)6 that the dealership purchased to
provide the classic cars with a climate-controlled environment
and to expose them to the public.7
6
The Galveston property was acquired by David Taylor Realty,
Inc., another member of the affiliated group.
7
Petitioner decided to operate the Galveston property as a
museum and charge admission. Petitioner named the property the
David Taylor Classic Car Museum. Operating the Galveston
(continued...)
- 6 -
The dealership intended to recoup its costs of restoring the
classic cars by selling them at a profit. In 1990, the
dealership sold a Packard convertible for $330,000, earning a
profit of $143,340. The dealership made three more sales that
year, and three in the succeeding year.8 The dealership
thereafter strategically began acquiring more classic cars and
increasing its participation in promotional events to generate
interest, win competitions, and service the wealthy clientele the
dealership hoped would follow. This plan was abruptly derailed
in 1997 when Mr. Taylor died, within a month of being diagnosed
with lung cancer.
Mr. Taylor’s shares in the dealership represented most of
the value of his estate. To raise money for the estate tax, Mr.
Taylor’s estate requested a liquidation of the DTE shares.
Petitioner agreed to a section 303 stock redemption and resolved
to sell the classic cars to raise the necessary capital. The
dealership hired a broker and sold approximately 69 classic cars
during 1999 and 2000, the years at issue.
7
(...continued)
property as a museum allowed the dealership to recoup some of the
overhead costs for maintaining and storing the cars, while still
holding them for sale. The museum was open to the public from
1989 through 1999.
8
The dealership sold a total of 11 vehicles and made 6
trades prior to the years at issue.
- 7 -
The dealership accounted for the new, used, and classic cars
consistently. Every car was treated as inventory and assigned an
individual stock number. Costs associated with the purchase and
restoration of the classic cars were posted to the car’s stock
number, which allowed a running total of the dealership’s cost
basis in each car. The dealership did not deduct any costs as
they were incurred, nor did the dealership depreciate any of the
cars. No part of the dealership’s cost basis in any classic car
was recognized except when the car was sold or disposed of. The
dealership included the sales price of the car, whether new,
used, or classic, in the dealership’s gross receipts and included
all accumulated costs of each specific car in the costs of goods
sold.
Whenever a car was sold, whether new, used, or classic, the
dealership reported the gain or loss on the sale at ordinary
income rates. For all years prior to the years at issue, the
dealership reported sales on 11 classic cars at ordinary income
rates. During the years at issue, the dealership reported sales
on 69 cars, also at ordinary income rates.9
9
For example, the dealership acquired the 1939 Packard in
1989, sold it for $330,000 in 1990, and had total accumulated
costs of $160,260. After paying a commission on the sale of
$26,400, the dealership reported an ordinary gain of $143,340 on
its tax return for the tax year ended June 30, 1991.
- 8 -
Petitioner timely filed its Forms 1120, U.S. Corporation
Income Tax Return, for 1999 and 2000, reporting the losses at
issue. Upon examination of those returns, respondent issued a
Notice of Deficiency to petitioner on February 25, 2003,
determining that the classic cars were held for investment
purposes and should be accorded capital loss treatment, not
ordinary loss.
Petitioner filed a petition contesting respondent’s
determination and argued that the classic cars were held for sale
and should be accorded ordinary income treatment. We must
therefore determine whether the losses from the sales of the
classic cars are ordinary or capital losses.
OPINION
We are asked to decide whether the dealership held the
classic cars for investment or for sale. If the dealership held
the classic cars as capital assets for investment, then we must
sustain respondent’s determination.10 Conversely, if the
10
A “capital asset” is broadly defined as property held by
the taxpayer, whether or not connected with his trade or
business, subject to a number of exceptions. Sec. 1221(a).
These exceptions include stock in trade, property of a kind that
is properly included in a taxpayer’s inventory, and property held
primarily for sale to customers in the ordinary course of a
taxpayer’s trade or business. Sec. 1221(a)(1).
The U.S. Supreme Court has defined “primarily” as used in
sec. 1221(1) to mean “principally” or “of first importance.”
Malat v. Riddell, 383 U.S. 569, 572 (1966); Biedenharn Realty Co.
v. United States, 526 F.2d 409, 422-423 (5th Cir. 1976). The
(continued...)
- 9 -
dealership held the classic cars for sale to customers, then we
must find for petitioner. We begin with who has the burden of
proof.
A. Burden of Proof
The Commissioner’s determination in the notice of deficiency
is generally presumed to be correct, and the taxpayer bears the
burden of proving otherwise. Rule 142(a); Welch v. Helvering,
290 U.S. 111, 115 (1933). If a taxpayer introduces credible
evidence with respect to a factual issue relevant to ascertaining
the taxpayer’s tax liability, however, the burden shifts to the
Commissioner with respect to that issue, assuming the taxpayer
meets certain other requirements.11 Sec. 7491(a)(1). The burden
of proof does not shift unless the taxpayer has complied with the
substantiation requirements, maintained required records, and
cooperated with the Commissioner’s reasonable requests for
witnesses, information, and meetings. Sec. 7491(a)(2)(A) and
(B). The taxpayer has the burden of establishing that each
requirement of section 7491(a)(2) has been met. Higbee v.
Commissioner, 116 T.C. 438 (2001). Respondent concedes that
10
(...continued)
question whether property is held primarily for sale to customers
in the ordinary course of one's business is "purely factual."
Pritchett v. Commissioner, 63 T.C. 149, 162 (1974).
11
Sec. 7491(a) applies to examinations commenced after July
22, 1998, and therefore applies to this case involving tax years
1999 and 2000.
- 10 -
petitioner has met the cooperation and substantiation
requirements, but argues that petitioner has not met the credible
evidence requirement. We disagree.
Credible evidence means the quality of evidence the Court
would find sufficient upon which to base a decision on the issue
if no contrary evidence were submitted. See H. Rept. 105-599, at
240-241 (1998), 1998-3 C.B. 747, 994-995; see also Blodgett v.
Commissioner, 394 F.3d 1030 (8th Cir. 2005), affg. T.C. Memo.
2003-212; Edwards v. Commissioner, T.C. Memo. 2005-52.
Petitioner introduced evidence with respect to the factual
issue in the case, through witness testimony and business records
of the dealership, sufficient, in the absence of contrary
evidence, to prove by a preponderance of the evidence that the
classic cars were inventory held primarily for sale to customers
in the ordinary course of business. Specifically, petitioner
produced evidence that it advertised the classic cars for sale,
sold a substantial number of classic cars, and consistently
reported the sales at ordinary income rates and consistently
treated the classic cars as inventory on its corporate books. We
find this evidence credible as to the factual issue in dispute
and thus sufficient to shift the burden to respondent under
- 11 -
section 7491 to prove the classic cars were held as an investment
and subject to capital treatment.12
B. Williford Factors
Our Court generally uses a number of factors to determine
whether property is held for investment or held for sale. See
Williford v. Commissioner, T.C. Memo. 1992-450.13 In Williford,
we examined whether a taxpayer’s art collection was held
primarily for sale to customers in the ordinary course of
business. The taxpayer in Williford was a part-time art dealer
12
Petitioner also argues that respondent must abide by Rev.
Rul. 75-538, 1975-2 C.B. 35, which presumes that a taxpayer
engaged in the trade or business of selling motor vehicles holds
its vehicles primarily for sale, and not as an investment. We
find it unnecessary to address Rev. Rul. 75-538, supra, because
we find that the evidence favors petitioner’s position as to the
character of the classic cars, irrespective of the presumption.
13
Other courts use similar factors to determine whether
property is held for investment or for sale. For example, the
Court of Appeals for the Fifth Circuit, where appeal will lie,
uses the following factors: (1) The nature and purpose of the
acquisition of the property and the duration of the ownership;
(2) the extent and nature of the taxpayer’s efforts to sell the
property; (3) the number, extent, continuity and substantiality
of the sales; (4) the extent of subdividing, developing, and
advertising to increase sales; (5) the use of a business office
for the sale of the property; (6) the character and degree of
supervision or control exercised by the taxpayer over any
representative selling the property; and (7) the time and effort
the taxpayer habitually devoted to the sales. United States v.
Winthrop, 417 F.2d 905, 909-910 (5th Cir. 1969) (citing Smith v.
Dunn, 224 F.2d 353, 356 (5th Cir. 1955)); see also Howell v.
Commissioner, 57 T.C. 546, 554 (1972) (six factors); Maddux
Constr. Co. v. Commissioner, 54 T.C. 1278, 1284 (1970) (nine
factors). The factors are usually used to classify real estate.
In Williford v. Commissioner, supra, the factors were used to
classify artwork. We have found no cases where the factors were
used to classify cars.
- 12 -
and bought some paintings for resale and others for investment.
The taxpayer kept separate his private art collection and the
paintings for resale. The taxpayer classified the paintings in
his private collection as capital assets and reported capital
gains on the sale of these paintings. The Commissioner objected
to the capital treatment, arguing that the taxpayer was an art
dealer and derived the sales proceeds in the ordinary course of
business. The Tax Court agreed with the taxpayer and held that
the paintings were capital assets held for investment.
The Court used eight factors to analyze whether the art
collection was held primarily for sale to customers in the
ordinary course of the taxpayer’s trade or business. The eight
factors are: (1) Frequency and regularity of sales; (2) the
substantiality of sales; (3) the duration the property was held;
(4) the nature of the taxpayer’s business and the extent to which
the taxpayer segregated the collection from his or her business
inventory; (5) the purpose for acquiring and holding the property
before sale; (6) the extent of the taxpayer’s sales efforts by
advertising or otherwise; (7) the time and effort the taxpayer
dedicated to the sales; and (8) how the sales proceeds were
used.14 Williford v. Commissioner, supra; see also Bramblett v.
14
Petitioner and respondent both deem the last factor
inconclusive and not relevant, and we therefore do not address
it. Generally, this factor indicates that assets are held for
sale where the taxpayer uses sales proceeds to replenish
(continued...)
- 13 -
Commissioner, 960 F.2d 526 (5th Cir. 1992); Suburban Realty Co.
v. United States, 615 F.2d 171 (5th Cir. 1980); Biedenharn Realty
Co. v. United States, 526 F.2d 409 (5th Cir. 1976). We apply
these factors to determine whether the dealership held the
classic cars for investment or for sale.
1. Frequency and Regularity of Sales
The frequency and regularity of sales are among the most
important factors in determining whether an asset is held for
investment or as inventory. Suburban Realty Co. v. United
States, supra at 176 (cited by Williford v. Commissioner, supra);
see also Biedenharn Realty Co. v. United States, supra at 416;
Buono v. Commissioner, 74 T.C. 187, 199 (1980); Goldberg v.
Commissioner, 223 F.2d 709 (5th Cir. 1955) (frequency of sales
alone is not sufficient to establish a taxpayer is engaged in
selling assets as a business). The inference, generally, is that
frequent sales serve as an indicium that the assets are being
held for sale, while infrequent sales serve as an indicium that
the assets are being held for investment.
Whether the number of sales was sufficiently frequent must
be viewed in the context of the particular industry at issue.
14
(...continued)
inventory. See Williford v. Commissioner, supra (citing Bittker
& Lokken, Federal Taxation of Income, Estates and Gifts, par.
51.2.3, at 51-18, par. 51.2.4, at 51-23 (2d ed. 1990); Ross v.
Commissioner, 227 F.2d 265, 268 (5th Cir. 1955); and Goldberg v.
Commissioner, 223 F.2d 709, 713 (5th Cir. 1955), revg. 22 T.C.
533 (1954)).
- 14 -
Respondent and petitioner have provided us with no caselaw
concerning the sale of classic cars, or cars in general, but
rather have highlighted cases concerning sales of real estate and
artwork.15 Each case turned on the unique facts at issue, and we
can discern no standard from the caselaw to apply here. We
therefore view the frequency of sales factor in the context of
our own facts and apply no standardized test to determine whether
the sales were sufficiently frequent.
Petitioner sold 80 cars over approximately 12 years.16 The
parties focus on different time periods to support their
arguments. Petitioner focuses upon the higher number of sales in
the years at issue to argue that the cars were held for sale as
inventory. In contrast, respondent focuses upon the smaller
number of sales between 1989 and 1998 to argue that the cars were
held for investment purposes. The holding purpose inquiry begins
at the time the property is acquired and spans the entire course
15
Real property was held for sale where the taxpayer sold 37
lots in 3 years, and 10 lots in 2 years. See Biedenharn Realty
Co. v. United States, 526 F.2d at 416; Thompson v. Commissioner,
322 F.2d 122, 124-125 (5th Cir. 1963), affg. in part and revg. in
part 38 T.C. 153 (1962). Artwork was held for investment where
the taxpayer sold eight paintings in 2 years. See Williford v.
Commissioner, supra.
16
The dealership owned more than 80 classic cars during the
time that the museum was open.
- 15 -
of ownership.17 Suburban Realty Co. v. United States, supra at
183.
We first note that sales increased in the years at issue for
understandable reasons. Mr. Taylor died unexpectedly at age 60,
and petitioner’s board agreed to redeem the shares of DTE under
section 303 that Mr. Taylor owned before his death. The increase
in sales does not negate a finding that the cars were previously
held for sale. Petitioner explains that the dealership sold
fewer classic cars in the earlier years because it was in the
nascent phase of building inventory, restoring the cars,
establishing a reputation, and publicizing the classic cars to
potential clientele, but that the cars were nonetheless held for
sale at all times.18 We found testimony for the dealership
compelling, and find the total number of sales, 80 sales over 12
years, and 69 sales over the 2 years at issue, sufficiently
frequent to support a finding that the classic cars were held for
sale. This factor favors petitioner.
17
We also note that we need not decide the “precise moment”
that the cars were held for sale under Fifth Circuit caselaw.
See Suburban Realty Co. v. United States, 615 F.2d 171, 184 n.36
(5th Cir. 1980).
18
Specifically, four were sold in 1990, three were sold in
1991, three were sold in 1997, one was sold in 1998, and the
remainder were sold in 1999 and 2000.
- 16 -
2. Substantiality of Sales
Courts generally view frequent sales generating substantial
income as tending to show that property was held for sale rather
than for investment. Suburban Realty Co. v. United States, supra
at 181; Biedenharn Realty Co. v. United States, supra. Where
substantial profits result from capital appreciation, however,
and not from the taxpayer’s efforts, infrequent sales generating
large profits tend to show that the property was held for
investment. Williford v. Commissioner, T.C. Memo. 1992-450
(citing Bramblett v. Commissioner, supra).
While the cars in this case appreciated in value, most of
the gains from the sales were due to the dealership’s efforts in
restoring and refurbishing the cars. Further, the dealership
consistently sold the classic cars before the years at issue for
a profit, with the exception of two sales. The dealership
reported all sales at ordinary income rates, as it did for sales
of new and used cars. This factor favors petitioner.
3. Duration of Ownership
Longer holding periods suggest an asset is held for
investment. See Williford v. Commissioner, supra. The Court in
Williford found that holding periods of 19 years and 13 years
served as indicia that the paintings were held for investment.
The classic cars in this case were held 7 to 10 years. Of the
classic cars sold prior to the years at issue, seven were held
- 17 -
less than 2 years, one was held less than 4 years, and one was
held less than 10 years. None of the classic cars were held for
as long as the periods set forth in Williford.
Moreover, in Williford, the paintings did not require work
akin to the extensive time and effort the dealership devoted to
refurbishing and restoring the classic cars. The attendant
length of ownership is therefore longer in the case of value-
added classic cars. In comparison, the dealership’s new and used
cars were held shorter periods for readily apparent reasons.
Respondent’s argument comparing the shorter periods for the new
and used cars vis-a-vis the classic cars, therefore, is not
dispositive.
The value of the new and used cars, as petitioner explained,
depreciated quickly, demanding quicker turnover. In contrast,
the classic cars appreciated in value over time and,
consequently, did not necessitate the same rapid turnover period.
We find, therefore, that the holding period for the classic cars
is consistent with finding the dealership held the classic cars
for sale. This factor favors petitioner.
4. Segregation of Classic Cars From New and Used Cars
Property held for sale and property held for investment must
be separately identified. Scheuber v. Commissioner, 371 F.2d
996, 998-999 (7th Cir. 1967), revg. T.C. Memo. 1966-107 (cited by
Williford v. Commissioner, supra); Frank H. Taylor & Son, Inc. v.
- 18 -
Commissioner, T.C. Memo. 1973-82 (cited by Williford v.
Commissioner, supra). This factor suggests property segregated
from other property may indicate some assets are held for
investment while others are held for sale.
In Williford, the Court found that the paintings held as
inventory were kept in a location separate from those held for
investment. While the classic cars were physically segregated
from the new and used cars, we find the physical segregation of
the cars of no moment. A dealership could have numerous physical
locations. The fact remains that the classic cars were on
display to the public at all times in contrast to the paintings
the taxpayer held in his home that were not on display to the
public. Moreover, the classic cars were held separately in
buildings on the Galveston property because they required
protection from the elements, unlike the new and used cars.
Nor do we find segregation of the cars for book purposes
significant. Petitioner explained that it grouped the classic
cars as “other assets” because “current assets” were those that
could be converted to cash within a year. Because the classic
cars were not typically sold within a year, they were listed
under “other assets.” This method is consistent with generally
accepted accounting principles.
- 19 -
Overall, we do not find the segregation of the dealership’s
classic cars relevant to our determination whether they were for
investment or for sale. We therefore find this factor neutral.
5. Purpose of Acquisition
This factor relates to whether the taxpayer intended to hold
the property for sale or to hold the property for investment.
Williford v. Commissioner, supra. Respondent argues that the
dealership’s application for “exhibition” license plates
indicates that the dealership did not hold the classic cars for
sale. Instead, respondent argues that the exhibition plates
essentially meant the classic cars were not for sale. As
petitioner countered, the exhibition plates did not restrict the
cars from being sold but merely were a means of informing the
public that the classic cars were at least 25 years old.
Respondent also argues that the dealership acquired the
classic cars to hold them for investment because Mr. Taylor was
“passionate” about cars in general and classic cars in
particular. Testimony established that every classic car the
dealership owned was acquired so it could be sold for a profit.
We do not find it relevant whether Mr. Taylor was passionate
about classic cars.
The dealership’s accounting treatment of the classic cars
was no different from the new or used cars. Each car, whether
new, used, or classic, was assigned a stock inventory number.
- 20 -
Any costs associated with the car were added to the basis of that
car, and no depreciation or current deduction was claimed. The
dealership reported each car sale, whether new, used, or classic,
as a sale of inventory at ordinary income rates. See Daugherty
v. Commissioner, 78 T.C. 623, 630-631 (1982) (an important way of
determining the taxpayer’s intent in holding the property is how
the property was handled on the taxpayer’s books and records).
That the dealership reported sales at ordinary income rates in
the 10 years prior to the years at issue and consistently held
the classic cars out to third parties as inventory bolsters its
argument that its purpose was to hold the cars for sale.
Further, we cannot accept respondent’s assertion that the
primary holding purpose of the classic cars was merely to exhibit
them as “museum pieces”. We question whether the dealership
would expend effort to acquire, rebuild, and maintain the classic
cars if the purpose were merely to display them, stationary, at a
museum. On the contrary, each car was rebuilt to near
perfection, and the dealership maintained standards so that each
car could be driveable at any time and therefore command the
highest price. The dealership started the car engines every 6
weeks and changed the oil every 6 months to maintain them in
driving condition. Designating the Galveston property as a
museum made business sense as a means to gain exposure for the
- 21 -
classic cars specifically and the dealership in general, and to
cover overhead.
We found the testimony that the classic cars were acquired
as inventory to be honest, forthright, and credible. This factor
favors petitioner.
6. Sales and Advertising Effort
Sales and advertising efforts indicate the assets are held
for sale, not investment. Respondent argues that the dealership
did not advertise the classic cars for sale and compares the
advertising strategies the dealership used to market the new and
used cars with the less overt methods the dealership used to
market the classic cars. Again, we find this analogy artificial.
The holding period was shorter for new and used cars, and the
advertising methods consequently more immediate. The dealership
could be selective in its sales so long as its activity was
consistent, overall, with its treatment of the classic cars as
inventory for sale.
Petitioner argues that the dealership used various
advertising methods to market the classic cars for sale. These
included entering the cars in auctions and auto shows, displaying
the cars at numerous events frequented by wealthy individuals,
hosting events at the Galveston property for wealthy car
enthusiasts, designing and printing brochures featuring the cars,
arranging for newspaper and magazine articles about the cars,
- 22 -
displaying the cars at the dealership and promotional events, and
publishing a large booklet on the cars. Personnel of the
dealership testified that they referred serious inquiries
regarding the classic cars to Mr. Taylor, or to a broker retained
by the dealership after Mr. Taylor died. There was also
testimony that Mr. Taylor was frequently on the Galveston
property negotiating with interested buyers.
We find that the dealership always held the classic cars as
inventory for sale. The dealership was merely more flexible
regarding the classic car’s price during the years at issue
because of the immediate need for capital. In addition, we find
that the dealership made efforts to advertise and sell the
classic cars in years before those at issue. Mr. Taylor
personally negotiated these sales, and he would often accompany
potential customers on test drives of the cars. If a potential
customer ever expressed an interest in a classic car, testimony
established that personnel would direct the potential customer to
Mr. Taylor or the broker appointed to sell the classic cars after
Mr. Taylor’s death.
Even though, as respondent contends, the dealership did not
market the classic cars as it marketed the new and used cars, we
find the record replete with evidence that the dealership held
the classic cars as inventory for sale. Mr. Taylor frequently
stated that every classic car was for sale. In fact, the
dealership’s general manager testified that Mr. Taylor said
- 23 -
everything was for sale for the right price. Testimony also
indicates that Mr. Taylor rejected a suggestion to form a
foundation to own the classic cars. Mr. Taylor rejected the
suggestion when he learned that the profits from selling the
classic cars would go to the foundation rather than the
dealership. Mr. Taylor wanted the profits to flow to the
dealership. This factor favors petitioner.
7. Time Devoted to Sales Activity
That a taxpayer devotes little time or effort to the selling
of assets may suggest that the assets are held for investment
purposes. Williford v. Commissioner, T.C. Memo. 1992-450. A
taxpayer does not hold property for sale if the taxpayer did not
initiate sales, advertise, have a sales office, or spend a great
deal of time on the transactions. Byram v. United States, 705
F.2d 1418, 1424 (5th Cir. 1983); see also Ross v. Commissioner,
227 F.2d 265 (5th Cir. 1955) (taxpayer did not list property with
real estate dealers, advertise, or make efforts to sell the
property), revg. T.C. Memo. 1954-179.
We find that the dealership here devoted substantial time to
the sales activity. This includes the time spent coordinating
advertising and promotional events, and the time Mr. Taylor spent
at classic car shows and auctions negotiating with potential
customers, as well as the time the broker spent negotiating sales
following Mr. Taylor’s death. This factor favors petitioner.
- 24 -
C. Conclusion
The ultimate inquiry in this case is whether the classic
cars were held primarily for sale. We find that they were. We
find compelling the dealership’s continuous and consistent
treatment of the classic cars as held for sale. We also find
testimony concerning the dealership’s sales efforts credible and
persuasive. From the date the dealership first acquired a
classic car, the dealership has been in the business of selling
cars. The dealership’s classic cars were consistently treated
for book purposes and tax purposes as held for sale. We surmise
respondent now objects because of the ordinary losses generated
by the sales in the years at issue. Respondent was apparently
content to collect tax at ordinary income rates on gains from
sales of the dealership’s classic cars in prior years.
We have found that all of the pertinent factors favor
petitioner or were neutral. The factors, however, are not
dispositive, and each case must rest upon its own facts. The
focus here is upon the statute, which excludes from capital asset
treatment property held by the taxpayer primarily for sale to
customers in the ordinary course of his or her trade or business.
Sec. 1221(a)(1); see Thompson v. Commissioner, 322 F.2d 122, 127
(1963) (cited by United States v. Winthrop, 417 F.2d 905, 910
(5th Cir. 1969)), affg. in part and revg. in part 38 T.C. 153
(1962); Wood v. Commissioner, T.C. Memo. 2004-200.
- 25 -
Respondent had the burden to prove by a preponderance of the
evidence that the classic cars were not held for sale. He did
not meet that burden. We conclude that the dealership’s classic
cars were held for sale and hence qualify for an exception from
capital asset status under section 1221(a)(1). Accordingly, we
do not sustain respondent’s determination.
Decision will be entered
for petitioner.
| {
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} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00467-CV
Mohammad Ashraf, Appellant
v.
Shahnaz Ashraf, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-FM-07-002895, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Mohammad Ashraf appeals from the final decree in his divorce proceeding
from appellee Shahnaz Ashraf. (1) Appellant challenges portions of the decree dividing property
between the parties and claims that he received ineffective assistance of counsel at trial. Because
we hold that there is no error in the divorce decree, we affirm the trial court's judgment.
BACKGROUND
The parties were married in February 1981. (2) Ashraf earned a degree in architecture
from the University of Nebraska at Lincoln and went on to work for Travis County, the City of
Austin, and the Texas Department of Transportation. Khan earned a degree in home economics in
Pakistan, but seldom worked outside the home during the marriage, instead staying home to raise
the parties' son and daughter, who are now adults. Khan filed for divorce in June 2007, citing
insupportability as well as cruelty and adultery on the part of Ashraf.
The trial court heard the case on July 29, 2010. However, the trial was temporarily
delayed when Ashraf failed to appear on time. Ashraf's attorney informed the court that Ashraf was
at his doctor's office and would arrive shortly. When Ashraf appeared, he presented the court with
a doctor's letter requesting that the trial be postponed due to medical problems affecting Ashraf.
Khan's attorney argued that the letter was a stalling tactic by Ashraf. Noting that the parties'
daughter had flown in to testify and that the case had already dragged on for three years, causing
great distress to Khan, her attorney requested that the trial go forward. The court stated, "Well, I
don't think--this is just a request. It doesn't say he's unable to participate, so I'm going to go ahead,
and we're not going to--I'll deny the continuance and just go on and get this done."
The parties proceeded to explain their proposals for the division of property. Khan
requested a disproportionate share of the estate, including the family home; 50% of the value of an
empty lot owned by the parties in their neighborhood, worth about $30,000; and a 70% share of the
four retirement accounts in Ashraf's name, which the parties stipulated were worth about $1,580 in
income per month. Khan cited fraud on the community by Ashraf as the basis for this division.
Khan also asked that she and her son retain the Lexus vehicles they had each been driving and that
Ashraf receive the 1998 Honda Civic he had been driving. Based on her limited earning potential
and family violence committed by Ashraf, Khan requested spousal maintenance. (3) See Tex. Fam. Code
Ann. § 8.051 (West 2006). Finally, she requested that the court award her $7,500 in attorney's fees.
In support of her proposal, Khan presented testimony from herself, her attorney, and
the parties' grown daughter, Mahim Ashraf. (4) Khan first testified as to her allegation that Ashraf was
guilty of cruelty. She gave examples of malicious and controlling behavior by Ashraf throughout
their marriage. For example, Khan testified that Ashraf once poured an entire gallon of milk over
her head when she had just finished taking a shower. She stated that Ashraf did not permit their
children to have any interactions with members of the opposite sex. In addition, Khan claimed that
Ashraf was controlling with money, making her show him each load of laundry she needed to wash
before he would give her coins for the laundry machines at the rental property where they once lived.
Khan testified that Ashraf rarely permitted her to work outside the home, so she had only sporadic
work experience as a substitute day care provider and at a department store.
Khan also described several instances of physical abuse by Ashraf, including "[a]
couple of times" when he hit or pushed her. Khan also described an incident when Ashraf hit her
with a remote control for refusing to turn on the television for him. Khan further contended that
Ashraf physically abused their children, beginning when the oldest was just ten months old. Finally,
she stated that Ashraf's 2008 arrest for family violence occurred after he pulled Khan's hair and
pushed her into a wall, causing a reddish mark on her back.
Additionally, Khan testified that Ashraf had allowed their home to fall into disrepair.
She claimed that the house suffered minor water damage in 2001 or 2002, but because Ashraf never
repaired it, water built up in the wall and eventually seeped into the living room and the furniture.
Khan stated that her children were embarrassed by the state of the house and stopped having friends
over to visit. According to Khan, her lack of access to the family finances prevented her from taking
action to repair the house. She testified that Ashraf opened a home equity line of credit for $50,000
with Compass Bank, claiming he would use the money to make repairs. However, Ashraf did not
permit Khan to sign the deposit form so that she could also withdraw from the line of credit. Khan
testified that the home equity funds were not used to repair the home after all. Instead, according
to Khan, Ashraf used the money to buy two Lexus automobiles.
The court admitted photos of the home into evidence. One photo depicted a rat inside
the home. Khan testified that there were "a couple" of rats at one point, although they were gone by
the time of trial. Khan also stated that there were cockroaches throughout the home and these were
never exterminated because Ashraf believed it would be a waste of money. Khan testified that the
photos had been taken between 2006 and 2008, but reflected the conditions she had been living in
for the past ten years. She testified that the tax appraisal value of the home was approximately
$121,000. However, Khan claimed, three real estate agents had appraised the home at closer to
$105,000 due to its condition.
Khan testified as to her belief that Ashraf had committed adultery, stating that she
"caught him cheating . . . over the phone" and "caught him in the driveway with a girl." Additionally,
Khan testified with regard to her claim that Ashraf was guilty of fraud on the community. Khan
stated that Ashraf purchased the second Lexus with the home equity line of credit in violation of
temporary orders entered by the trial court enjoining Ashraf from using that account. She further
testified that Ashraf had begun drawing from a retirement account with the Employees Retirement
System (ERS) despite temporary orders prohibiting either party from doing so.
Moreover, Khan testified that the empty lot did not belong to Ashraf's sister, as
Ashraf claimed. She testified that Ashraf at one point leased the property to a construction company
that was working on a nearby road for six months. Further, Khan claimed that even after she filed
for divorce, Ashraf approached her about building a new home on the lot. She stated that she had
seen drawings and plans Ashraf had created for the project. Khan further stated that she heard
Ashraf tell a friend that the lot would pass to Ashraf's children when he died.
The parties' twenty-six-year-old daughter, Mahim, also testified in support of her
mother's claims. Mahim testified that Ashraf had frequently beaten his children. She stated that
Ashraf would pull the children up by the hair if he found them seated in his chair at the dining table.
Mahim said Ashraf hit her on a regular basis, mostly slapping her on the face but also punching her
or twisting her arms. Mahim also testified that, while her brother was standing up to use the toilet,
her father would push open the bathroom door and tell him he needed to sit down to use the toilet.
Ashraf would then stop his son in the middle of urinating and tell him to sit down. Mahim also
testified that Ashraf had abused Khan throughout the children's lives. She recalled one incident
when Ashraf threw a television remote at Khan's back and another, in April 2008, when Mahim
called the police after Ashraf pulled Khan's hair and pushed her against the wall.
Mahim also corroborated that Ashraf restricted the family's access to money. "We
never saw money or got money or received allowance or anything," Mahim testified. She stated that
her mother obtained money and food from family and community members, shopped at Goodwill,
and used credit cards for basic household items. According to Mahim, Ashraf behaved as if it would
be ludicrous for Khan to request his financial support. Mahim added that the family home was an
unhealthy, unsanitary environment as a result.
Ashraf was the only witness to testify in favor of his proposal. He requested an even
division of the parties' estate, proposing either that Khan receive the entire house and Ashraf receive
all of his retirement income, or that the house be sold and the proceeds divided evenly while the
retirement would also be divided evenly. Ashraf claimed that the empty lot should not be divided
between the parties because it belonged to his sister. Finally, Ashraf requested either that he receive
a better vehicle than the Honda Civic or that all of the vehicles be sold and the proceeds be split
evenly between the parties.
In support of his case, Ashraf testified that he could not find work and described
the fixed monthly income he received through Social Security and two retirement funds. Ashraf
admitted that he began drawing from his ERS account during the divorce. However, Ashraf also
claimed that he repaid Khan for the withdrawal by using the money for utilities, taxes, and mortgage
payments on the family home. He also asserted that the withdrawal was permitted under temporary
orders that the trial court had previously entered providing for the payment of property taxes during
the pendency of the divorce.
Ashraf testified that he disciplined his children, but never abused them. He contended
that he only struck Mahim one time, when he spanked her for beating her brother. Ashraf argued that
the children had been brainwashed by Khan, who had always hated him, into believing he was a bad
person. Ashraf testified that he always provided for his family, funding the children's room and
board in college and paying extra on the mortgage so that they could keep the home if he died.
Ashraf claimed that he did use funds from the home equity line of credit for some
repairs, such as installing new tile in the bathrooms and entryway and enlarging the kitchen in the
home. However, Ashraf admitted to taking money from that account to purchase vehicles. With
respect to the empty lot at issue, Ashraf testified that he purchased it for his sister in Pakistan.
Ashraf stressed that his sister had been responsible for paying taxes on the lot, except when he leased
it to a construction company on her behalf and paid the taxes with the proceeds.
While cross-examining Ashraf, Khan's attorney offered evidence of Ashraf's alleged
adultery. This included a Valentine's Day card from one woman, an affectionate e-mail from another,
and documentation that Ashraf purchased a Southwest Airlines gift card for a female friend to travel
to Austin. When asked if he remembered sending e-mails inviting a woman to have sex with him,
Ashraf responded, "I don't remember." Later he asked, "Where is your proof that I slept with her?
Just because I wrote that, sent that e-mail, does that mean I slept with her?" Ashraf admitted that
he had "made mistakes" and "done something destructive" during the marriage, but only as a response
to Khan being unfaithful many times.
After this testimony, as well as the testimony of the parties' attorneys concerning the
fees they were owed, the court orally announced its decree. The court stated, "I can't totally go along
with what [Khan] wishes this court to do," but expressed that "Mr. Ashraf may need a little bit of
penalty for some of the complications he's caused." Thus, the court granted the divorce and:
Awarded the house to Khan, asserting that Ashraf "needs to get out";
Ordered the empty lot to be sold and divided evenly, stating, "I have no evidence,
other than the lot . . . belongs to the community";
Awarded the Honda Civic, the Datsun, and the two Lexus vehicles in the same
manner as the temporary orders and Khan's request;
Ordered "the retirement" to be "split 50/50" on the grounds that "[s]he's entitled to
it, and I know she's getting the house. But looking at these pictures, it might cost
another $50,000 to get that house in tip-top shape, too. So I think that's about as fair
as this Court's going to be"; and
Ordered Ashraf to pay $3,000 in fees to Khan's attorney.
Khan subsequently filed a motion to enter judgment with a proposed final decree based on the trial
court's oral pronouncement. On November 24, 2010, at the hearing on Khan's motion, the court
entered a Final Decree of Divorce matching Khan's proposed decree. (5) On December 27, 2010,
Ashraf filed a motion for new trial. The trial court denied Ashraf's motion, and Ashraf now appeals
pro se.
In his pro se brief on appeal, Ashraf presents the following arguments: (1) that he
received ineffective assistance of counsel that prejudiced the outcome in his case; (2) that the trial
court abused its discretion in denying his motion for continuance; (3) that the final divorce decree
was not approved by Ashraf's counsel and differed from the decree announced orally at the
conclusion of the trial; and (4) that the trial court abused its discretion in making the division of
property because the evidence was legally and factually insufficient to support the order. (6)
Khan responds that the doctrine of ineffective assistance of counsel is inapplicable
in civil divorce cases; that Ashraf received notice of the final divorce decree and failed to preserve
any complaint as to its contents; and that the trial court did not abuse its discretion in denying the
continuance or making the property division. In one cross-point, Khan requests that we subject
Ashraf to sanctions for filing a frivolous appeal. See Tex. R. App. P. 45.
DISCUSSION
Ineffective assistance of counsel
Ashraf primarily complains that his trial counsel provided ineffective assistance. In
support of this claim, Ashraf alleges that his counsel: (1) called him to testify despite Ashraf being
very ill and under the influence of prescription medications, the side effects of which caused Ashraf
to give incomprehensible testimony; (2) failed to object to the admission of outdated photographs
of the family home and to offer evidence that Ashraf had made certain repairs; (3) failed to present
other evidence, such as an inventory of community property and documents showing that Ashraf had
paid more than required toward the mortgage each month; and (4) failed to respond when opposing
counsel did not serve the proposed final divorce decree on Ashraf or his counsel.
The United States Supreme Court has recognized that ineffective assistance of
counsel is a violation of the Sixth Amendment right to counsel. See Strickland v. Washington,
466 U.S. 668, 686 (1984). However,
[i]t is well established that the doctrine of ineffective assistance of counsel does
not extend to civil cases. The Sixth Amendment of the United States Constitution
and Article I, Section 10 of the Texas Constitution provide that 'in all criminal
prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel
for his defense.' Thus, by their plain language neither the Sixth Amendment nor
Article I, Section 10 apply to civil cases.
Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App.--Houston [14th Dist.]
2003, no pet.); see also McCoy v. Texas Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.--Dallas
2006, no pet.). An exception to the general rule has been created with regard to trial counsel in
parental termination cases. See In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). However, the case
before us does not concern parental rights. Accordingly, the doctrine of ineffective assistance is
inapplicable, and we overrule this issue on appeal.
Motion for continuance
We next consider Ashraf's complaint regarding the trial court's denial of his
motion for continuance. We review the grant or denial of a motion for continuance for an abuse
of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002) (citing
Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)); Rocha v. Faltys, 69 S.W.3d 315, 318-19
(Tex. App.--Austin 2002, no pet.). This Court cannot overrule the trial court's decision unless the
trial court acted unreasonably or in an arbitrary manner, "without reference to any guiding rules and
principles." Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
According to Ashraf, the trial court "abused its discretion by denying [his] Motion
for Continuance which was supported by a doctor's statement of medical impairment and the effects
of eight prescription drugs on [Ashraf]." The doctor's letter was not made part of the record in this
case. However, in support of this argument, Ashraf asserts that portions of his testimony at trial were
incoherent, "full of incomplete sentences," and indicative of confusion and agitation on his part. He
also notes that Khan's attorney commented on Ashraf's "recalcitrant nature, the fact that he wants
to argue with me and spar with me" in his closing argument to the court. (7)
However, this evidence is insufficient to demonstrate that the trial court abused its
discretion in denying the continuance. In exercising its discretion, the trial court could have taken
into account the entire procedural history of this case. See Waste Water, Inc. v. Alpha Finishing &
Developing Corp., 874 S.W.2d 940, 942 (Tex. App.--Houston [14th Dist.] 1994, no writ). Thus,
when presented with Ashraf's motion, the trial court could have considered not only the statement
by Ashraf's doctor but also the long duration of the case up until that point, including multiple
continuances and failed attempts at alternative dispute resolution. The court could also have
considered the suggestion by Khan's attorney that Ashraf was only attempting to stall again and the
fact that a witness had flown in to testify. Further, as the trial court observed when presented with
the doctor's statement, it was merely a request and did not state that Ashraf was unable to participate.
As a result, we cannot conclude that the court acted unreasonably or in an arbitrary
manner, "without reference to any guiding rules and principles," in denying Ashraf's motion for
continuance. See Beaumont Bank, N.A., 806 S.W.2d at 226. We overrule this issue on appeal.
Final decree of divorce
Ashraf also argues that the trial court "abused its discretion in signing a written decree
that was not approved by counsel and contains orders dividing property that was not divided by the
Trial Judge." According to Ashraf, he and his attorney "were not provided a copy or asked to sign
the Final Decree of Divorce" and thus were "denied the right to review [it] for correctness."
In response to this issue, Khan directs us to her motion to enter judgment contained
in the clerk's record. The motion states that Khan's proposed decree was submitted to Ashraf's
attorney on two occasions. The motion also includes a copy of the proposed decree, notice of the
hearing set for November 24, 2010, and a certificate of service averring that the motion was served
on Ashraf's attorney by facsimile transmission on November 19, 2010. Khan asserts that, "[a]fter
being given an opportunity to present evidence and object to the proposed order, Mr. Ashraf cannot
complain for the first time on appeal." See Tex. R. App. P. 33.1.
We agree. To preserve a complaint for appellate review, a party must make the
complaint to the trial court by timely request, objection, or motion, state the specific grounds
therefore, and obtain a ruling. Id. The record does not demonstrate that Ashraf attended the hearing
on the entry of the decree or made any request, objection, or motion with regard to its contents. By
failing to take these measures after receiving notice, Ashraf did not preserve any issue for our review.
See Ricks v. Ricks, 169 S.W.3d 523, 528 (Tex. App.--Dallas 2005, no pet.); see also Wright v.
Wright, No. 03-08-00485-CV, 2009 Tex. App. LEXIS 8563, at *2 (Tex. App.--Austin Nov. 3, 2009,
no pet.) (mem. op.); Rebelloso v. Rebelloso, No. 03-96-00614-CV, 1997 Tex. App. LEXIS 3468, at
*8 (Tex. App.--Austin July 3, 1997, no pet.) (mem. op., not designated for publication). (8) We
therefore do not need to evaluate Ashraf's claim that the final decree diverged from what was orally
announced at trial. See Tex. R. App. P. 44.1. We overrule this issue on appeal.
Division of property
Finally, Ashraf complains about the division of property in the trial court's final
divorce decree. Specifically, he argues that the trial court "abused its discretion in making the
property division and . . . in giving non-community property to [Khan] and community property to
[the parties' son], with no facts to support it."
"In a decree of divorce or annulment, the court shall order a division of the estate
of the parties in a manner that the court deems just and right, having due regard for the rights of
each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (West 2006). The
factors to be considered in the trial court's division of the estate include: (1) fault in breaking up
the marriage; (2) the spouses' capacities and abilities; (3) business opportunities; (4) education;
(5) relative physical conditions; (6) relative financial conditions and obligations; (7) disparity of
ages; (8) sizes of separate estates; (9) the nature of the property; and (10) disparity in earning
capacities or incomes. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).
The trial court has broad discretion in dividing the marital estate at divorce. See id.
at 699. On appeal, we presume that the trial court exercised this discretion properly and will reverse
the cause only where there is a clear abuse of discretion. See Bell v. Bell, 513 S.W.2d 20, 22 (Tex.
1974). A clear abuse of discretion is shown only if the division of the property is manifestly unjust.
See Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980). "The party attacking the property division
bears the heavy burden of showing that the trial court's property division was not just and right."
Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.--Fort Worth 1999, pet. denied).
Khan responds to Ashraf's argument by stressing that the trial court received evidence
that Ashraf was at fault in breaking up the marriage through his controlling, abusive, and neglectful
conduct and that he had greater business opportunities, education, and earning capacity than Khan.
She concludes that the disproportionate division of the estate was therefore amply supported. We
agree that Ashaf has not met "the heavy burden of showing that the trial court's property division
was not just and right." Pletcher, 9 S.W.3d at 446.
For example, Ashraf complains of the trial court's award of the entire family home
to Khan. However, the court heard evidence that the home was worth between $105,000 and
$121,000; that it was subject to a home equity line of credit with which at least two vehicles had
been purchased; and that it required considerable repairs, which were the original justification for
the line of credit of $50,000. (9) Accordingly, the house represented a mixture of financial assets and
liabilities. The court also heard evidence that Ashraf had abused Khan and their children throughout
the marriage, failed to maintain their home, and prohibited basic sanitary measures like pest
extermination, contributing significantly to the breakup of the marriage. Consequently, we cannot
conclude that the trial court was manifestly unjust to award the house to Khan.
Ashraf also claims that it was manifestly unjust to award Khan the entirety of her
401(k) account while dividing his retirement accounts equally between the parties. At trial, the
parties stipulated that Ashraf's various retirement accounts offered him approximately $1,580
in income each month. Meanwhile, the court heard evidence that Khan's only retirement account
was a 401(k) worth approximately $6,000 in total and that Khan, unlike Ashraf, was not yet eligible
for Social Security income. In addition, the court heard that Khan possessed a degree in home
economics from Pakistan and had scant work history while Ashraf possessed an architecture
degree from the United States and had worked in architecture for decades. For these reasons, in
addition to the evidence of abuse discussed above, we cannot agree with Ashraf. The division of the
retirement accounts was not manifestly unjust and therefore not a clear abuse of discretion on the
part of the trial court. See Bell, 513 S.W.2d at 22; Mann, 607 S.W.2d at 245.
Ashraf also claims that insufficient evidence supported the trial court's award of two
vehicles, the second Lexus and a 1974 Datsun, to the parties' son while Ashraf received only the
1998 Honda Civic. However, Khan testified that her son had purchased the Datsun with his own
money and that Ashraf explicitly said he was buying the second Lexus for their son. Additionally,
the trial court heard that Ashraf purchased at least one of the vehicles using the home equity line of
credit in violation of a court order. Consequently, in distributing the vehicles and stating, "That
seems to be what the parties intended at the time, for [their son] to drive the Lexus," the trial court
did not abuse its discretion. (10)
Finally, Ashraf argues that the court abused its discretion in distributing the proceeds
from the empty lot between the parties. Ashraf testified at trial that he purchased the lot for his sister
and that she had largely been responsible for paying property taxes on it, for which reason the lot
was not community property. However, the court was presented with evidence contradicting that
proposition. There was evidence that the lot was purchased in Ashraf's name, but that another man
had been listed as the owner with Travis County. That man, whom Ashraf described as a friend in
Houston, submitted an affidavit disclaiming ownership of the lot and averring that it belonged to
Ashraf, which suggested there was some subterfuge by Ashraf with regard to the lot. Moreover,
Khan testified as to various specific circumstances, such as Ashraf planning to build on the lot and
telling a friend that the lot would pass to his children upon his death, indicating that it did not belong
to Ashraf's sister.
Under the family code, all property possessed by either spouse during or on the
dissolution of a marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a)
(West 2006); Harrison v. Harrison, 321 S.W.3d 899, 902 (Tex. App.--Houston [14th Dist.] 2010,
no pet.). To overcome this presumption, a spouse who claims that an asset is separate property
must establish that fact by clear and convincing evidence and must trace and clearly identify the
property claimed. Tex. Fam. Code Ann. § 3.003(b) (West 2006). In addition, as the finder of fact,
the trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony.
Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011). Here, given the significant evidence supporting Khan's
characterization of the lot, the trial court could have found that Ashraf did not provide clear and
convincing evidence to rebut the presumption that the lot was community property. Thus, it was not
manifestly unjust to award half of the lot's value to Khan. (11)
For the above reasons, Ashraf has failed to demonstrate that the trial court's division
of property was not just and right. Pletcher, 9 S.W.3d at 446. We hold that the property division
was not manifestly unjust and therefore not a clear abuse of discretion. See Bell, 513 S.W.2d at 22;
Mann, 607 S.W.2d at 245. We overrule this issue on appeal.
Damages for frivolous appeal
In a cross-point on appeal, Khan requests that this Court find Ashraf's appeal to be
frivolous and award damages in the amount of $5,000. See Tex. R. App. P. 45 (permitting an
appellate court to award a prevailing party "just damages" for "frivolous" appeals).
In determining whether an appeal is frivolous, we apply an objective test, reviewing
the record from the viewpoint of the advocate and deciding whether the advocate had reasonable
grounds to believe the judgment could be reversed. Smith v. Brown, 51 S.W.3d 376, 380 (Tex.
App.--Houston [1st Dist.] 2001, pet. denied). Whether to grant sanctions for a frivolous appeal is a
matter of discretion that an appellate court exercises with prudence and caution and only after careful
deliberation in truly egregious circumstances. Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652,
657 (Tex. App.--Houston [14th Dist.] 2008, no pet.).
Although we have noted various deficiencies in Ashraf's appeal, and although we
have rejected his arguments, Khan has not demonstrated that Ashraf's appeal is among the "truly
egregious circumstances" for which we would award damages. See id. We therefore exercise our
discretion to deny Khan's request for sanctions and overrule her cross-point on appeal.
CONCLUSION
We affirm the final decree of divorce. (12)
__________________________________________
Diane M. Henson, Justice
Before Justices Puryear, Henson, and Goodwin
Affirmed
Filed: May 24, 2012
1. At the appellee's request, the divorce decree ordered that her name be changed back to her
maiden name of Shahnaz Khan. Accordingly, we will hereinafter refer to the appellant as "Ashraf"
and the appellee as "Khan" for clarity.
2. The facts recited herein are taken from the testimony presented at trial.
3. In April 2008, Ashraf was arrested for family violence. He was tried and convicted of
family violence assault. See Tex. Penal Code Ann. § 22.01 (West 2011).
4. Because the parties' daughter shares the appellant's last name, we will refer to her by her
first name for clarity.
5. The decree bears the signatures of Khan and her attorney, but not Ashraf or his attorney.
The record does not establish, but neither party appears to dispute, that Ashraf and his attorney did
not attend the hearing.
6. In his list of "Points for Review," Ashraf identifies only two issues: (1) that he received
ineffective assistance of counsel and (2) that the trial court abused its discretion in making the
property division. However, he introduces additional issues in the body and conclusion of his brief,
and we will consider these as points of error on appeal. See Giddens v. Brooks, 92 S.W.3d 878, 880
(Tex. App.--Beaumont 2002, pet. denied) (pro se pleadings and briefs are to be liberally construed).
7. Ashraf has attached various documents to his brief, including several pages describing
the side effects of medications. However, these are not a part of the appellate record, and we do
not consider them. See Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 423 (Tex.
App.--Houston [14th Dist.] 2003, no pet.) ("[T]he attachment of documents as exhibits or
appendices to briefs does not constitute formal inclusion in the record on appeal and, therefore,
[such documents] cannot be considered.").
8. To the extent that Ashraf may mean to argue that he could not preserve error because he
never received notice, we note that a certificate of service is prima facie evidence that notice was
sent, and notice properly sent under rule 21a raises a presumption that notice was received. See Tex.
R. Civ. P. 21a; Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). In the present case, Khan's
motion to enter judgment demonstrates that notice of the proposed decree and hearing was properly
sent to Ashraf's attorney. Nothing in rule 21a precludes a party from offering proof that notice was
not received. Tex. R. Civ. P. 21a. However, Ashraf offers only unsupported statements suggesting
that he did not receive notice. Accordingly, we must presume that Ashraf received notice and
nevertheless did not complain of the decree's contents.
9. After examining the photos admitted into evidence, the trial court opined that "it might cost
another $50,000 to get that house in tip-top shape." Ashraf claims this statement is an abuse of
discretion in itself, since even experts cannot conclusively discern repair costs from a few pictures.
However, we understand the comment to refer to the evidence that a $50,000 home equity line of
credit was obtained for the purpose of repairing the home. Given the additional testimony that few
if any repairs were actually made, it was not manifestly unjust for the trial court to state that the
remaining repairs might require the same amount of money originally earmarked for that purpose.
10. The Lexus and Datsun vehicles were awarded to Khan with the understanding that she
would give them to the parties' son.
11. Ashraf also argues that the trial court abused its discretion in refusing to hear evidence of
an inheritance received by Khan. However, the record shows that Khan was questioned only as to
any inheritance she might receive in the future, and the trial court sustained an objection due to
relevance. Further, to complain on appeal that a trial court erroneously excluded evidence, the
substance of the evidence must be made known to the trial court by an offer of proof. Tex. R. Evid.
103(a)(2); Tex. R. App. P. 33.1. Having failed to make such an offer, Ashraf has not preserved this
complaint for appeal.
12. Khan filed a motion, which is pending before this Court, to accelerate this appeal or to
provide for enforcement of the trial court's final decree. We dismiss the motion as moot.
| {
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720 F.Supp. 720 (1989)
Charles BAXTER, Plaintiff,
v.
CITY OF BELLEVILLE, ILLINOIS, Defendant.
No. 89-3354.
United States District Court, S.D. Illinois.
August 25, 1989.
*721 John R. Hammel, ACLU, Chicago, Ill., Thomas E. Kennedy, III, Land of Lincoln Legal Assistance Foundation, East St. Louis, Ill., for plaintiff.
Robert Sprague, Belleville, Ill., Kevin L. Blaine, Coppinger, Carter, Schrempf & Blaine, Alton, Ill., for defendant.
MEMORANDUM AND ORDER
STIEHL, District Judge:
This matter is before the Court on plaintiff's motion for preliminary injunction. Plaintiff, Charles Baxter, seeks injunctive relief against the defendant, City of Belleville, Illinois (City), requiring the City to allow Baxter to open a residence intended to house persons with Acquired Immune Deficiency Syndrome (AIDS). Baxter claims that his rights under the Fair Housing Act, 42 U.S.C. § 3601, et seq. (FHA), and the Fourteenth Amendment have been violated by the City's refusal to grant him a special use permit for the property in question.
I. BACKGROUND
On March 27, 1989, Baxter filed an application with the Belleville Zoning Board for a special use permit for a residence he desires to establish in the City of Belleville to provide housing for AIDS infected persons. On April 27, 1989, the Zoning Board voted to recommend that Baxter's request be denied. That recommendation was then presented to the Belleville City Council at its May 15, 1989 meeting. Baxter's request *722 for a special use permit was denied by a 9 to 7 vote of the Council.
Baxter filed his complaint for declaratory and injunctive relief on June 13, 1989. This Court heard evidentiary testimony on the motion for preliminary injunction, after which it ordered the parties to file post-hearing memoranda.
II. FINDINGS OF FACT
Upon review of the record, the Court finds, based on the evidence adduced at the hearing, the following:
A. BAXTER'S REQUEST FOR A SPECIAL USE PERMIT
1. APPLICATION
On March 22, 1989, Baxter signed a one-year lease as lessee for the property known as 301 South Illinois Street, Belleville, Illinois. The lease contained an option for a one-year renewal, as well as an option to purchase.
After experiencing some difficulty over an acceptable corporate name, Baxter formed a not-for-profit corporation named Baxter's Place to operate the property. He called the residence he hoped to establish: "Our Place."
On March 27, 1989, Baxter filed an application for a special use permit for the property. On the application under paragraphs 3(a) which requests the applicant to detail the "nature of the proposed use, ... the type of activity, manner of operation, number of occupants ... ", Baxter listed the following:
1. Hospice for Terminally Ill Patients
2. Structured supervision
3. limited excess [sic] to public
4. No more then [sic] 7
Baxter, on the advice of counsel, who also was a lessor of the property, changed the first listing from "Hospice for AIDS care" to "Hospice for Terminally Ill Patients." Under that part of the application entitled "Recommendation of Zoning Administrator," the following appears:
If such a facility is needed in Belleville, this property would serve the purpose.
S/Stan Spehn
2. ZONING BOARD HEARING
The Zoning Board hearing was held on April 27, 1989. Baxter's counsel made a lengthy presentation to the Board including traffic and parking impact, availability of local medical facilities, current zoning of the property and a description of the location. She told the Board that no one in the area opposed the special use request. Copies of an exchange of letters between Hospice of Southern Illinois and Baxter were presented to the Board with respect to the use of the term "hospice." However, not until the end of the presentation to the Zoning Board was it revealed that the residents of Our Place would be AIDS patients.
The Board members asked Baxter a number of questions, including whom he intended to house in the facility. Baxter told the Board that he would be housing AIDS patients. The majority of the questions asked of Baxter concerned the members' fear of AIDS. The questions included: how potential residents would be screened; supervision of the residents; effect on the junior high school across the street; how Baxter would handle sanitation, including disposal of body fluids; why he chose Belleville for the residence; needs in Belleville for such a residence; and, whether Baxter, himself, was homosexual or had tested positive for the Human Immunodeficiency Virus (HIV).
Baxter informed the Board of his extensive history of providing in-home care for critically ill patients, including AIDS patients in the final stages of their disease. He spoke of three persons in Belleville who were HIV-infected and homeless and of Red Cross statistics to the effect that there are 3000 HIV-positive cases in Madison and St. Clair Counties. He also told the Board that he personally had spoken with the Superintendent of Schools about his plans for Our Place, and that the Superintendent had said that he had no problem with the residence plans. Baxter told the Board that AIDS persons deserved to live with dignity so that they could die with dignity.
*723 Two persons then spoke on behalf of Our Place. One was a person with AIDS, and the other was the sister of an AIDS patient whom Baxter had cared for until his death.
Our Place is located in the 6th Ward, and both 6th Ward aldermen were present at the hearing. No opposition was raised by any member of the audience. The Board voted unanimously to recommend to the Board of Aldermen that Baxter's request for special use permit be denied.
The City designated Frank Heafner, one of the members of the Zoning Board, to testify on behalf of the Zoning Board. He testified that one of the important reasons the Board recommended denial of the permit was that Our Place would be close to a junior high school. The Board was also concerned with the potential change in property values in the area, and that people might stay away from that part of Belleville. He also stated that the Board was concerned with Baxter's lack of qualifications and they were uncertain how he was going to accomplish his plans. Heafner testified that it was the belief of the Board that Baxter would need more training, although he was not able to say exactly what training would be necessary to satisfy the Board's concerns. The Board members also expressed concern about the potential spread of AIDS through residents who might be intravenous drug users and homosexuals.
Heafner testified that he did not recall that the Board made any actual determinations with respect to the following, although these factors were listed on the advisory report of the Zoning Board:
A. The proposed variance is not consistent with the general purposes of this Ordinance; and,
B. Strict application of the district requirements would not result in great practical difficulties or hardship to the applicants, and would not prevent a reasonable return on the property; and,
C. The proposed variance is not minimum deviation from such requirements that will alleviate the difficulties and hardship and would not allow a reasonable return on the property; and,
D. The plight of the applicants is not due to peculiar circumstances; and,
E. The peculiar circumstances engendering this variance request are applicable to other property within the district, and therefore, a variance would not be an appropriate remedy; and,
F. The variance, if granted, will alter the essential character of the area where the premises in question are located, and materially frustrate implementation of the municipality's comprehensive plan.
3. CITY COUNCIL MEETING
The Belleville City Council considered Baxter's request for a special use permit at its regular meeting held May 15, 1989. Alderman Koeneman of the 6th ward, where 301 South Illinois is located, made a motion to overturn the recommendation of the Zoning Board. The motion was seconded by Alderman Seibert, of the same ward.
Because there were a number of questions from the aldermen, Mayor Brauer requested and received permission from the Council for Baxter to respond to the questions. (No member of the public is permitted to speak at a Council meeting without formal approval by the Council.) Thomas Mabry, a Belleville alderman, was designated by the City to testify on behalf of the City Council. He stated that the majority of the questions from the aldermen were addressed to how the facility would be run and concerns of the aldermen about AIDS. He also testified that the City Council was concerned with the fact that Our Place would affect property values; that many of the residents would be intravenous drug users; and that the facility is located across the street from a junior high school.
Mabry stated that the main factors in his voting to refuse the special use permit were: (1) Baxter did not convince him that Baxter had the ability to run or fund the facility; (2) Baxter did not have sufficient medical or counseling background to run the facility; (3) Baxter did not have a plan for proper sanitation, specifically, disposal of items that would come into contact with the AIDS virus; and, (4) his major concern was the location of the residence in a *724 commercial area, in close proximity to both a junior high school and a grade school.
He also testified that he understood Baxter's intent to be to establish a residence for seven HIV-infected persons, but that during the meeting Baxter changed the number of prospective residents to four, of whom only two could be in the critical stages of the disease. Mabry admitted that he did not know of Baxter's medical background.
Mabry has served on both the City Council and the Zoning Board. He stated that the Council generally votes unanimously, and if the two aldermen for the ward in which the applicant property is located vote in favor of a variance, special use permit, or other zoning change, the other aldermen will vote with them. Mabry further testified that he could not recall an instance in which a request that was supported by the two aldermen of the ward in which the property was located had been denied by the Council.
Arthur Baum, Belleville City Clerk, testified that he was present at the City Council meeting, and confirmed Mabry's testimony as to the nature of the questions asked by the aldermen, and their concerns. Baum understood Baxter's intended use of the facility to be for the housing of terminally ill AIDS patients in the last stages of their disease. He stated that no one on the Council referred to any medical authorities or experts, and that to his knowledge none were consulted by the Council. He further testified that there was no specific determination by the Council as to the health and safety issues, although the vote indicated the Council's position. Baum testified that the aldermen made it clear that they were concerned about and feared the spread of HIV into the community if Our Place were allowed to open.
Baum testified that he has been City Clerk for ten years, and that he does not know of any other instance during that time when the Council voted against a request supported by the two aldermen of the ward in which the property was located.
B. BAXTER'S MEDICAL BACKGROUND
Baxter has been a home healthcare provider for fifteen years. His general responsibilities included bathing, feeding, hygiene, administering all medications but injections, cleaning and dressing sores, changing linen, laundry duties, and cooking. He receives referrals from social workers and nursing agencies and is registered with a number of health-care organizations. Among those he has cared for were three AIDS patients in the last stage of the disease.
He became interested in caring for AIDS patients in 1987. Since that time has has received training in AIDS patient care from St. Elizabeth's Hospital in Belleville. He studied with an infectious control nurse on obstruction of the virus, self-protection and hygiene. As part of this study, he received written materials on AIDS to review. He also received instruction on the proper terminology related to HIV infections, clinical analysis, methods of transmission and elimination of the risk of transmission. He has completed the first two parts of three of an organized training program on AIDS at St. Elizabeth's. He did not complete the third part because he left to care for an AIDS patient.
C. MEDICAL EVIDENCE
Plaintiff's expert, Robert L. Murphy, M.D., testified at length and in great detail as to the genesis, transmission and physiological development of the Human Immunodeficiency Virus, commonly referred to as "HIV." Dr. Murphy is a full-time Assistant Professor at Northwestern University Medical School, and is the Director of the AIDS Clinic and AIDS Clinical Research and Treatment Facility at Northwestern Memorial Hospital, Chicago, Illinois. He is a clinical coordinator for the AIDS Biopsychosocial Center at Northwestern University Medical School and Director of the Sexually Transmitted Disease Clinic at Memorial Hospital. He is also a medical consultant to the Center for Disease Control Midwest Regional STD (Sexually Transmitted Disease) Training Center. *725 The Court finds that Dr. Murphy is qualified as an expert in the field of sexually transmitted diseases.
The City did not attempt to refute or rebut Dr. Murphy's testimony by offering its own expert. The Court, therefore, makes the following findings with respect to HIV, and its transmission:
1. The Human Immunodeficiency VirusStrain 1, a retrovirus, was not known in the United States before 1977. The identification of the virus did not occur until 1984. The difficulty in identifying the virus and its relationship to AIDS has resulted in some confusion as to the proper nomenclature. AIDS is the end of the spectrum of the HIV infection, and was the name originally given to the disease by the National Center for Disease Control in Atlanta (CDC) before scientists knew that the source of AIDS was HIV infection. The CDC is the largest epidemiological center in the world, and is responsible for tracking three dozen different diseases. HIV is the largest scientific study at the CDC.
2. There are only three known methods of transmission of the HIV infection: through the exchange of body fluids in sexual intercourse; exposure to infected blood products; and, transmission interutero from an infected mother to a fetus, or, after birth, through breast milk. Except for transmission through breast milk, all are well-documented.
3. HIV is a very difficult virus to transmit. The virus is encapsulated in a fragile "envelope." It cannot survive outside of white blood cells, and if exposed to the air, it will die. Soap, 130°F tap water and common household detergents all kill the virus. The disease is even difficult to transmit during intercourse. The transmission rate of HIV is 1 in 500 sexual encounters, in comparison to the transmission rate of gonorrhea, 1 in 4, and in herpes, 1 in 2 exposures with active lesions.
4. The risk of infection from exposure to blood products is highest among healthcare providers, primarily resulting from penetrating blood contact through needle punctures or blood splash. The CDC places the risk of transmission to healthcare providers at a rate of .004 of individuals exposed to contaminated blood. Of the 15 million healthcare providers in the United States, there are only 16 documented cases of HIV infection from exposure at work. The CDC has further determined that other individuals who are subjected to infected blood are at no risk of infection. This includes police officers and paramedics. In addition, since the HIV antibody test became available in 1985, there has been no medical evidence of transmission of the virus among household members with an HIV-positive resident. There also is no medical evidence of transmission through saliva.
5. An HIV-positive individual is infectious from the first day of contracting the disease, and immunological deterioration begins on the first day of his becoming infected with HIV. However, there may be a long period of time after contracting HIV when the patient feels fine and is typically asymptomatic. At some point, however, the immune system becomes implicated and symptoms occur. In addition, once the immune system has sufficiently broken down, a host of opportunistic tumors and infections may occur within other systems, e.g., the lymph-nodes system and spleen may be infected; brain tissue can inflame, causing dementia; and, the reproductive system may be infected, all due to the diminished immunity in the HIV-infected person. It is at this point that the disease has progressed to one of the diagnostic stages of either AIDS Related Complex (ARC) or AIDS.
6. The depressed immune system of the HIV patient makes him vulnerable to infection from ubiquitous bacterium, fungi and virus. In the HIV patient, these commonly occurring organisms are able to overrun the HIV patient's weakened body system. The most common of these infections are pneumocystis carinii pneumonia (PCP); cytomegalovirus (CMV) which may lead to blindness; cryptococcus which causes inflammation of the meninges leading to meningitis or dementia; and mycobacterium avium-intracellular (MAI) which is related to tuberculosis. All of these infections, *726 except MAI, are ubiquitous, are not transmitted from one person to another, and are commonly present in nature. MAI, although infectious, is easy to diagnose and, with therapeutic treatment is rendered non-communicable within two weeks.
7. The CDC has set forth policy guidelines of universal precautions to be used by healthcare providers. The precautions necessary for HIV households, however, are minimal, and include the use of disposable gloves and disinfection of blood and body fluid spills with diluted bleach.
Based on the conclusive medical evidence presented, the Court finds that persons who are HIV-positive pose no risk of its transmission to the community at large.
D. BAXTER'S INTENDED USE OF OUR PLACE
It is evident from Baxter's testimony that his intention for Our Place, has, from its inception, been to offer housing to persons who are HIV-positive, homeless, and in the later stages of the disease, but still able to care for themselves. However, throughout the evidentiary hearing the parties used the terms "AIDS" and "HIV-positive" interchangeably, although it is clear from the medical evidence before the Court that not all persons who are HIV-positive have progressed to the AIDS stage of the disease. In an effort to minimize confusion with respect to the Court's discussion of this deadly disease, it will be referred to as HIV, understanding AIDS to be included in that term.
III. CONCLUSIONS OF LAW
A. STANDARDS FOR INJUNCTIVE RELIEF
The key case in this circuit on the standard for injunctive relief is Roland Mach. Co. v. Dresser Indus., 749 F.2d 380 (7th Cir.1984). While there are more recent cases, i.e. American Hosp. Supply v. Hospital Prod. Ltd., 780 F.2d 589 (7th Cir. 1985) and Lawson Prod., Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir.1986), Roland acts as the foundation upon which these cases build their decisions. In order to succeed in his application, therefore, plaintiff must meet the test set forth in Roland.
The Roland test has been reduced to four required showings:
To obtain a preliminary injunction, a plaintiff must show: (1) that he has no adequate remedy at law or will suffer irreparable harm if the injunction is denied; (2) that the harm he will suffer is greater than the harm the defendant will suffer if the injunction is granted; (3) that the plaintiff has a reasonable likelihood of success on the merits; and (4) that the injunction will not harm the public interest.
On/TV v. Julien, 763 F.2d 839, 842 (7th Cir.1985). The district court has broad discretion to grant or deny the injunctive relief sought, and that decision will be overturned only upon a showing that the Court abused its discretion. Burlington N. R.R. v. Bhd. of Maintenance of Way Employees, 793 F.2d 795, 804 (7th Cir.1986), aff'd, 481 U.S. 429, 107 S.Ct. 1841, 95 L.Ed.2d 381 (1987).
The City asserts that injunctive relief is unavailable in this action because Baxter seeks relief other than to preserve the status quo. In support of these propositions, the City relies on Chalk v. United States Dist. Ct., Cent. Dist. of Calif., 840 F.2d 701 (9th Cir.1988). However, the injunctive relief standard of the Ninth Circuit is not controlling. In Roland the Seventh Circuit stated that the element of preservation of the status quo is "ambiguous." 749 F.2d at 383. The court noted that in a preliminary injunction the status quo may be both preserved in one sense yet changed in another. Id. The Court acknowledges that the more common situation in which injunctive relief is sought involves restraining certain acts of the defendant. The Court's equitable remedies are not, however, restricted to merely prohibitions. Among the Court's equitable powers is the power to require affirmative action, also known as mandatory injunctive relief.
Mandatory injunction is defined by Black's Law Dictionary as follows:
Mandatory injunction. One which (1) commands the defendant to do some positive *727 act or particular thing; (2) prohibits him from refusing (or persisting in a refusal) to do or permit some act to which the plaintiff has a legal right; or (3) restrains the defendant from permitting his previous wrongful act to continue operative, thus virtually compelling him to undo it.
Black's Law Dictionary, 705 (5th Ed.1979).
The relief plaintiff seeks is to prohibit the City from continuing to refuse to permit the plaintiff to be allowed to open Our Place. Mandatory injunctions are common in FHA and Rehabilitation Act cases. See, e.g., Robertson v. Granite City Community Unit School Dist. 9, 684 F.Supp. 1002 (S.D.Ill.1988); Doe v. Dolton Elementary School Dist. No. 148, 694 F.Supp. 440 (N.D. Ill.1988); United States v. Housing Authority of City of Chickasaw, 504 F.Supp. 716, 734-36 (S.D.Ala.1980); United States v. Hughes Memorial Home, 396 F.Supp. 544, 553 (W.D.Va.1975). Furthermore, § 3613(c) provides, in part, that the equitable relief available under the FHA includes "an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate." (Emphasis added).
B. LIKELIHOOD OF SUCCESS ON THE MERITS
The Seventh Circuit has stated that of factors to be considered, the likelihood of success on the merits usually weighs most heavily in a court's determination. O'Connor v. Bd. of Educ., 645 F.2d 578 (7th Cir.) cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981). Where the court stated: "The likelihood of success factor serves as a threshold requirement ... if this factor is unsatisfied, and if the plaintiff has not shown irreparable injury, the court need go no further in denying the preliminary injunction." 645 F.2d at 580. Plaintiff need only show that his chances of succeeding on the merits are more than negligible. The greater that showing, the less the balance of harms need weigh in his favor. Roland, 749 F.2d at 387.
1. Baxter's Standing to Sue
Before reaching the merits of the injunctive relief sought, the Court must first be persuaded that the plaintiff has standing to bring this action. In determining whether plaintiff has standing to bring this action, the Court must find that he is "entitled to have the Court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). Standing has two aspects. Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976). The first aspect is jurisdictional. Article III of the Constitution limits the jurisdiction of federal courts to actual "cases" or "controversies." "The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the Court's judgment may benefit others collaterally." Warth, 422 U.S. at 499, 95 S.Ct. at 2205.
Second, to find standing, the Court must also determine whether "as a prudential matter," the petitioner is a proper proponent "of the particular legal rights on which [he] base[s] [his] suit." Singleton, 428 U.S. at 112, 96 S.Ct. at 2873. Prudential considerations will require that a litigant "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties." Warth, 422 U.S. at 499, 95 S.Ct. at 2205. Moreover, litigants do not have standing when the asserted injury "is a `generalized grievance' shared in substantially equal measure by all or a large class of citizens." Id. These prudential considerations relate to the well-established judicial preference to avoid unnecessary constitutional adjudication. Singleton, 428 U.S. at 124, 96 S.Ct. at 2879, (Powell, J., concurring in part and dissenting in part); Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
In his complaint, Baxter asserts that the City of Belleville "has refused to allow plaintiff to open a residence for persons with AIDS who need a home, and thus violated plaintiff's rights under the federal *728 Fair Housing Act, 42 U.S.C. Section 3601, et seq., and the Fourteenth Amendment." (Emphasis added).
(a) Fair Housing Act
Sections 3601, et seq. of the FHA are amendments to the Act which became effective March 12, 1989. Among the stated purposes for the amendments were the Congressional interest in expanding the Act to allow private litigants the right to challenge alleged discriminatory housing practices, and including handicapped persons among those protected by the Act. H.R.Rep. No. 100-711, 100th Cong.2d Sess. 13, reprinted in 1988 U.S.Code Cong. & Admin.News 2173, 2174.
Plaintiff asserts that his rights under § 3604(f)(1) and § 3617 have been violated by the City's refusal to grant him a special use permit and thereby allow him to open the residence to house up to seven persons with AIDS.
Section 3604(f)(1) makes it unlawful:
To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of
(A) that buyer or renter;
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that buyer or renter.
Section 3617 provides:
Interference, coercion, or intimidation; enforcement by civil action
It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title. This section may be enforced by appropriate civil action.
Some courts have held that success under § 3617 is not contingent upon a finding that plaintiff also has sufficiently alleged a cause of action under § 3604. See, e.g. Scott v. Greenville Co., 716 F.2d 1409 (4th Cir.1983); In re Malone, 592 F.Supp. 1135 (E.D.Mo.1984), aff'd without opinion, 794 F.2d 680 (8th Cir.1986). However, in a footnote, the Seventh Circuit has stated:
One court has held that a violation of section 3617 can be established without first establishing a violation of sections 3603, 3604, 3605, or 3606 because to interpret section 3617 otherwise would make it superfluous. Laufman v. Oakley Bldg. & Loan Co., 408 F.Supp. 489, 497-98 (S.D.Ohio 1976). We decline to decide whether section 3617 can ever be violated by conduct that does not violate any of the four earlier sections. We do hold, however, that under the circumstances of this case, where the conduct that allegedly violated section 3617 is the same conduct that allegedly violated section 3604(a) and was engaged in by the same party, the validity of the section 3617 claim depends upon whether the failure to rezone violated section 3604(a).
Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1288 n. 5 (7th Cir.1977), on remand from 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978).
Because Baxter's claims under both § 3604 and § 3617 are founded on the same conduct or acts of the City, under the holding in Arlington Heights, for Baxter to have standing under § 3617, the Court must first be persuaded that he has standing under § 3604. Accordingly, the Court will first look to Baxter's standing to sue under § 3604(f)(1). The main thrust of section (f)(1) is to prohibit discrimination in housing based upon handicap. Therefore, the Court must determine whether persons infected with HIV are handicapped within the meaning of the statute.
(i) Determination of Handicap Under the Act
Section 3602(h) defines handicap as follows:
(h) "Handicap" means, with respect to a person
*729 (1) a physical or mental impairment which substantially limits one or more of such person's major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance as defined in section 802 of Title 21.
The 1988 amendments to the FHA were modeled on the Rehabilitation Act of 1973. The legislative history of the 1988 amendments provides:
Coverage of Handicapped Persons
H.R. 1158 includes handicapped persons as a protected class. Handicapped persons have been protected from some forms of discrimination since Congress enacted the Rehabilitation Act of 1973, and the bill uses the same definitions and concepts from that well-established law. In the 1980 Fair Housing bill, Congress also included protections for individuals with handicaps.
Prohibiting discrimination against individuals with handicaps is a major step in changing the stereotypes that have served to exclude them from American life. These persons have been denied housing because of misperceptions, ignorance, and outright prejudice.
1988 U.S.Code Cong. & Admin.News at 2178.
It is clear from its legislative history that Congress intended to include among handicapped persons those who are HIV-positive.
The Fair Housing Amendments [sic] Act, like Section 504 of the Rehabilitation Act of 1973, as amended, is a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.
....
People with Acquired Immune Deficiency Syndrome (AIDS) and people who test positive for the AIDS virus have been evicted because of an erroneous belief that they pose a health risk to others.
All of these groups have experienced discrimination because of prejudice and aversion because they make non-handicapped people uncomfortable. H.R. 1158 clearly prohibits the use of stereotypes and prejudice to deny critically needed housing to handicapped persons. The right to be free from housing discrimination is essential to the goal of independent living.
Id. at 2179. Although Congress spoke in terms of persons with AIDS and "people who test positive for the AIDS virus," notwithstanding the problems with nomenclature, the legislative history supports a finding that Congress intended to include persons with HIV within the definition of handicapped.
In School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), the Supreme Court declined to determine whether a carrier of AIDS, that is an HIV-positive person, would fall within the definition of handicap under the Rehabilitation Act. 480 U.S. at 282 n. 7, 107 S.Ct. at 1128 n. 7. The plaintiff in Arline was a tuberculosis victim, and not HIV-positive. Subsequent courts, however, have addressed the application of the Rehabilitation Act to persons with HIV, and have found that those with ARC and AIDS are handicapped under the Act.
Chief Judge Foreman of this District has previously held that a seven year old student with ARC was handicapped within the meaning of the Rehabilitation Act of 1973. Robertson, 684 F.Supp. at 1006-07. Similarly, the district court in Dolton, 694 F.Supp. at 445, held that a student with AIDS is handicapped and entitled to the protection of the Rehabilitation Act. In Dolton, the court stated: "Surely no physical problem has created greater public fear and misapprehension than AIDS. That fear includes a perception that a person *730 with AIDS is substantially impaired in his ability to interact with others, e.g., to attend public school. Such interaction is a major life activity." 694 F.2d at 444. Similarly, the inability to reside in a group residence due to the public misapprehension that HIV-positive persons cannot interact with non-HIV-infected persons adversely affects a major life activity. The Court therefore finds that persons who are HIV-positive are handicapped within the meaning of the FHA.
(b) Application of § 3604(f)(1)
In light of the evidence adduced at the hearing, it cannot be said that Baxter is, himself, infected with HIV. Therefore, § 3604(f)(1)(A) is not applicable in this action.
A more difficult question is whether Baxter has standing under (f)(1)(B). The precise language of subsection B prohibits discrimination due to the handicap of "a person residing in or intending to reside in that dwelling after it is so sold, rented or made available." Baxter proceeds alone in this action, and has not been joined as a party plaintiff by a HIV-positive individual who seeks to reside at Our Place.
A number of FHA cases offer some guidance to the Court on the issue of plaintiff's standing to sue. The Supreme Court, in ruling on prior FHA cases, has held that the prudential limitations on standing are not applicable in actions that are brought pursuant to the FHA. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Trafficante v. Metro. Life. Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). This Court recognizes that these cases did not address the specific discrimination allegations raised by Baxter. However, the analyses of the overall intent of the FHA, as well as the broad interpretation the Court has given to the statute, offer valuable guidance to this Court's review of the most recent amendments to the FHA.
In Havens, the Court addressed the standing requirements under a related section of the statute and stated: "Thus the sole requirement for standing to sue ... is the Art. III minima of injury in fact: that the plaintiff allege that as a result of the defendant's actions he has suffered a `distinct and palpable injury'." 455 U.S. at 373, 102 S.Ct. at 1121, quoting Warth, 422 U.S. at 501, 95 S.Ct. at 2206.
In the earlier Gladstone opinion, the Court held:
[A]s long as the plaintiff suffers actual injury as a result of the defendant's conduct, he is permitted to prove that the rights of another were infringed. The central issue at this stage of the proceedings is not who possesses the legal rights protected by § 804 [codified at § 3604], but whether respondents were genuinely injured by conduct that violates someone's § 804 rights, and thus are entitled to seek redress of that harm under § 812.
441 U.S. at 103 n. 9, 99 S.Ct. at 1609 n. 9.
In the case at bar, Baxter has testified that he has suffered economic injury from the loss of income from tenants due to his inability to go forward with his plans for Our Place. In addition, Baxter testified that he has invested his own money to remodel and repair the building, and for the deposit and rental costs of $1,500 per month. Among the renovations were the installation of a kitchen and window repairs. He further testified that he knows of three persons who are HIV-positive, homeless, and would move into Our Place if it were allowed to be opened. The economic injury Baxter has suffered is sufficient to support a finding that he has met the required Article III injury in fact to raise a case or controversy. See Arlington Heights, 429 U.S. at 261-64, 97 S.Ct. at 561-562. Therefore, Baxter has met the first requirement for individual standing. Warth, 422 U.S. at 499, 95 S.Ct. at 2205.
The Court further finds that, as a prudential matter, Baxter is the proper proponent of the rights under § 3604(f)(1) on which he bases his suit. Singleton, 428 U.S. at 112, 96 S.Ct. at 2873. As Baxter *731 has standing under § 3604(f)(1), the Court may now address his standing under § 3617. Section 3617 makes it unlawful to interfere with the exercise or enjoyment of a right protected under § 3604. As the Court has determined that the actions of the City violated Baxter's rights under § 3604(f)(1), he may also proceed under § 3617. Cf. Arlington Heights, 558 F.2d at 1288 n. 5.
2. 301 South Illinois as a Dwelling Under the FHA
The City asserts that Baxter is not entitled to injunctive relief because the property at 301 South Illinois, Our Place, is not a "dwelling" under the FHA. Section 3602 of the FHA defines dwelling as follows:
(b) "Dwelling" means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any building structure, or portion thereof.
(c) "Family" includes a single individual.
The City has questioned Baxter's intended use of the premises. It is readily apparent, however, that Baxter intends to use the structure as a residence for one or more persons. This is evidenced by the fact that Baxter has expended a considerable amount of time and money in redesigning the former office building into a residential structure. Viewing Baxter's intent objectively, the fact that Baxter installed a kitchen in a building which previously lacked such a facility, is evidence that Baxter intends to use the premises as a residence.
The City has relied on United States v. Mintzes, 304 F.Supp. 1305 (D.Md.1969), and Patel v. Holley House Motels, 483 F.Supp. 374 (D.Ala.1979) to support its assertion that the premises is not a dwelling under the Act. However, the City's reliance on these cases is misplaced. In Mintzes, the court held that vacant land, whose structures had been torn down, and which was being held for commercial use was not a "dwelling" under the FHA. This does not apply to the instant action, because the structure here has not been torn down, and the premises is designed for a non-profit residential use, and not a commercial use.
In Patel, the court held that a motel was a commercial public accommodation, designed for transient visitors, and was not a residence or a dwelling. As with Mintzes, the Patel ruling does not apply to this facility which is designed for non-profit residential use, and not commercial public accommodation. Further, the facility is to be used by temporary or permanent inhabitants, and not transient visitors. Finally, the Patel court, in quoting United States v. Hughes Memorial Home, 396 F.Supp. 544, 548-49 (W.D.Va.1975), notes that a dwelling was a "temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit." Baxter has indicated that the facility is to be a home for HIV victims in need of a place to live. Although the length of the residence may vary, the persons who will reside at Our Place will not be living there as mere transients. Thus, the premises may be considered a dwelling.
Accordingly, the premises at 301 South Illinois is within the definition of dwelling as provided by the FHA, and Baxter's claim is subject to consideration under the Act.
3. Evidence of Baxter's Likelihood of Success
Having determined that Baxter has standing to sue under §§ 3604(f)(1)(B) and 3617 of the FHA, the Court now addresses the issue of his likelihood of success on the merits of his claims. As stated earlier, Baxter's required showing is minimal. He need only establish that his chances of succeeding are more than negligible. Roland, 749 F.2d at 387.
It has long been recognized that to give full measure to the Congressional purpose behind the FHA, courts have given broad interpretation to the statute. See, e.g., Havens Realty, 455 U.S. at 370, 102 S.Ct. at *732 1119; Gladstone, 441 U.S. 91, 99 S.Ct. 1601; Trafficante, 409 U.S. 205, 93 S.Ct. 364; Arlington Heights, 558 F.2d 1283.
There are two methods of showing a violation of § 3604. The first method is commonly referred to as an "intent" case. That is, plaintiff need only show that the handicap of the potential residents at Our Place, a protected group under the FHA, was in some part the basis for the City's action. See, e.g., Smith v. Adler Realty Co., 436 F.2d 344, 349-50 (7th Cir.1971) (holding that racial motivation need not be the only reason for the decision if it is an element of that decision); Williamson v. Hampton Management Co., 339 F.Supp. 1146 (N.D.Ill.1972).
The evidence adduced at the hearing supports plaintiff's claim that irrational fear of AIDS was at least a motivating factor in the City's refusal to grant Baxter's special use permit. Furthermore, due to that fear, the City's actions were both intentional and specifically designed to prevent persons with HIV from residing at Our Place. Therefore, plaintiff has established a sufficient likelihood of success on the merits with respect to his "intent" case to entitle him to injunctive relief.
In addition, Baxter is likely to succeed on the alternative showing of a § 3604 violation. In Arlington Heights, the Seventh Circuit set out a four-pronged test for review of § 3604 causes of action in which the conduct produced a discriminatory effect, but was taken without discriminatory intent. This is known as an "impact" analysis. Although the Arlington Heights court was faced with racial discrimination under the FHA, the analysis therein is equally applicable to the 1988 handicap amendments to the FHA, and will be applied by this Court in its review of Baxter's claims. The court held:
Four critical factors are discernible from previous cases. They are: (1) how strong is the plaintiff's showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)]; (3) what is the defendant's interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.
558 F.2d at 1290.
The court divided the first prong into two kinds of discriminatory effects which can be produced in a facially neutral housing decision. "The first occurs when that decision has a greater adverse impact on one [FHA protected] group than on another. The second is the effect which the decision has on the community involved...." Id. In this action only the first kind of discriminatory effect is applicable. It is evident that the actions of the City adversely impacted handicapped individuals, persons who are HIV-positive, more than non-handicapped individuals. The intent of Baxter was to open a residence for homeless HIV-positive persons. This group of persons has been adversely impacted each day the residence remains unopened. This form of discrimination is strong because all of the persons adversely affected, with the exception of Baxter, himself, are members of an FHA protected group of handicapped individuals. Id. at 1291.
The second prong is the discriminatory intent present in the conduct. The court noted, however, that this factor is the least important of the four in an impact determination. Id. at 1292. As previously discussed, it is evident from the testimony of the City's own witnesses that fear of AIDS and a desire to keep persons with HIV out of the Belleville community were, at least, compelling factors in the City's actions.
The third prong is the interest of the defendant in taking the action which produced the alleged discriminatory impact. The City has asserted that it acted pursuant to its legitimate interest in zoning, particularly land use and public health and safety. In support thereof, the City asserts that Baxter failed to demonstrate that he had the background to operate this *733 facility or that he had a firm plan or program for operating the facility.
The Court acknowledges the City's stated concerns, but finds them to have been a pretext. If the City's true concerns were with Baxter's qualifications or his lack of a firm program or plan, it could have continued the Zoning Board or Council hearings, or both, and given Baxter an opportunity to respond to these concerns. The evidence, however, was substantial that both the Zoning Board and the City Council focused on the perceived threat of HIV and voted accordingly. That the City's actions were based on fear of HIV, and not a legitimate zoning interest, is further supported by the fact that although the two 6th ward aldermen were in favor of the special use permit and moved for its passage, they were out-voted by the Council. The City's witnesses, Baum and Mabry, both testified that they could not recall that ever happening before. Furthermore, no zoning ordinance was cited by the City as a basis for its action.
The final prong of the Arlington Heights analysis is the nature of the relief which the plaintiff seeks. Unlike the situation in Resident Advisory Board v. Rizzo, 425 F.Supp. 987, 1018 (E.D.Pa.1976) modified, 564 F.2d 126 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978), cited in Arlington Heights, 558 F.2d at 1291, Baxter is not seeking to compel the City to build public housing for HIV-positive persons, he seeks to be allowed to use available housing provided by him exclusively for a residence for this handicapped group.
Under the Arlington Heights analysis, the Court finds that plaintiff is likely to succeed on the merits of his impact claim.
4. Exclusion Pursuant to § 3604(f)(9)
The City asserts that its actions did not violate the FHA because they were made in accordance with the provisions of § 3604(f)(9). That section provides: "(9) Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." The City contends that Our Place constitutes a direct threat to the health or safety of others. In support thereof the City cites the fact that 301 South Illinois is across the street from a junior high school and near a grade school. In addition, the City focuses on the fact that HIV can be transmitted by illegal drug users, a group specifically excluded from the definition of handicap under § 3602(h).
The Court has found, supra, that the scientific and medical authority is that HIV-positive persons pose no risk of transmission to the community at large. The City has asserted that the risk of secondary infections, to which the HIV-infected individual is subject, pose a substantial health risk. However, of the secondary infections, only MAI is transmissible to the community at large (See discussion, supra). Standing alone, this is an insufficient health concern to warrant the City's refusal to allow Baxter's special use under the exclusion of § 3604(f)(9). Furthermore, the fear that intravenous drug users would pose a threat to the community, under the facts of this case, is unfounded. Baxter testified that he would, through a screening process, not accept current illegal drug users as residents at Our Place. Therefore, the Court finds that the exclusions of § 3604(f)(9) do not support the City's actions.
5. Likelihood of Success Under § 3617
The Court has previously found that Baxter has standing under § 3617. Under the provisions of that section of the Act, the Court finds that the evidence supports Baxter's assertion that the City's refusal to allow his requested special use permit constituted an interference with the exercise of his rights under § 3604, as well as the potential interference with the rights of HIV-positive persons to a dwelling of their choice. Therefore, the Court finds that Baxter is likely to succeed on the merits of his § 3617 claim.
*734 6. Baxter's Equal Protection Claim
As stated earlier, there is a well-established judicial preference to avoid unnecessary constitutional rulings, Singleton, 428 U.S. at 124, 96 S.Ct. at 2877. Therefore, as the Court has determined that Baxter is entitled to injunctive relief on his statutory claims, it makes no determination as to the merits of his Equal Protection claim.
C. REMAINING INJUNCTIVE RELIEF STANDARDS
1. NO ADEQUATE REMEDY AT LAW RESULTING IN IRREPARABLE INJURY
The Seventh Circuit has held that the traditional showing of irreparable harm is not required when the plaintiff seeks equitable relief to prevent the violation of a federal statute which specifically provides for injunctive relief. See, Illinois Bell Telephone Co. v. Illinois Commerce Comm., 740 F.2d 566, 571 (7th Cir.1984), and cases cited therein. Under the FHA, injunctive relief is available pursuant to § 3613(c). That section provides:
(1) In a civil action under subsection (a) of this section, if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may award to the plaintiff actual and punitive damages, and subject to subsection (d) of this section, may grant as relief, as the court deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate).
Therefore, because the Court has found that plaintiff is likely to succeed on the merits of his discriminatory housing claim under § 3604, the plaintiff need not show irreparable harm.
2. BALANCE OF HARMS
Baxter must also show that the threatened harm to him outweighs the harm the injunction may have on the City. As stated earlier, because Baxter has a strong likelihood of success on the merits, the balance of harms need not weigh heavily in his favor. Roland, 749 F.2d at 387.
The alleged harm to the City is based on the risk of transmission of the HIV infection if the residence were allowed to open. The Court finds that this perceived risk is insufficient to outweigh the harm to Baxter if he were to continue to be unable to open Our Place.
3. PUBLIC INTEREST
Baxter must finally show that if the injunction were to issue it would not harm the public interest. It has been noted that this determination is linked to the factor of the balancing of hardships. Dolton, 694 F.Supp. at 448. As the Dolton court stated, "public concern for safety is a legitimate factor to be considered by a court, but only if the concern is rationally based." Id. Here, the public concern for safety is based on the misperception that HIV-positive persons pose a risk of transmission to the public at large. As stated by the Supreme Court in Arline, "[t]he isolation of the chronically ill and of those perceived to be ill or contagious appears across cultures and centuries, as does the development of complex and often pernicious mythologies about the nature, cause, and transmission of illness." 480 U.S. at 284 n. 12, 107 S.Ct. at 1129 n. 12.
The Court finds that the public interest can best be served if discriminatory actions based on irrational fears, piecemeal information and "pernicious mythologies" are restrained.
CONCLUSION
The Court, therefore, GRANTS Baxter's motion for a preliminary injunction as provided below. In so doing, the Court exercises its equitable powers to prevent the City from continuing a discriminatory practice that is based, almost exclusively, upon misapprehensions about the spread of the fatal HIV infection. The Court is cognizant of the strong public concern with the transmission of a fatal disease for which no cure exists. However, the fear of transmission into the general populace is unwarranted, particularly when that fear is based *735 on the belief that someone with HIV merely living in the same area poses a risk to the health and safety of the community. Irrational hysteria and public panic cannot support activity that violates the FHA and is clearly discriminatory. However, the Court is concerned that all interests be protected, and, therefore, GRANTS the motion for a preliminary injunction as follows:
1. The defendant, City of Belleville, is hereby preliminarily RESTRAINED and ENJOINED from refusing to issue to plaintiff, Charles Baxter, a special use permit for the residence at 301 South Illinois Street as a residence for HIV-infected persons.
2. The City of Belleville may establish reasonable restrictions as related to the issues of sanitation and non-admission of current illegal drug users as residents as conditions of said special use permit.
3. The City shall hold a hearing within ten (10) days of the date of this Order to establish the restrictions as provided in paragraph 2, and shall issue a special use permit within seven (7) days thereafter.
4. The Court deems security for costs unnecessary in this case because of the strong likelihood that plaintiff will succeed on the merits of his claim. Therefore, the security required by Fed.R.Civ.P. 65(c) is hereby WAIVED.
5. This preliminary injunction shall become a permanent injunction within sixty (60) days, absent the filing of an appeal or request for trial.
IT IS SO ORDERED.
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[Cite as Watson v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-5908.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
BERNARD WATSON
Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant
Case No. 2009-08080
Judge Joseph T. Clark
Magistrate Matthew C. Rambo
MAGISTRATE DECISION
{¶ 1} Plaintiff brought this action alleging negligence. The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
{¶ 2} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Allen Correctional Institution (ACI) pursuant to R.C. 5120.16. Plaintiff
alleges that on December 18, 2008, at approximately 2:30 p.m., inmate Tam Ally
assaulted him. The testimony and evidence adduced at trial shows that Ally acted
erratically prior to attacking plaintiff and that corrections officers (COs) were aware of
his behavior. Plaintiff alleges such knowledge constituted notice of an impending
assault and that defendant failed to act on such notice and prevent the assault.
{¶ 3} In order for plaintiff to prevail upon his claim of negligence, he must prove
by a preponderance of the evidence that defendant owed him a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-
2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Ohio
Case No. 2009-08080 -2- MAGISTRATE DECISION
law imposes upon the state a duty of reasonable care and protection of its prisoners;
however, the state is not an insurer of inmate safety. Williams v. Southern Ohio
Correctional Facility (1990), 67 Ohio App.3d 517, 526.
{¶ 4} Defendant is not liable for the intentional attack on one inmate by another
unless it has adequate notice, either actual or constructive, of an impending assault.
Mitchell v. Ohio Dept. of Rehab. & Corr. (1995), 107 Ohio App.3d 231, 235; Metcalf v.
Ohio Dept. of Rehab. & Corr., Franklin App. No. 01AP-292, 2002-Ohio-5082. The
distinction between actual and constructive notice is in the manner in which notice is
obtained rather than in the amount of information obtained. Whenever the trier of fact is
entitled to find from competent evidence that information was personally communicated
to or received by the party, the notice is actual. Constructive notice is that notice which
the law regards as sufficient to give notice and is regarded as a substitute for actual
notice. In re Estate of Fahle (1950), 90 Ohio App. 195, 197.
{¶ 5} Former inmate Eric Charles Murray was incarcerated at ACI in the 4B
housing unit at the time of the incident and shared a cell with Ally on the second floor of
the unit. The transcript of Murray’s deposition was introduced in lieu of his live
testimony. (Plaintiff’s Exhibit 12.) That testimony, coupled with that of CO Jon
Alexander establishes the events of December 17 and 18, 2008, as set out below.
{¶ 6} The night before the incident, Ally did not sleep. He instead spent the
night pacing the floor in the cell between the door and window, and “shadow boxing” the
mirror and his coat. Murray stated that Ally would not speak to him and that he acted as
if he were waiting for something or someone.
{¶ 7} The next morning at 5:30 a.m. when the door to the cell was opened so
that Murray could go to work in the ACI kitchen, Ally sprinted out of the cell, down the
stairs, and outside the unit. Murray went to work and returned some time between 8:00
a.m. and 8:30 a.m. to find Ally repeating his actions of the night before; that is, shadow
boxing and pacing about the cell. Murray reported Ally’s behavior to Alexander who
Case No. 2009-08080 -3- MAGISTRATE DECISION
went to the cell, observed Ally’s behavior, found it “strange,” and called the shift captain
and the “psych” department. At approximately 11:00 a.m., during “count”
time, Ally used his and Murray’s locker box and other items to barricade the cell door
and stood in the middle of the cell in a “defensive” position. After count was over,
Alexander ordered Ally to report to the shift captain’s office. Ally returned from the
captain’s office a short time later and removed the barricade. However, Ally’s behavior
remained erratic. At approximately 1:30 p.m., Alexander was directed by mental health
treatment staff to send Ally to them; however, Ally refused to communicate with
Alexander and remained standing atop a locker box in his cell in a defensive posture.
Shortly thereafter, a second CO ordered Ally to report to the mental health department.
Ally seemed to comply with the order and left the building for a short time, but he did not
report to the mental health department. At approximately 2:15 p.m., Ally returned to the
unit, at which time he approached a cell where a group of inmates, including plaintiff,
were conversing. Ally grabbed the door of the cell and swung it shut, striking plaintiff.
Plaintiff wrestled Ally to the ground and restrained him until COs and other staff
responded to the scene.
{¶ 8} John Alberts was the shift captain on duty at the time of the incident.
Alberts stated that prior to attacking plaintiff, Ally was sent to his office by a CO for
“acting peculiar.” Alberts testified that he does not specifically remember talking to Ally,
but that the normal procedure in such instances is to ask the inmate if he intended to do
harm to himself, other inmates, or to staff. If the answer is “no,” then the inmate is
referred to the “psych” department for assessment, when possible, and sent back to his
housing unit. Alberts stated that he did not remember any particular problems with Ally.
{¶ 9} James LaPoint is the current Clinical Director of Mental Health
Administration for ACI. LaPoint testified that he is the custodian of Ally’s mental health
records and that he reviewed those records in preparing for trial. (Plaintiff’s Exhibit 6.)
According to LaPoint, Ally was evaluated by mental health professionals on December
18, 2008 but, prior to that, his last referral to the mental health department had been in
Case No. 2009-08080 -4- MAGISTRATE DECISION
1993, although there was a note in his records from a 2005 parole hearing. LaPoint
opined that, based upon his position as the Clinical Director of Mental Health
Administration for ACI, the behavior exhibited by Ally prior to the incident with plaintiff
did not require “immediate intervention” by mental health staff, and that Ally’s actions
were not necessarily uncommon for inmates at ACI.
{¶ 10} Plaintiff, Murray, Alexander, CO David Burkholder, and inmates Darryl
Gray, Mario Odom, and Ralph Bringht all testified that prior to the events of December
17, and 18, 2008, they were not aware of any unusual or violent behavior by Ally.
{¶ 11} Recently, in a similar case, the Tenth District Court of Appeals stated that
defendant’s knowledge that an inmate “was not taking his medication, mumbled to
himself, and was acting erratically, does not translate into actual or constructive notice
that [he] posed a risk of violence or that his attack on [a fellow inmate] was
forthcoming.” Hughes v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 09AP-1053,
2010-Ohio-4736, ¶15. The court further noted that there was no evidence that
defendant was aware of any threats of violence by the assailant against any other
inmate, including the victim. Id.
{¶ 12} Based upon the above testimony, the court finds that defendant did not
have either actual or constructive notice of an impending attack by Ally on plaintiff. The
testimony demonstrates that while Ally’s behavior may have been erratic before the
attack, he was not violent or dangerous and did not demonstrate a threat to himself or
fellow inmates. Accordingly, judgment is recommended in favor of defendant.
A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
Case No. 2009-08080 -5- MAGISTRATE DECISION
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).
_____________________________________
MATTHEW C. RAMBO
Magistrate
cc:
Eric A. Walker Richard F. Swope
Assistant Attorney General 6480 East Main Street, Suite 102
150 East Gay Street, 18th Floor Reynoldsburg, Ohio 43068
Columbus, Ohio 43215-3130
MR/cmd
Filed November 10, 2010
To S.C. reporter December 1, 2010
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394 F.3d 739
UNITED STATES of America, Plaintiff-Appellee,v.Robert F. COMBS, Defendant-Appellant.
No. 03-30456.
United States Court of Appeals, Ninth Circuit.
Submitted July 8, 2004.*
Filed January 11, 2005.
Lance C. Wells, Anchorage, AK, for the appellant.
Jo Ann Farrington, Assistant United States Attorney, Anchorage, AK, for the appellee.
Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CR-02-00108-1-JKS.
Before: HALL, KLEINFELD, and WARDLAW, Circuit Judges.
WARDLAW, Circuit Judge:
1
Robert Combs appeals his conviction, following a bench trial, for maintaining a place for the manufacture of controlled substances, attempting to manufacture methamphetamine, being a felon in possession of a firearm, and criminal forfeiture. Combs asserts the district court erred in denying his motion to suppress evidence resulting from a search of his residence because the police did not physically knock on his door and therefore failed to adequately "knock and announce" before executing the search warrant. Whether the Fourth Amendment requires an actual "knock" on the door of a suspect's home before a search can be conducted is an issue of first impression in our circuit. We hold that under the totality of the circumstances presented in this case, the police acted reasonably in executing the warrant without first physically "knocking" on the front door of Combs's residence. Because there was no Fourth Amendment violation, we affirm the district court.
I.
Background
2
After receiving an anonymous tip, Anchorage Police began investigating possible methamphetamine production and drug trafficking at the home of Robert Combs. A search warrant issued, based upon information obtained from the investigation, to search Combs's home at any time of the day or night for evidence of misconduct involving controlled substances.
3
On the morning of September 12, 2002, the search warrant was executed with the assistance of a Crisis Intervention Response Team ("CIRT"), a tactical police unit trained and equipped to handle high risk raids on suspected methamphetamine labs, which may involve exposure to various flammable, explosive, and toxic chemicals. The CIRT officers wore protective gear consisting of flash fire resistant Nomex balaclavas, gas masks, one-piece Nomex flight suits and Kevlar vests with police insignia.
4
Anchorage Police Lieutenant Steven Smith was in command. He had spent nearly seventeen years with the Anchorage Police Department, ten of which were with the CIRT. During those ten years, Lieutenant Smith participated in somewhere between thirty to forty warrant services. In addition to Lieutenant Smith, approximately ten to twelve CIRT officers were involved in the entry of Combs's house. Six officers were to make the actual entry at the door at the back of the house, while four to six additional officers were to provide cover.
5
When Lieutenant Smith arrived at the scene, he noticed smoke coming from the chimney and an acrid smell in the air. He also noticed what appeared to be an open flame at a window in the northeast corner of the house. Because the smoke and flame indicated that the occupants might be involved in the dangerous process of cooking methamphetamine, he became concerned for the CIRT unit's safety. There were flood lights and two surveillance cameras attached to the house and the windows to the garage were papered over. The officers knew the house was occupied because a woman was seen entering the house just before the warrant was executed.
6
Service of the warrant commenced when Lieutenant Smith parked his marked police car, with the overhead lights flashing, in front of the house and began making announcements regarding the warrant service over the public address system in the front grill of the vehicle. Lieutenant Smith repeatedly publicly announced, for a period of thirty seconds to a minute, "Anchorage Police with a warrant for 1502 West 32nd Avenue."
7
Although Lieutenant Smith could not see the approach of the CIRT from the south of the building, he heard the entry team officers around the location announcing, "Anchorage Police with a warrant." Sergeant Soto, a member of the CIRT, was part of the group approaching the back door to make entry. Soto's role during the search was to be the "breacher." He carried a metal battering ram and halogen tools for this purpose. When the team members finished assembling at the door, they waited while Lieutenant Smith continued to announce the police presence with a search warrant. At some point, Soto's team leader told him to breach. Soto hit the door on the doorknob side with the battering ram four or five times without success. His team leader instructed him to hit the hinged side of the door. After two hits, the door broke open and the officers entered the house. Soto estimated that he spent a total of ten to twelve seconds pounding on the door with the battering ram.
8
The subsequent search of the house resulted in the seizure of, among other things, evidence of an active methamphetamine lab, firearms, and currency from drug trafficking. Officers also obtained a statement from Combs after he was placed under arrest and advised of his rights. Combs moved for suppression of all of this evidence, arguing in part that the manner of execution of the search warrant was unreasonable because the police failed to properly "knock and announce" before breaching the door.1
II.
Discussion
9
The common-law principle that law enforcement officers should "knock and announce" their presence and authority before entering a dwelling is part of the reasonableness inquiry under the United States Constitution's Fourth Amendment guarantee against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).2 However, "[t]he Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.... [T]he common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances." Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).3 A physical knock is only one factor to be considered in the reasonableness inquiry and is not determinative. See U.S. v. Chavez-Miranda, 306 F.3d 973, 980 (9th Cir.2002) (considering many factors in determining whether police entry was reasonable). Thus we must examine the totality of circumstances to determine whether a given search was reasonably executed.
A. The "Knock and Announce" Rule
10
That the government must announce its presence before entering a private home is a longstanding principle. In Wilson, the Supreme Court traced its origins to English common law. 514 U.S. at 931-33, 115 S.Ct. 1914 (surveying cases applying the knock and announce rule from the 17th and 18th Centuries and citing Blackstone, Sir Matthew Hale, and William Hawkins). The Court noted that the "common-law knock and announce principle was woven quickly into the fabric of early American law." Id. at 933, 115 S.Ct. 1914. It held that "the method of an officer's entry into a dwelling [is] among the factors to be considered in assessing the reasonableness of a search or seizure." Id. at 934, 115 S.Ct. 1914. The Wilson Court left to the circuit courts the development of circumstances under which an entry is deemed reasonable under the Fourth Amendment. Id. at 936, 115 S.Ct. 1914.
11
While the definition of "reasonableness" was left for another day, the Wilson opinion does provide guidance in determining what is reasonable. The Court set forth a non-exhaustive list of occasions when "the presumption in favor of announcement necessarily ... give[s] way to contrary considerations." Id. at 935, 115 S.Ct. 1914. It identified circumstances when the rule need not be strictly followed, such as when there is a threat of physical violence against law enforcement, when chasing a fleeing felon, or where evidence "would likely be destroyed if advance notice were given." Id. at 936, 115 S.Ct. 1914. The Court was careful to note that the examples it gave were not a "comprehensive catalog of the relevant... factors," but rather illustrations of circumstances that may carry weight in a reasonableness determination. Id.
12
Since Wilson, the Court has reiterated that the knock and announce principle is a part of the reasonableness inquiry rather than a prerequisite for constitutional entry. See U.S. v. Banks, 540 U.S. 31, 35-36, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (noting that the Court has "fleshed out" the notion of reasonable execution on a "case by case" basis "largely avoiding categories and protocols for searches"). Instead of setting bright-line, rigid rules, the Court has "treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case" because "it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones." Id at 36, 124 S.Ct. 521. See also Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting categorical exception to the knock and announce requirement for felony drug cases; favoring instead a case-by-case analysis).
13
B. The "Knock"
14
With this guidance from the Supreme Court, we cannot accept Combs's assertion that without a literal knock, the entry into his home was per se unreasonable under the Fourth Amendment. Nor can we accept the government's position that a knock is never necessary under the Fourth Amendment. Neither of these strict categorical approaches is consistent with the reasonableness inquiry laid out by the Supreme Court. See Banks, 540 U.S. at 41, 124 S.Ct. 521 (rejecting both the argument that damage to property should not be part of the reasonableness analysis and the argument that damage to property is a heightened factor). Rather, "[t]he focus of the `knock and announce' rule is properly not on what `magic words' are spoken by the police, or whether the police rang the doorbell, but rather on how these words and other actions of the police will be perceived by the occupant." U.S. v. Spikes, 158 F.3d 913, 925 (6th Cir.1998) (quotation omitted).
15
The general practice of physically knocking on the door, announcing law enforcement's presence and purpose, and receiving an actual refusal or waiting a sufficient amount of time to infer refusal is the preferred method of entry. See Banks, 540 U.S. at 43, 124 S.Ct. 521. This method is preferable because it provides a clear rule that law enforcement can follow. It also promotes the goals of the knock and announce principle: protecting the sanctity of the home, preventing the unnecessary destruction of private property through forced entry, and avoiding violent confrontations that may occur if occupants of the home mistake law enforcement for intruders. See Wilson, 514 U.S. at 935-36, 115 S.Ct. 1914; Spikes, 158 F.3d at 925.
16
Although "knock and announce" is the preferred method of entry, given the totality of the circumstances in a particular case, it is not invariably required by the Fourth Amendment. In some circumstances, it may be necessary to dispense with the knock and announcement entirely. See, e.g., U.S. v. Peterson, 353 F.3d 1045, 1049 (9th Cir.2003) (finding no-knock entry permissible because knock would have been futile, there was potential destruction of evidence, and danger to police officers). Other circumstances may warrant a knock and announcement, but only a relatively short delay before a forced entry. See, e.g., Banks, 540 U.S. at 39, 124 S.Ct. 521 (finding 15-20 second wait before entry reasonable given time of day and destructibility of the evidence). Under other circumstances, the police may not be justified in breaking down a door until they have waited a more extended period of time to infer a refusal of entry. See, e.g., id. at 41, 124 S.Ct. 521 (noting that "[p]olice seeking a stolen piano may be able to spend more time to make sure they really need the battering ram" since that evidence is not easily destroyed).
17
To determine whether an entry is reasonable, we must consider all the circumstances surrounding the entry, including, but not limited to, officer safety, Wilson, 514 U.S. at 936, 115 S.Ct. 1914, time of day, Banks, 540 U.S. at 40, 124 S.Ct. 521, destructibility of evidence, id., the size of the residence, the nature of the offense, and any other observations by law enforcement that would support a forced entry. See Bynum, 362 F.3d at 581; Chavez-Miranda, 306 F.3d at 980. We also must examine what, if any, notice the police gave before entry and the likelihood that the notice alerted those inside the home to the officer's presence and purpose. See Spikes, 158 F.3d at 927 (considering the police's bullhorn announcement an important factor in favor of reasonableness of entry). A physical knock, or any other one factor, is not dispositive.
18
In U.S. v. Spikes, the Sixth Circuit adopted this view in a case involving the "knock" component of knock and announce. In Spikes, the police announced their presence while running up the stairs to the front porch. Spikes, 158 F.3d at 919. Upon reaching the front door, they knocked on the door for about four seconds. Id. The defendant argued that in evaluating whether the police waited a reasonable amount of time before knocking down the door, the court should measure from the time of the knock, four seconds, and ignore the 15-30 seconds of announcement prior to the knock while the police ran up the stairs. Id. at 924. The Spikes court rejected this argument and instead analyzed the reasonableness of law enforcement's entry given the totality of the circumstances — taking into account the announcement prior to the knock, as well as the knock itself. Id. at 925.
C. Application of the Reasonableness Test
19
We conclude that the entry was reasonable in this case, even though a literal knock was not made. First, there was reason for the officers to be concerned for their safety. The house was equipped with security cameras and flood lights. Windows were papered over, suggesting that the occupants of the home were concerned with protecting their illegal methamphetamine laboratory. See U.S. v. Cline, 349 F.3d 1276, 1289-90 (10th Cir.2003) (finding the presence of surveillance cameras a factor in favor of the reasonableness of law enforcement's method of entry). In addition, after arriving at the scene, Lieutenant Smith noticed smoke coming from the chimney and what he thought to be an open flame at a window, indicating that the occupants may have been cooking methamphetamine — a dangerous process of mixing several highly explosive chemicals over an open flame.4 Given these circumstances, it was reasonable for Lieutenant Smith to limit the amount of time his officers spent outside but within arm's reach of the house.5
20
Second, the officers announced their presence to the extent possible given their legitimate safety concerns. They parked in front of the house in a marked police car with the overhead lights flashing. Lieutenant Smith repeatedly announced over a loudspeaker, "Anchorage Police with a warrant for 1502 West 32nd Avenue." Given the small size of the house, the time of day, the officer's knowledge that there was at least one occupant awake in the house, and that officers on the other side of the house heard the announcement, the district court's finding that "the residents of Combs' small home heard the police announce their presence and demand entry and disregarded that request" was not clearly erroneous. Moreover the occupants of the home could have had no doubt that the police had arrived to search their residence as the announcements repeatedly gave the street address of their home.
21
Given these circumstances, we find that law enforcement's actions were reasonable and the warrant's execution complied with the requirements of the Fourth Amendment. We do not suggest that the absence of any of these factors would compel a contrary conclusion. The factors we have listed are simply part of our "case by case" examination. Just as it is not permissible to "turn [ ] the notion of a reasonable time under all the circumstances into a set of sub-rules," likewise it is not appropriate to turn the knock and announce requirement "into a set of sub-rules." Banks, 540 U.S. at 41, 124 S.Ct. 521. "[A] categorical scheme on the general reasonableness analysis threatens to distort the `totality of the circumstances' principle, by replacing a stress on revealing facts with resort to pigeon holes." Id. at 42, 124 S.Ct. 521.
III.
Conclusion
22
Because the state police acted reasonably under the Fourth Amendment, the judgment of the district court is
23
AFFIRMED.
Notes:
*
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2)
1
Combs mistakenly frames the issue as whether the state police complied with 18 U.S.C. § 3109 in the course of serving the search warrant on his house. However, 18 U.S.C. § 3109 governs the conduct of federal officers, not state officers such as those involved hereUnited States v. Valenzuela, 596 F.2d 824, 829-30 (9th Cir.1979). Accordingly, Combs should have framed the issue as whether the state police acted reasonably under the Fourth Amendment. Nevertheless, because 18 U.S.C. § 3109 is the federal codification of the common-law knock and announce principle, it is relevant to our analysis.
2
Two types of factual patterns emerge in knock and announce cases: cases where there is no knock or announcement prior to entry, a so called "no-knock" entry,see, e.g., Wilson v. Arkansas, 514 U.S. 927, 937, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (police did not knock or announce prior to entering house), and cases where the court is analyzing the reasonableness of the announcement given by the police, see, e.g., U.S. v. Banks, 540 U.S. 31, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (discussing whether the length of time after police announcement was sufficient and finding announcement to be reasonable). The Supreme Court has noted that the same criteria bear upon the reasonableness inquiry in both types of cases; therefore we apply the same analysis to both types of cases. See id. at 35, 124 S.Ct. 521.
3
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's conclusions of law de novo and factual findings for clear errorUnited States v. Hammett, 236 F.3d 1054, 1057 (9th Cir.2001).
4
See Methamphetamine Laboratory Identification and Hazards, United States Department of Justice, National Drug Intelligence Center, available at http://www.usdoj.gov/ndic/pubs7/7341/# hazards (brochure describing hazards involved in producing methamphetamine).
5
We take care to note that "[t]he officers' concerns were not based on generalizations or stereotypes of drug dealers or narcotics investigations, but rather on particularized, articulable, and reliable information."U.S. v. Bynum, 362 F.3d 574 (9th Cir.2004). Thus, our analysis is in line with the Supreme Court's rejection of categorical exceptions for drug cases. Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).
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United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10236
Conference Calendar
MARIA F. WALLACE,
Plaintiff-Appellant,
versus
FOLEY'S DEPARTMENT STORES, a subsidiary of
May Department Stores,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-2939-D
--------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Maria F. Wallace moves this court to proceed in forma
pauperis ("IFP") in this appeal from the district court's
dismissal of her discrimination suit brought pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
The district court dismissed the suit as barred by limitations.
Wallace argues in her brief that the defendant failed to pay her
wages and benefits due when she left her employment in October
1998. The record shows that Wallace did not file an EEOC
*
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. 04-10236
-2-
complaint until September 24, 2003, well beyond the required 300-
day time period, and the district court correctly determined that
the suit is time-barred. See Frank v. Xerox Corp., 347 F.3d 130,
136 (5th Cir. 2003).
Because Wallace has not demonstrated a nonfrivolous issue
for appeal, her motion to proceed IFP is denied. See FED. R. APP.
P. 24(a). Because this appeal is without arguable merit, it is
dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2; see also Baugh v. Taylor, 117
F.3d 197, 201-02 (5th Cir. 1997).
MOTION FOR IFP DENIED; APPEAL DISMISSED.
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114 Mich. App. 532 (1982)
319 N.W.2d 362
PEOPLE
v.
BRET QUICK
PEOPLE
v.
BART QUICK
Docket Nos. 46646, 46650.
Michigan Court of Appeals.
Decided April 5, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy L. Cronin, Assistant Prosecuting Attorney, for the people.
Kim Robert Fawcett, Assistant State Appellate Defender, for defendants on appeal.
Before: N.J. KAUFMAN, P.J., and V.J. BRENNAN and CYNAR, JJ.
CYNAR, J.
Defendants were tried jointly, without a jury, on February 21 and 22, 1979, and were convicted of breaking and entering an occupied dwelling with intent to commit felonious assault, MCL 750.110; MSA 28.305, and felonious assault, MCL 750.82; MSA 28.277. On April 5, 1979, both defendants were sentenced to five years probation with the last six months to be served in the *534 Detroit House of Correction. The terms of probation included a requirement that the defendants finish high school or obtain GED certificates. Their jail terms will likely be suspended if the defendants comply with the terms of probation and stay out of trouble. Defendants appealed as of right and filed motions for peremptory reversal, which were denied.
Defendants contend that their convictions must be reversed, since the record does not show that the defendants made a knowing, intelligent waiver of their right to trial by jury in open court as required by statute. We disagree.
Both defendants executed written waivers of a jury trial, dated February 21, 1979, which was the day trial began. Additionally, each written waiver of a jury trial has a clerk's stamp indicating it was filed on February 21, 1979.
On the record, the only exchange before trial on February 21, 1979, in reference to the waiver of a jury is as follows:
"[Assistant Prosecutor]: People are ready to proceed at this time.
"[Defense Counsel]: We're ready, your Honor.
"The Court:" All right.
"I see this is a waiver trial by jury, is that correct?
"[Defense Counsel]: Yes, sir, it is.
"The Court: All right.
"[Defense Counsel]: I think we tendered our waiver signed by each of my clients.
"The Court: Yes, they are both signed. Would you like to make an opening statement?"
At common law, a criminal defendant could not waive his right to trial by jury. People v Henderson, 246 Mich 481; 224 NW 628 (1929). In Michigan, the right to waive a jury trial in a criminal *535 case is now provided for in MCL 763.3; MSA 28.856, which states:
"Sec. 3. (1) In all criminal cases arising in the courts of this state, the defendant shall have the right to waive a determination of the facts by a jury and may, if he or she elects, be tried before the court without a jury. Except in cases of minor offenses, the waiver and election by a defendant shall be in writing signed by the defendant and filed in the case and made a part of the record. The waiver and election shall be entitled in the court and case, and in substance as follows: `I, ____, defendant in the above case, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which the case may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.'
_______________________
"Signature of defendant.
"(2) Except in cases of minor offenses, the waiver of trial by jury shall be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel."
The constitutionality of this statute has been upheld. Henderson, supra.
However, because this statute is in derogation of the common law, it must be strictly construed. That is, no effective waiver will result except through strict compliance with the mandates contained in the statute. People v Hamm, 100 Mich App 429; 298 NW2d 896 (1980), People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), People v Henry Brown, 57 Mich App 568; 226 NW2d 563 (1975). Consequently, Michigan courts have held that, to be valid, a waiver of jury trial must be made after the defendant's having had the opportunity to consult with counsel, must be *536 in writing, and be made in open court. People v Woody,, 25 Mich App 627; 181 NW2d 621 (1970), People v Hood, 28 Mich App 553; 184 NW2d 527 (1970), People v Jones, 36 Mich App 150; 193 NW2d 197 (1971), People v McKaig, 89 Mich App 746; 282 NW2d 209 (1979). Likewise, the right to a jury trial cannot be waived by defense counsel, People v Slappy, 59 Mich App 525; 230 NW2d 4 (1975), or the court, Cahill v 15th Dist Judge, 70 Mich App 1; 245 NW2d 381 (1976), nor will a waiver be presumed from a silent record. Slappy, supra, People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974). Finally, the defendant's failure to object to a nonjury trial, while indicating assent to the jury waiver, does not preclude appellate review. People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975), People v Edwards, supra.
The issue in this case is whether the inquiry by the trial court, coupled with the written pretrial waivers by defendants, satisfy the statutory requirement that the waivers be "made in open court". Michigan law is in conflict on this issue.
In People v Rimmer, supra, the Court held that, where the record disclosed a written waiver executed by the defendant more than three months before trial but nowhere disclosed that there was an oral waiver before or at trial, the defendant had not waived his right to a jury trial in open court. Similarly, in People v Word, 67 Mich App 663; 242 NW2d 471 (1976), the Court found the defendant's waiver of a trial by jury to be ineffective where the defendant had executed a written waiver but nowhere in the transcript was there an oral acknowledgment of the waiver of a jury. In neither case did the Court discuss the issue of whether the oral acknowledgment must be made by the defendant or whether it may be made by defense counsel.
*537 In People v Blackmon, 95 Mich App 462, 464; 291 NW2d 82 (1980), the defendant executed a written waiver of jury trial before a court clerk on the day of trial. At trial, the following response was made to the court's questioning:
"`The Court: Have you filed a written waiver?
"`Mr. Harris: Yes, your Honor.'"
The Blackmon Court held as follows:
"The question before this Court is whether the statutory requirement of a waiver `made in open court' is met by evidence on the record that a written waiver was executed by the defendant on the date of trial and was referred to by defense counsel as filed in response to the court's inquiry in that regard. We hold that the above facts do not constitute sufficient compliance with the statutory direction." Id.
In the recent case of People v Corbin, 109 Mich App 120, 122; 310 NW2d 917 (1981), the Court also held that the defendant's waiver of a jury trial was ineffective. There, the defendant signed a written waiver form of the day of trial which stated in part:
"`I, having had opportunity to consult with counsel, do hereby in open court voluntarily waive and relinquish my right to a trial by jury * * *'."
The form was signed by the deputy clerk but not by the judge. Except for the clerk's statement "this is a waiver", the transcript made no reference whatsoever to the defendant's waiver of jury trial. The Corbin Court acknowledged that oral acknowledgment is not necessary where it is otherwise apparent that the waiver took place in open court *538 but found that, as in Blackmon, the record failed to establish sufficiently that the waiver was made in open court. The Court reasoned as follows:
"[W]e find it difficult to conclude that the waiver was made `in open court' when the transcript of the proceedings taking place `in open court' contains no discussion of the matter." Id., 123.
Several cases decided by panels of the Court of Appeals have used the reasoning that oral acknowledgment by the defendant is not required to uphold waivers of jury trials. The leading case is McKaig, supra. There, the defendant alleged that reversible error occurred because he was denied an opportunity to acknowledge orally the waiver of jury trial in open court before the trial judge. The defendant had signed the waiver form on the day of trial, and it was acknowledged as filed by the court clerk on the same date. The majority of the Court, with Judge T.M. BURNS dissenting, rejected the defendant's argument and stated:
"[T]here cannot be a hard and fast rule for every case. A valid waiver does not require an oral acknowledgement where it is apparent that the waiver was made in open court. In cases such as the present, where the waiver is signed and filed the same day as the commencement of trial, the defendant is represented by an attorney, and the defendant does not claim that he did not sign the waiver in open court after having the opportunity to consult with his attorney, the statute is strictly complied with. See People v Woody, 25 Mich App 627, 629; 181 NW2d 621 (1970), lv den 384 Mich 822 (1971).
"We encourage trial judges to supplement the written waiver with an oral acknowledgment by the defendant. This practice eliminates any doubt as to whether or not the waiver was made in open court. However, the *539 statute does not require an oral waiver and we decline to impose that requirement on trial judges." People v McKaig, supra, 750-751.
People v Braxton, 91 Mich App 689; 283 NW2d 829 (1979), provides further support for the prosecutor's position. In Braxton, the defendant was accompanied by counsel when he executed a waiver of jury trial over a month before the commencement of trial. At the time of trial, the trial court stated: "Let the record show that the defendant has executed a written waiver of trial by jury." There was no questioning of the defendant by the court and defendant said nothing. The Braxton Court, with Judge T.M. BURNS dissenting, held that a written waiver of jury trial executed by defendant before a court clerk with his attorney present, when coupled with the reference to the waiver form made by the trial judge in the presence of defendant and his counsel immediately prior to trial, was sufficient to satisfy the statutory requirement that the waiver of the right to a jury trial shall be in open court.
In People v Carl Johnson, 99 Mich App 547, 551-552; 297 NW2d 713 (1980), the following colloquy occurred between the trial judge, defense counsel, and the prosecutor in open court on the first day of trial:
"`The Court: Very well. Now, at this time I want to check and do I understand that there is no question but what the defendant has signed a written waiver of jury trial and filed it?
"`Mr. Seaman: That's correct, your Honor.
"`The Court: You agree on that?
"`Mr. Hamlin: Yes, your Honor.
"`The Court: Very well. Thank you. You may now proceed with your opening statement, Mr. Hamlin.'" *540 The Court, citing McKaig, supra, stated that a valid waiver does not require an oral acknowledgment where it is apparent that the waiver was made in open court. The Court concluded that the defendant's rights were adequately protected.
We conclude that the facts in the instant case do establish that valid waivers were made by defendants of their right to jury trial. The defendants signed written waivers of their right to a jury on the date of trial. These waivers were then acknowledged in open court by defense counsel in the presence of both defendants.
Affirmed.
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918 N.E.2d 448 (2009)
Bradley J. LOVE, Appellant-Plaintiff,
v.
Robert REHFUS, Individually and in His Capacity as Fire Chief of the Sugar Creek Township Fire Department, and Sugar Creek Township, Appellees-Defendants.
No. 30A01-0905-CV-250.
Court of Appeals of Indiana.
December 22, 2009.
*450 Andrew P. Wirick, Hume Smith Geddes Green & Simmons, LLP Indianapolis, IN, Attorney for Appellant.
Steven C. Jackson, Ferguson & Ferguson Bloomington, IN, Attorney for Appellees.
OPINION
RILEY, Judge.
STATEMENT OF THE CASE
Appellant-Plaintiff, Bradley J. Love (Love), appeals the trial court's grant of summary judgment in favor of Appellees-Defendants, Robert Rehfus (Chief Rehfus), individually and in his official capacity as Fire Chief of the Sugar Creek Township Fire Department, and the Sugar Creek Township (the Township) (collectively, Appellees). We reverse and remand for further proceedings.[1]
ISSUES
Love raises two issues on appeal, which we restate as follows:
(1) Whether the trial court erred by concluding as a matter of law that Love was properly terminated from his position as a volunteer and part-time fireman because his email commenting on the financial situation of the Township's fire department was not protected by the First Amendment to the United States Constitution; and
*451 (2) Whether the trial court erred by concluding as a matter of law that municipal liability could not be established through the conduct of Chief Rehfus.
FACTS AND PROCEDURAL HISTORY
In 2006, Love was an employee of the Sugar Creek Township Fire Department, serving as a volunteer and part-time firefighter. That year, the Township's Trustee, CO. Montgomery (Montgomery), ran for re-election, while being opposed by Bob Boyer (Boyer), who was a volunteer firefighter until his resignation to run for the office of Trustee. The firefighters at the fire department were divided in their support for the respective candidates. Love supported Boyer, whereas Chief Rehfus supported the incumbent.
On April 26, 2006, while off-duty and from his home computer, Love responded to an email he had received from an individual concerned about township land development for parks. Love's response amounted to an email in support of Boyer's candidacy for Trustee in which he discussed certain issues which were the topic of the primary election scheduled for May of 2006. This email, sent to several individuals in the community who were related to the New Palestine Cadet Football League, stated as follows:
Unfortunately this [the allegation that Boyer intends to sell the township parks] is just not true !!!
I have been on the board of directors for the New Palestine Cadet Football League for 6 years. I have been active in our pursuit of raising funds to help with the parks board. I am pushing for the parks as much as anyone, in fact even more than most.
I have been on the fire dept. here in town since 1994 and have known Bob since then. I asked him face to face if this rumor is true, and he flat denies it. Bob may be a lot of things, but a liar is not one of them. The sad issue actually is that this rumor has been started by career firefighters that are afraid of loosing [sic] free reigns of the check book. They have stated this and several rumors to take away from the real issues. The fact is that most of these firefighters want to tell us how to vote, but they don't think our community is good enough to live in.
Bob is not going to lay firefighters off nor cut their benefits either. He will take away unnecessary cars and put people back on shift that should be there anyway.
THE REAL ISSUES ARE:
Our fire dept. expenditures have quadrupled since 1999.
We have 5 new sport utility vehicles that have been purchased in the last 4 years that are given to officers to have free use of. I see them in Castleton, Greenwood and all over the State. We pay for them, gas and insurance. These gas guzzling SUV's are being driven home to Anderson, Greenfield, Franklin Township, and other areas outside of the township every day and YOU pay for it. They do not make emergency runs after 4pm and are just a perk that WE pay for. Large cities like Warren Twp, Lawrence Twp, City of Lawrence, Pike, Perry, and others do not have this many take home cars, and they sure don't give the cars they have to Lieutenants or Captains like we do.
Our Tax Rate is 140% higher than any other Township in the County, that includes Greenfield.
Our current trustee has given himself a 29% pay raise since 1999.
We just took out a $700,000.00 emergency loan to pay for firefighters we hired *452 that we did not have the money for, nor do we need. We could have put some current personnel back on shift and took away their 7-4 jobs that we don't need to accomplish the same thing. We make 1,300 emergency calls with the same number of people that Greenfield makes over 4,000 calls with. WHY???
The current administration says that their gross spending habits do not affect tax rate, but where does the money come from to pay for all of this.
I train firefighters all over the State of Indiana and Northern Kentucky and have worked in Ohio, Illinois and Michigan as well. I see everyone and how they do things. This is the worst managed spending I have ever seen in my 9 years of working with 100's of fire depts.
I support Bob because he is a CPA and business man, not a driving instructor. He knows better how to handle funds of a Multi Million Dollar Business.
Who would YOU hire to manage your personal funds, a CPA or a Driving Instructor? ?!!? ?
I ask you support Bob Boyer because he is more qualified for the job and addresses current issues and not made up rumors.
Respectfully,
[Love]
(Appellant's App. pp. 76-77).
On or about May 17, 2006, Chief Rehfus terminated Love. Explaining the reasons for the termination, Chief Rehfus stated in a letter to Love that
Sir:
While it is every person's [sic] right to support and vote for whoever they so choose, it is totally inappropriate to lie about a person or several persons. One of those persons that you lied about was me in an E-mail to the New Palestine Soccer League.
To be specific you stated that I did not make runs after 1600 hours. That would be a lie and you know it.
None of the administration thinks that Sugar Creek Township is good enough for them to live in. That would be lie number two because two of us live in the township. Where is the rule that says you must live in the township in order to work here?
Lie number three is that we have more take home vehicles than any other fire department. You already know that is incorrect, but you will obviously say anything that will embellish your lies.
Effective this date you are terminated from this department for conduct unbecoming a firefighter, and failure to be truthful. Lying about the Chief of the Department is an inexcusable offense.
(Appellant's App. p. 99).
On May 30, 2007, Love filed his Complaint for Damages, Injunctive and Declaratory Relief, and Request for Trial by Jury. On January 23, 2009, Appellees filed their Motion for Summary Judgment alleging that (1) Love's First Amendment Rights were not violated because false statements disseminated to the public are not protected political speech and (2) the theory of respondeat superior is not applicable under a § 1983 claim. On April 10, 2009, Love filed his Memorandum in Opposition and Designation of Evidence. On April 27, 2009, the trial court held a hearing on Appellees' Motion for Summary Judgment and the next day, the court entered its Order summarily granting judgment for Appellees and dismissing Love's claims.
Love now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
This cause comes before this court as an appeal from a grant of summary judgment. *453 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct.App.2008). Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.
II. Freedom of Expression
Love contends that the trial court erred in concluding as a matter of law that he did not engage in a protected First Amendment activity. His argument focuses on the fact that the content of his email was substantially true and was not damaging to the operation of the Township's fire station. On the other hand, while Appellees do not dispute that Love's email contained political speech and is the reason for his termination, Appellees argue that "recklessly false statements made by a public employee enjoy no First Amendment protection." (Appellees' Br. p. 12).
Love commences the discussion in his appellate brief by quoting at length from Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), standing for the proposition that governmental employees cannot be discharged because of their political affiliation. Here, as also pointed out by Appellees, it is clear that Love was not discharged because he supported the incumbent running for a trustee position; rather the record establishes that Love was terminated because of the content of his email to the football league. Accordingly, Elrod and its progeny are inapplicable to the instant cause.
With regard to protected First Amendment speech, it is well settled that "a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). For many years "the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employmentincluding those which restricted the exercise of constitutional rights." Id. at 143. That dogma has been qualified in important respects. Our Supreme Court has made clear that public employees do not surrender all of their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e.g., Pickering v. Bd. of Ed. Of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Pickering, the Court stated that "[t]he problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the *454 interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id.
Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to speech made by a public employee. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See id. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. See Connick, 461 U.S. at 147, 103 S.Ct. 1684. If the answer is yes, the possibility of a First Amendment claim arises. The question then becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
The Supreme Court's overarching objectives in formulating its First Amendment case law are clear. When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g., Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion). Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of government services. Cf. Connick, 461 U.S. at 143, 103 S.Ct. 1684. At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. So long as employees are speaking as citizens about a matter of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Id. at 147, 103 S.Ct. 1684. With these principles in mind, we now turn to the instant case.
A. A Matter of Public Concern
Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. The Connick Court described speech upon matters of public concern as "relating to any matter of political, social, or other concern to the community." Id. at 146, 103 S.Ct. 1684. Here, the parties do not dispute that the content of Love's email addresses a matter of public concern. While Love's email was sent from his private email address and on his private computer, in its content, Love criticizes the efficiency and financial stability of the Township's fire department while openly supporting the incumbent in the upcoming trustee election. He did not make these statements pursuant to his official duties as a member of the fire department, rather he was commenting as a disgruntled citizen on the day-to-day functioning of the local fire department. See Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Even though Love's email was sent to a limited public and expressed his own private impressions on certain public issues related to the upcoming township trustee election, this characterization does not vitiate the status of the statement as addressing a matter of public concern. See Givhan v. Western Line Consol. School Dist. 439 U.S. 410, 414-16, 99 S.Ct. 693, 695-97, 58 L.Ed.2d 619 (1979).
B. Balancing of Competing Interests
The main issue in this cause revolves around the "balancing of competing interests" and whether Love's speech was restricted beyond that necessary for the efficient and effective operation of the fire *455 department. See Pickering, 391 U.S. at 568, 88 S.Ct. 1731. While Love, as a public employee, retained a right to become involved in public discourse; on the other hand, he also was employed as a member of a paramilitary organization with a heightened need for discipline and a greater potential for public harm in the face of dissention within its ranks.
Both parties approach this issue from opposite directions. Love bases his argument on Pickering and dissects the general impact of his email using the seven factors deemed important by Pickering. Conversely, Appellees focus on the false or recklessly false statements they claim were included in Love's email. In this regard, Appellees reference Love's statements concerning the use of the department owned vehicles. While Love stated in his email that the five new vehicles are considered take-home vehicles for the firefighters living outside the Sugar Creek Township and do not make emergency runs after 4 p.m., Appellees point out that Chief Rehfus uses one of these vehicles and frequently makes emergency runs after 4 p.m., In addition to this statement, Appellees also dispute the truthfulness of Love's information regarding the number of emergency calls. Relying mainly on case law from the Seventh Circuit, Appellees now contend that these statements justified Love's termination because false statements do not enjoy First Amendment protection.
The only Indiana case closely related to the facts at hand is City of Kokomo v. Kern, 852 N.E.2d 623 (Ind.Ct.App.2006), trans. denied. In Kern, Kern, a captain firefighter and organizer of a fireworks display in his neighborhood, was instructed by his Chief to obtain a permit for the fireworks display. Id. at 625-26. However, privately, the Chief indicated that he hesitated granting Kern an expedited permit because he "didn't owe him any favors" as Kern had opposed a certain individual in the past primary election for mayor. Id. at 626. Kern obtained an application for the display and submitted the partially completed application to the Chief. Id. The Chief advised Kern that he would not approve an incomplete permit application. Id. Consequently, the planned fireworks display was cancelled. Id. Thereafter, local newspapers published articles about the cancellation and quoted Kern who alluded to a "personal vendetta." Id. Although Kern admitted that he never got a license, he was also quoted as saying "We completed the rest of the process, and the state fire marshall told us there was no reason why our permit couldn't be signed. But the Chief dragged his feet." Id. The Chief filed a professional standards complaint against Kern. Id. Eventually, Kern was demoted to the rank of firefighter. Id. at 627.
In our analysis, we applied the Connick/Pickering test to Kern's speech. Id. After determining that Kern, a public employee, voiced his statements as a disgruntled citizen and touched upon matters of public concern, we turned to the matter of balancing competing interests. Id. at 629. After noting, in passing, the misleading nature of Kern's statements, the Kern majority focused exclusively on the effect of Kern's speech on the operational effectiveness of the fire department. Id. at 630. Specifically, the majority referred to the Chief's testimony of intra-department disruption and the fact that "firefighters were not greeted with happy faces." Id.
Judge Kirsch dissented on the balancing of competing interests test. Id. Judge Kirsch pointed out that
Exposing governmental misconduct and inefficiency is a matter of significant societal importance. Oftentimes, a public employee is the only one having the *456 firsthand knowledge and experience to do so. Restrictions on speech by public employees and reprisals for such speech have a chilling effect on its legitimate exercise. Restrictions on the ability of a public employee to speak as a private citizen on matters of public importance also restrict the public's right of access to meaningful information about its government. Accordingly, such restrictions should be viewed with skepticism.
Id.
Turning to the evidence, Judge Kirsch noted the absence of any evidence connecting the lack of smiling faces to Kern's statements. Id. at 731. More importantly, Judge Kirsch stated that there is no showing that the efficiency of the department was impaired. Id. Specifically, there was no evidence that the response times or outcomes were affected; there was no evidence the safety of the firefighters or the public was in any way compromised; and there was no evidence that any firefighter failed to perform his or her duties. Id.
While the overall facts in Kern present similarities to Love's situation, we nevertheless notice some important distinctions. In Kern, Kern made a personal attack on the Chief's integrity which was widely publicized by a local newspaper; whereas Love uttered his general disapproval of the effectiveness and the financial stability of the local fire department in a private email to a limited public.
Although the facts are easily distinguishable, the Kern court's analysis guides the instant situation. The Kern court based its legal scrutiny on United States Supreme Court case law that focuses on the necessity to prove damage. This case law indicates that if no damage is proven, then the statements may be protected even if they are false. In Pickering, the Supreme Court expressly declined to adopt a rule directing that knowingly or recklessly false statements are per se unprotected. It stated that "we do not deem it appropriate or feasible to attempt to lay down a general standard against which [public employee] statements may be judged." Pickering, 391 U.S. at 569, 88 S.Ct. 1731. Although the fact that a statement is recklessly false may well create a presumption that the employee's interest in uttering it is subordinate to the government's interest in suppressing it, the Court has preserved the possibility that such a statement may be protected if it resulted in no actual harm to the employer. Id. at 574 n. 6, 88 S.Ct. 1731.
This case law is explicitly followed by our Indiana supreme court. In Indiana Dept. of Highways v. Dixon, 541 N.E.2d 877, 882 (Ind.1989), our supreme court quoted extensively to Pickering, stating that "In Pickering, the Court determined that absent a showing that the statements were knowingly or recklessly false, the mere fact that they were false cannot be the basis of an employer's dismissal. Even if there were such a showing, absent actual and significant harm, such statements may be protected." Id. (internal citations omitted; emphasis added). The court concluded that "Dixon's statements are protected even though they may have been false." Id.
Here, the parties' briefs do not indicate any specific evidence showing that Love's email caused actual or significant harm to the fire department. However, the designated evidence in the appendix shows that political fliers were posted in the firehouse; and that firefighters supporting Boyer were "shunned. Nobody would talk to them." (Appellant's App. p. 107). Also there were "rumors" that when Boyer's supporters walked "into a room[,] the other employees would walk out, or not speak to them, turn off the TV, things like that." (Appellant's Appendix p. 114). This tension *457 may have been caused by the contested nature of the election as opposed to Love's email.
Overall, while the specific impact of the speech weighs more heavily in favor of the government entity when paramilitary organizations are involved because of the public safety implications, here, we cannot say that Love's email impacted the operational effectiveness of the fire department. The designated evidence indicating merely a "trace" of impact of Love's email on the fire department is based on rumors and innuendo. There is a complete lack of evidence suggesting intra-department disruption or any other actual or significant harm to the fire department. In absence of any evidenced harm, we do not need to evaluate whether Love's statements were false and recklessly made and whether this warrants the denial of First Amendment protection. As a result, we conclude that the trial court incorrectly applied the facts to the law and we reverse the trial court's grant of summary judgment in favor of Appellees.
II. Municipal Liability
As a second issue, Love contends that because the termination decision was made by a policy-maker of the Township fire department, the municipality can be held liable pursuant to Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). On the other hand, Appellees argue that Love's application of Pembaur is "partial and flawed." (Appellees' Br. p. 19).
It is well established that "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). In Monell, our supreme court determined that local government units could be held liable under § 1983 for deprivations of federal rights. However, Monell also cautioned that a municipality cannot be made liable by application of the doctrine of respondeat superior. Id.
The Supreme Court clarified these principles in Pembaur by stating that a municipality may be liable only if the deprivation is caused by acts that are, properly speaking, acts of the municipality itself. Pembaur, 475 U.S. at 478, 106 S.Ct. 1292. This means that to be the basis for municipal liability under § 1983, tortuous conduct generally must be pursuant to a municipality's official policy made either by the municipality itself or by someone responsible for establishing policy. Id. at 478-83, 106 S.Ct. 1292. However, it should be noted that municipal liability attaches only where the decision-maker possesses final authority to establish municipal authority with respect to the action covered. Id. at 481, 106 S.Ct. 1292. The fact that a particular officialeven a policymaking officialhas discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. Id. at 482, 106 S.Ct. 1292. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. Id. at 483, 106 S.Ct. 1292.
To elaborate on these principles, the Pembaur Court gave the following example:
The County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. If this were the case, the Sheriff's decisions respecting employment would not give rise to municipal liability, although similar decisions with respect to law enforcement *458 practices, over which the Sheriff is the official policymaker, would give rise to municipal liability. Instead, if county employment policy was set by the Board of County Commissioners, only that body's decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriff's decisions would represent county policy and could give rise to municipal liability.
Id. at 483 n. 12, 106 S.Ct. 1292 n. 12.
Turning to the instant case, the designated evidence establishes that Chief Rehfus was responsible for the "overall operation of the department" and was "accountable to the trustee of the township." (Appellant's App. p. 81). Chief Rehfus testified that he did not need approval "from anyone, such as the trustee, to send the termination letter." (Appellant's App. p. 92). This testimony was corroborated during the oral argument when counsel for Appellees elaborated that when an employee is placed on probation, the Township Board of Trustees delegates the final employment decision to the fire department's Chief. Here, at the time of his termination, Love was on probation for matters unrelated to the cause at hand at the time and, as such, Chief Rehfus had final authority to terminate Love. Pursuant to Pembaur's holding, Chief Rehfus' decision represented county policy and gave rise to municipal liability. Therefore, we reverse the trial court's grant of summary judgment in favor of Appellees.
CONCLUSION
Based on the foregoing, we find that the trial court erred by concluding as a matter of law that Love was properly terminated from his position as a volunteer and part-time fireman because his email commenting on the financial situation of the Township's fire department was not protected by the First Amendment to the United States Constitution. In addition, we find that the trial court erred by concluding as a matter of law that municipal liability could not be established through the conduct of Chief Rehfus.
Reversed and remanded for further proceedings.
FRIEDLANDER, J., and CRONE, J., concur.
NOTES
[1] We held oral argument in this case on November 3, 2009 at the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We thank counsel for their excellent advocacy.
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11-3335-ag
Drejaj v. Holder
BIA
LaForest, IJ
A095 837 777
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 31st day of May, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
______________________________________
PRANVERE DREJAJ,
Petitioner,
v. 11-3335-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Linda S. Wernery, Assistant Director;
Theodore C. Hirt, Trial Attorney, Office
of Immigration Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Pranvere Drejaj, a native and citizen of
Albania, seeks review of a July 18, 2011 order of the BIA
affirming the July 24, 2008 and April 14, 2003 decisions of
Immigration Judge (“IJ”) Brigitte LaForest denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re
Pranvere Drejaj, No. A095 837 777 (B.I.A. July 18, 2011)
aff’g No. A095 837 777 (Immig. Ct. N.Y. City July 24, 2008)
modifying No. A095 837 777 (Immig. Ct. N.Y. City Apr. 14,
2003). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We have reviewed the IJ’s modified decision as
supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because
Drejaj filed her asylum application in August 2002, this
case is not governed by the REAL ID Act. We thus review the
agency’s credibility determination to see if it was based on
2
“specific, cogent” reasons bearing a “legitimate nexus” to
the finding. See Secaida-Rosales v. INS, 331 F.3d 297, 307
(2d Cir. 2003) (internal quotation marks omitted).
In this case, the IJ reasonably found that Drejaj’s
testimony about her July 2001 detention was inconsistent
with her written statement because when asked by her
attorney about her detention she did not mention her sexual
assault or threats made against her. Contrary to Drejaj’s
argument, the IJ did not err in relying on these omissions
because they were not minor details, but core facts about
her detention which went “to the heart” of her asylum claim.
Id. at 309. Moreover, the IJ gave Drejaj an opportunity to
explain why her testimony about her detention differed from
her written statement, and was not required to accept her
explanation that she was confused about what her attorney
was asking. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
Cir. 2005).1
Drejaj’s testimony describing her October 2000
interrogation, in which she stated that she was asked
1
Drejaj for the first time argues that she did not
testify about the sexual assault because her attorney was
a man and she had experienced sexual trauma. However,
she did not raise this explanation in front of the agency
and her attorney’s unsworn statements do not constitute
evidence. See INS v. Phinpathya, 464 U.S. 183, 188 n.6
(1984).
3
questions about the Democratic Party but did not identify
specific questions, also undermined her credibility. The IJ
reasonably concluded that it was implausible that the
authorities who allegedly interrogated Drejaj would not have
asked her any questions more specific than “what the
Democratic Party planned for the future.” Certified
Administrative Record (“C.A.R.”) 175. Thus, the IJ did not
err in finding that her sparse testimony about the
interrogation suggested that it was fabricated. See Jin
Shui Qiu v. Ashcroft, 329 F.3d 140, 151-52 (2d Cir. 2003),
overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296 (2d Cir. 2007) (en banc) (providing
that, after probing for specific details, an IJ may “fairly
wonder whether [] testimony is fabricated” when an applicant
“gives very spare testimony,” lacking in details).
Moreover, the IJ also reasonably concluded that
Drejaj’s limited explanations about the Democratic Party’s
plans -- asserting that it supports “rights” without any
details, see C.A.R. 176 -- and inability to identify the
party’s 2001 candidate undermined her credibility because
she lacked knowledge one would reasonably expect of a
political activist who worked for the party in the 2001
election. Cf. Rizal v. Gonzales, 442 F.3d 84, 90-91 (2d
4
Cir. 2006) (cautioning that the agency may only rely on an
asylum applicant’s ignorance of a religion to find that his
testimony is not credible where his other testimony “would
render his lack of a certain degree of doctrinal knowledge
suspect”).
Having questioned Drejaj’s credibility in light of the
above findings, the IJ did not err in concluding that her
credibility was further undermined by her failure to provide
corroborating evidence from her brother or mother. See
Chuilu Liu v. Holder, 575 F.3d 193, 197-98 (2d Cir. 2009).
Contrary to Drejaj’s argument, because the IJ made her
corroboration finding in the context of an adverse
credibility determination, the IJ was not required to first
identify the particular pieces of missing relevant evidence,
before finding that Drejaj failed to provide corroboration.
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341
(2d Cir. 2006). Because there was no evidence to the
contrary, we defer to the IJ’s conclusion that Drejaj’s
mother and brother -- who both lived in New York City --
were reasonably available to testify at her New York City
hearing. See 8 U.S.C. § 1252(b)(4) (“No court shall reverse
a determination made by a trier of fact with respect to the
availability of corroborating evidence . . . unless the
5
court finds . . . that a reasonable trier of fact is
compelled to conclude that such corroborating evidence is
unavailable.”).
In sum, the agency’s adverse credibility determination
was supported by substantial evidence because the IJ
identified “specific, cogent” reasons for doubting Drejaj’s
credibility. See Secaida-Rosales, 331 F.3d at 307 (internal
quotation marks omitted). Accordingly, the agency did not
err in denying relief because Drejaj’s claims for asylum,
withholding of removal, and CAT relief arose from the same
factual background, her claim that she was persecuted as a
political activist. See Paul v. Gonzales, 444 F.3d 148, 157
(2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
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OSCN Found Document:WATSON v. STATE
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WATSON v. STATE2015 OK CR 3Case Number: PC-2014-637Decided: 02/17/2015STANLEY WATSON, Petitioner, v. STATE OF OKLAHOMA, Respondent.
Cite as: 2015 OK CR 3, __ __
ORDER AFFIRMING DENIAL OF SECOND
APPLICATION FOR POST-CONVICTION RELIEF
¶1 The Petitioner has appealed to this Court from an order of the District Court of Comanche County denying his second post-conviction motion requesting DNA testing in Case No. CF-2000-428. In that case, Petitioner was tried by a jury and convicted of Murder in the First Degree. He was sentenced in accordance with the jury's verdict to life imprisonment. Petitioner appealed to this Court and his Judgment and Sentence was affirmed. Watson v. State, No. F-2001-1356 (Okl.Cr. November 4, 2002) (not for publication).
¶2 On January 6, 2014, Petitioner filed in the District Court his first post-conviction motion requesting DNA testing, pursuant to the Postconviction DNA Act, 22 O.S.Supp.2013, §§ 1373 - 1373.7 (effective November 1, 2013). On March 4, 2014, the District Court issued an order denying Petitioner's first motion concluding that, because Petitioner failed to provide the necessary affidavit, he was not eligible for DNA testing pursuant to 22 O.S.Supp.2013, § 1373.2(C). Petitioner appealed to this Court from that District Court order and the appeal was dismissed because it was not timely filed. Watson v. State, No. PC-2014-302 (Okl.Cr. April 17, 2014). On April 7, 2014, Petitioner filed in the District Court a second post-conviction motion requesting DNA testing. On June 17, 2014, the District Court denied Petitioner's second motion finding Petitioner had not raised any issue in his second motion that either was not or could not have been raised in his first post-conviction motion requesting DNA testing. The District Court concluded that the grounds for relief Petitioner asserted could not be the basis of his second motion. Petitioner has filed this appeal from the District Court order denying his second post-conviction motion requesting DNA testing.
¶3 This Court has recognized that the procedure for any appeal under the Postconviction DNA Act is the same as an appeal to this Court under the Uniform Post-Conviction Act, as set forth in 22 O.S.2011, § 1087. State ex rel. Smith v. Neuwirth, 2014 OK CR 16, ¶ 11, 337 P.3d 763, 765-66 (citing 22 O.S.Supp.2013, § 1373.7, "An appeal under the provisions of the Postconviction DNA Act may be taken in the same manner as any other appeal"). We now find that, after a first post-conviction motion requesting DNA testing has been finally decided by the courts, the procedural bar provisions in Section 1086 of the Uniform Post-Conviction Act apply to the petitioner's second or subsequent post-conviction motion requesting DNA testing under the Postconviction DNA Act.
¶4 Under the Uniform Post-Conviction Act, all grounds for relief available to an applicant must be raised in his original, supplemental or amended application. 22 O.S.2011, § 1086. Any ground finally adjudicated or not so raised in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application. Id.
¶5 Although the Postconviction DNA Act does not expressly include a procedural bar like that found in Section 1086, the Act only provides that a person may file "a motion." 22 O.S.Supp.2013, § 1373.2(A). Throughout the Act that motion is referred to in the singular number, indicating multiple motions are not intended. 22 O.S.Supp.2013, §§ 1373.2(C), (D), 1374.4(A), (C), 1373.5(B)(1), 1373.6(A). The Postconviction DNA Act does state that the person may file the motion "[n]otwithstanding any other provision of law concerning post-conviction relief." 22 O.S.Supp.2013, § 1373.2(A). However, we do not find that provision is intended to preclude use of the procedural bar found in the Uniform Post-Conviction Act. 22 O.S.2011, § 1086. We find the provision in Section 1373.2(A) is intended, and is necessary, to declare the Postconviction DNA Act retroactive and applicable to previously final criminal cases; in other words a post-conviction motion requesting DNA testing may be filed and heard regardless of the person's previous challenges to his or her conviction or sentence taken prior to the effective date of Postconviction DNA Act. 22 O.S.2011, § 3 ("No part of this code is retroactive unless expressly so declared"). In addition, we cannot find that the Legislature intended for persons otherwise eligible under the Postconviction DNA Act to be able to file successive motions for DNA testing without regard to the disposition of previously filed motions under the Act. Finally, a person procedurally barred from filing second and subsequent motions for DNA testing is not completely precluded from obtaining DNA testing. DNA testing is allowed under the Postconviction DNA Act, without the requirement of filing a motion, when both the State and the convicted person agree that post-conviction testing should be conducted. 22 O.S.Supp.2013, § 1373.6(A). Therefore, we find a procedural bar like the one found in Section 1086 of the Uniform Post-Conviction Act may be utilized by the courts on any second or subsequent application for post-conviction relief requesting DNA testing under the Postconviction DNA Act.
¶6 As the District Court correctly noted in this case, Petitioner asserted and could have adequately raised his request for DNA testing in his first post-conviction motion requesting DNA testing. Petitioner has not provided any reason, and clearly not a sufficient reason, for not adequately raising the request for DNA testing in his first motion. See 22 O.S.2011, § 1086. Thus, that ground for relief may not be the basis for this subsequent motion. Id. Moreover, Petitioner never applied for an appeal out of time from the denial of his first post-conviction motion requesting DNA testing, and has not met his burden of establishing that he was denied an appeal in his first post-conviction proceeding through no fault of his own. Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015); see Blades v. State, 2005 OK CR 1, 107 P.3d 607; see also Smith v. State, 1980 OK CR 43, 611 P.2d 276. Therefore, the order of the District Court of Comanche County denying Petitioner's second post-conviction motion requesting DNA testing in Case No. CF-2000-428 should be, and is hereby, AFFIRMED.
¶7 Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court.
¶8 IT IS SO ORDERED.
¶9 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 17th day of February, 2015.
/S/CLANCY SMITH, Presiding Judge
/S/GARY L. LUMPKIN, Vice Presiding Judge
/S/ARLENE JOHNSON, Judge
/S/DAVID B. LEWIS, Judge
ATTEST:
Michael S. Richie
Clerk
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Court of Criminal Appeals Cases
CiteNameLevel
2005 OK CR 1, 107 P.3d 607, BLADES v. STATEDiscussed
2014 OK CR 16, 337 P.3d 763, STATE ex rel. SMITH v. NEUWIRTHDiscussed
1980 OK CR 43, 611 P.2d 276, SMITH v. STATEDiscussed
Title 22. Criminal Procedure
CiteNameLevel
22 O.S. 1373, Short TitleCited
22 O.S. 1373.2, Eligibility and Procedures for Postconviction DNA TestingDiscussed at Length
22 O.S. 1373.6, When State and Convicted Person Agree to Postconviction DNA TestingCited
22 O.S. 1373.7, AppealsCited
22 O.S. 3, Code Not Retroactive Unless Expressly DeclaredCited
22 O.S. 1086, Subsequent ApplicationDiscussed at Length
22 O.S. 1087, Appeal to Court of Criminal AppealsCited
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People v Epps (2014 NY Slip Op 06329)
People v Epps
2014 NY Slip Op 06329
Decided on September 24, 2014
Appellate Division, Second 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 September 24, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial DepartmentREINALDO E. RIVERA, J.P.
RUTH C. BALKIN
THOMAS A. DICKERSON
SANDRA L. SGROI, JJ.
2000-10564
(Ind. No. 2533/00)
[*1]The People of the State of New York, respondent,
vDarnell Epps, appellant.
Darnell Epps, Romulus, N.Y., appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for respondent.
Lynn W. L. Fahey, New York, N.Y., former appellate counsel.
DECISION & ORDER
Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 27, 2003 (People v Epps, 305 AD2d 697), affirming a judgment of the Supreme Court, Kings County, rendered November 15, 2000.
ORDERED that the application is denied.
The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).
RIVERA, J.P., BALKIN, DICKERSON and SGROI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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417 F.3d 284
UNITED STATES of America, Appellee,v.Dennis WELLINGTON, Defendant-Appellant.
Docket No. 04-3198-CR.
United States Court of Appeals, Second Circuit.
Argued: May 20, 2005.
Decided: August 3, 2005.
Earle Giovanniello, Moscowitz & Giovanniello, New Haven, CT, for Defendant-Appellant.
Michael A. Levy, Assistant United States Attorney (Adam B. Siegel, Assistant United States Attorney, of counsel, David N. Kelley, United States Attorney for the Southern District of New York, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.
Before: OAKES and CABRANES, Circuit Judges, and GOLDBERG, Judge.*
JOSÉ A. CABRANES, Circuit Judge.
1
Defendant Dennis Wellington appeals from a judgment of the United States District Court for the Southern District of New York (John E. Sprizzo, Judge) entered after a bench trial on stipulated facts. The District Court found defendant guilty of illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2), and sentenced defendant principally to a 63-month term of imprisonment. Because the record demonstrates that defendant knowingly, intelligently, and voluntarily opted to proceed to trial on stipulated facts, we reject defendant's contention that he was denied his Sixth Amendment right to a trial when the District Court found defendant guilty on the basis of his stipulation to the elements of the charged offense. We further hold that the District Court was not required to comply with the strictures of Federal Rule of Criminal Procedure 11 before accepting defendant's stipulation. Because we also reject defendant's claim that his counsel was ineffective, we affirm the District Court's finding of guilt. Finally, we remand the cause to the District Court for reconsideration of defendant's sentence in accordance with United States v. Crosby, 397 F.3d 103 (2d Cir.2005).
BACKGROUND
2
On June 27, 2002, defendant, a native and citizen of Guyana, was charged with illegally reentering the United States after having been deported subsequent to a conviction for the commission of an aggravated felony,1 in violation of 8 U.S.C. § 1326(a) and (b)(2).
3
Defendant filed several motions to dismiss the indictment, all of which were denied by the District Court. At a pretrial conference on November 5, 2003, defendant's trial counsel, Jonathan P. Bach, informed the District Court in defendant's presence that defendant intended to "have a [non-jury] trial on stipulated facts." Bach further represented that defendant did not intend to testify, submit evidence, or provide an affirmative defense at trial. Bach stated that defendant wished to proceed this way in order "to preserve certain issues on appeal," including a speedy trial issue, without foreclosing the possibility of a sentence reduction for acceptance of responsibility.
4
On November 13, 2003, the District Court informed defendant of his rights, and defendant, consistent with a written allocution he had signed on November 6, 2003,2 orally waived his right to a jury trial. The government consented to the waiver pursuant to Federal Rule of Criminal Procedure 23(a).3 The District Court then conducted a bench trial at which the only evidence presented was defendant's stipulation to each element of the offense. Based on these undisputed facts, the Court found defendant guilty of the charged offense.
5
Thereafter, the United States Probation Office ("USPO") issued a Pre-Sentence Report ("PSR"), recommending, inter alia, that defendant not receive a sentencing offense-level reduction for acceptance of responsibility. On or about February 11, 2004, Bach objected to the USPO's recommendations and, specifically, to its failure to apply an acceptance of responsibility reduction to defendant's offense level.
6
On March 23, 2004, the District Court convened a conference in open court to discuss sentencing. With defendant present, Bach stated that he had "spoken with [defendant] and he has instructed me not to" seek a downward departure or object to the USPO's failure to recommend an offense level reduction for acceptance of responsibility.
7
When asked by the District Court why defendant had chosen to waive these arguments, Bach stated that defendant had given him "a reason" and that although he, Bach, did not "agree" with it, these were defendant's instructions. The Court confirmed with defendant that Bach was acting in accordance with defendant's wishes and that defendant understood that he would be waiving the issues "for all purposes and all time." Defendant responded, "Yes, your Honor." Exactly one week later, on May 20, 2004, the Court sentenced defendant principally to a 63-month term of imprisonment, a sentence falling at the lowest end of the range prescribed by the U.S. Sentencing Guidelines as a result of the uncontested calculations in the PSR.
DISCUSSION
8
Defendant raises four issues on appeal. He argues (1) that he was denied effective assistance of counsel; (2) that he was improperly denied his Sixth Amendment right to a trial;4 (3) that the District Court erred in not applying an offense-level reduction for defendant's acceptance of responsibility; and (4) that the District Court improperly failed to comply with the requirements of Federal Rule of Criminal Procedure 11 ("Rule 11") when it accepted defendant's stipulation to the facts establishing the charged offense. We address each of these issues in turn.
1. Ineffective Assistance of Counsel
9
In order to make out an "actual ineffectiveness claim," a defendant must demonstrate, first, that his attorney's conduct fell "outside the wide range of professionally competent assistance," and, second, "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Henry v. Poole, 409 F.3d 48, 58 (2d Cir.2005) ("The Federal test for evaluating ineffective assistance of counsel claims is set forth in Strickland ...."). Prejudice will be presumed in those instances where counsel is actually or constructively denied or where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
10
The Supreme Court has recently stated that "in most cases a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective-assistance," Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), and we have often noted our own "baseline aversion to resolving ineffectiveness claims on direct review." United States v. Salameh, 152 F.3d 88, 161 (2d Cir.1998). That said, in view of the patent lack of merit of defendant's ineffective assistance claim here, we exercise our discretion to "decide the claim on the record before us." United States v. Morris, 350 F.3d 32, 39 (2d Cir.2003) (quoting United States v. Leone, 215 F.3d 253, 256 (2d Cir.2000)).
11
In the instant case, defense counsel's stipulation on defendant's behalf, made in defendant's presence, to every element of the only charged offense—entered with a view to receiving a reduction in the computed offense level for acceptance of responsibility—coupled with his waiver of the right to claim such an adjustment after the USPO declined to recommend one, was an ill-advised and wholly ineffective trial strategy. There is, moreover, no doubt that the stipulation directly contributed to the resulting judgment of conviction. But defendant's counsel did not devise this strategy himself. He entered the stipulation and waived defendant's right to seek an offense-level adjustment because defendant instructed him to do so. Bach informed the Court that he did not necessarily agree with his client, but that defendant "has given a lot of thought to this and I advised him, [and] he's the boss."
12
Although defendant, represented by new counsel in this appeal, does not dispute at this juncture that his trial counsel was following his (defendant's) own instructions, he urges that he is nonetheless a victim of ineffective assistance because Bach "fail[ed] to subject the prosecution's case to meaningful adversarial testing." Cronic, 466 U.S. at 659. In so arguing, defendant suggests that a criminal defendant is entitled to vacatur of his conviction if, as a result of counsel following defendant's unequivocal instructions, counsel pursues a course of action that, in the absence of such instructions, may have constituted professional error.
13
Strickland, however, admits no such exception. The Strickland Court emphasized that, in evaluating the merits of an ineffectiveness claims, an attorney's conduct should not be viewed in a vacuum, but in the context of the entire proceeding. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 ("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."); see also Johnston v. Singletary, 162 F.3d 630, 642 (11th Cir.1998) (recognizing that "the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions") (internal quotation marks and citation omitted). Thus, a defense counsel who "entirely fails" to put on a defense for his client, Cronic, 466 U.S. at 659, 104 S.Ct. 2039 (emphasis added), has not provided service that ranks "outside the wide range of professionally competent assistance," Strickland, 466 U.S. at 690, 104 S.Ct. 2052, where, as here, (1) the defendant expressly instructed his counsel not to put forth a defense; (2) counsel advised the defendant of the probable consequences of not raising a defense, but the defendant opted to waive the right anyway; and (3) the defendant was competent to make that decision, see Wallace v. Davis, 362 F.3d 914, 920 (7th Cir.2004) ("A good lawyer tries to persuade the accused to make a wise decision ... about presenting a defense, even though the ultimate decision rests with the client...."); see also Alvord v. Wainwright, 725 F.2d 1282, 1289 (11th Cir.1984) ("[G]iven [the defendant's] competency, [his counsel] was ethically bound to follow his wishes.").
14
It is the "role of the lawyer [to be] a professional advisor and advocate," Lefcourt v. United States, 125 F.3d 79, 86 (2d Cir.1997) (quoting In re Shargel, 742 F.2d 61, 62-63 (2d Cir.1984)), not to usurp his "`client's decisions concerning the objectives of representation,'" see Jones v. Barnes, 463 U.S. 745, 753 n. 6, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (recognizing that, where ethically and legally possible, "`[a] lawyer shall abide by a client's decisions concerning the objectives of representation'") (quoting ABA Model Rules of Prof'l Conduct R. 1.2(a)); Wallace, 362 F.3d at 920 ("By respecting [his client's] wishes, counsel not only abided by ethical requirements (lawyers are agents, after all) but also furnished the quality of assistance that the Constitution demands.") (emphasis in original); see also Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.").
15
Accordingly, to the extent that defendant instructed his counsel to pursue a course of action that defendant now complains of, there was no abridgement—constructive or otherwise—of defendant's Sixth Amendment right to effective assistance of counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ("[A] defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently.") (internal citations omitted, emphasis in the original); see also Coleman v. Mitchell, 268 F.3d 417, 448 n. 16 (6th Cir.2001) ("[C]ounsel was not ineffective for following the defendant's clear and informed instruction."); Frye v. Lee, 235 F.3d 897, 906-07 (4th Cir.2000) (observing that if the Court were to hold that defense counsel "rendered ineffective assistance [by acceding to the defendant's instructions not to present] ... mitigation evidence, [the Court] would be forcing defense lawyers in future cases to choose between Scylla and Charybdis"); Autry v. McKaskle, 727 F.2d 358, 360-61 (5th Cir. 1984) (rejecting claim of ineffective assistance of counsel for failure to investigate and present evidence at sentencing phase where defendant had instructed his attorney not to fight the death penalty); cf. Brookhart v. Janis, 384 U.S. 1, 4-9, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (reversing judgment of conviction where defense counsel, over the defendant's in-court objections that he did not wish to plead guilty, waived the defendant's right to present a defense and cross-examine witnesses).
2. Waiver
16
Although defendant chose to stipulate to the elements of the charged offense, he now complains about the absence of (1) opening statements, (2) witnesses, (3) evidence, and (4) closing statements at his trial. Defendant did not raise any such objections in the District Court. Moreover, his counsel represented at the November 5, 2003 pre-trial conference that defendant intended to "stipulate to all of the elements of the offense" and further intended not to "testify, [present] evidence, [or offer any] affirmative defense" for tactical reasons. Defendant's deliberate choice to forego each of these rights constitutes waiver of these issues. See United States v. Yu-Leung, 51 F.3d 1116, 1121-22 (2d Cir.1995) ("If . . . the party consciously refrains from objecting as a tactical matter, then that action constitutes a true `waiver,' which will negate even plain error review.").
17
Defendant's contention that he was improperly denied a sentence reduction for acceptance of responsibility is similarly without merit. Defendant expressly waived his right to object to the calculation of his offense level and confirmed to the District Court that he understood that he was waiving his right to object to this issue "for all purposes and all time." Accordingly, we cannot now consider any of these arguments on appeal. See United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (recognizing that waiver, the "intentional relinquishment or abandonment of a known right," is not appealable) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); see also United States v. Thorn, 317 F.3d 107, 129 n. 16 (2d Cir.2003) (distinguishing waiver of a right from forfeiture of a right, and noting that, whereas forfeiture "results from the failure to assert [a] claim in a timely fashion... [and is reviewed] for plain error," "`waiver,' which is the `intentional relinquishment or abandonment of a known right' ... permanently extinguishes the right to raise the claim") (quoting Olano, 507 U.S. at 733, 113 S.Ct. 1770). In any case, because defendant cannot complain of an error which he himself invited, he is not entitled to relief. See United States v. Jones, 763 F.2d 518, 523-24 (2d Cir.1985).
3. "Rule 11" Procedures
18
With respect to defendant's claim that the District Court erred by not fulfilling the requirements of Rule 11 of the Federal Rules of Criminal Procedure, it bears underscoring that we have never held that Rule 11 procedures are required in circumstances other than when a defendant enters a plea of guilty or nolo contendere. See Fed.R.Crim.P. 11(b) (identifying a procedure by which a District Court, before accepting a plea of guilty or nolo contendere, must inform a defendant and confirm his understanding of certain rights that he waives by pleading guilty). Because the text of Rule 11 plainly states that it applies to situations where a court "accepts a plea of guilty or nolo contendere," we join our sister circuits in recognizing that the full panoply of Rule 11 procedures are not necessary where a defendant stipulates to facts establishing guilt. See United States v. Lyons, 898 F.2d 210, 215 (1st Cir.1990) ("We ... decline to extend Rule 11 to cover trial by stipulation."); United States v. Schmidt, 760 F.2d 828, 834-35 (7th Cir.1985) (rejecting the defendant's contention that Rule 11 procedures were required where the defendant argued that his counsel's stipulations amounted to the "functional equivalent[ ] of [a] guilty plea[ ]"); United States v. Robertson, 698 F.2d 703, 708 (5th Cir.1983) ("By its express terms, Rule 11 applies only to guilty or nolo contendre pleas."); Witherspoon v. United States, 633 F.2d 1247, 1252 (6th Cir.1980) (finding no reversible error where the district court failed to provide Rule 11 procedures and defense counsel stipulated to most of the elements of the offense but "suggest[ing]" that district courts "consider the possible applicability of the terms of Rule 11 in any instance where a stipulation as to most or all of the factual elements necessary to proof of guilt of a crime is tendered"); United States v. Miller, 588 F.2d 1256, 1263 (9th Cir.1979) ("[T]his circuit already has ruled that the requirements of Rule 11 are applicable only to guilty pleas (or pleas of nolo contendere) and not to stipulations.") (internal citations and quotation marks omitted); United States v. Lawriw, 568 F.2d 98, 105 n. 13 (8th Cir.1977) ("An inquiry as thorough as that prescribed by Fed.R.Crim.P. 11 is not required before the district court accepts a stipulation of facts establishing guilt from a criminal defendant."); cf. United States v. Lawson, 682 F.2d 1012, 1015 (D.C.Cir.1982) (stating, in dicta, that "Rule 11 inquiries may also be required if, by stipulation or otherwise, a defendant has effectively admitted his guilt and waived trial on all issues").
19
We caution, however, that where a court accepts a defendant's stipulation to the elements of the charged offense, the district judge must ensure (1) that the stipulation is voluntarily made and (2) that the defendant understands the consequences of his stipulation. Cf. United States v. Curcio, 680 F.2d 881, 889 (2d Cir.1982) ("As in Rule 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest.") (quoting United States v. Garcia, 517 F.2d 272, 277-78 (5th Cir.1975)).
20
In the instant case, the District Court did not directly address defendant at the pre-trial conference on November 5, 2003 when defense counsel informed the District Court of defendant's intention to stipulate to the facts establishing the offense. Nor did the District Court directly address defendant at the time the stipulation was read into the record at the agreed-upon truncated bench trial of November 13, 2003. Nonetheless, the record indicates that defendant's stipulation was knowingly and voluntarily made. Defendant signed the stipulation on November 11, 2003, thereby confirming that he "agreed to" stipulate to the facts establishing the charged offense. In addition, Bach represented, in defendant's presence, that the stipulation was defendant's own proposal and that he (counsel) had explained the consequences of the stipulations to his client. Bach stated, "Mr. Wellington, as the court knows, has given a lot of thought to this and I advised him, but he's the boss." Defendant, who had addressed the court in prior colloquies, was expressly given an opportunity by the District Court to speak shortly after the stipulation was entered and said nothing to the contrary. Furthermore, in oral argument before this Court on May 20, 2005, defendant's appellate counsel confirmed that defendant's trial counsel (Bach) had properly represented defendant's intentions to the District Court and that Bach had acted in accordance with defendant's wishes.
21
It is therefore undisputed that defendant's decision to proceed to a bench trial on stipulated facts was intentional, knowing,5 and voluntary. In these circumstances, vacatur of defendant's stipulation and the District Court's resulting judgment of conviction is not warranted.
4. Crosby Remand
22
Finally, defendant argues, and the government concurs, that, because the District Court sentenced him prior to learning that the Sentencing Guidelines were advisory and non-binding, he is entitled to a Crosby remand. See United States v. Crosby, 397 F.3d 103 (2d Cir.2005). Because we find this disposition appropriate, we remand the cause to the District Court so that it may consider whether to resentence defendant in conformity with the currently applicable statutory requirements. See United States v. Watson, 404 F.3d 163, 167 (2d Cir.2005).
CONCLUSION
23
For the reasons stated above, the finding of guilt entered by the District Court is affirmed, and the cause is remanded for reconsideration of defendant's sentence in accordance with United States v. Crosby, 397 F.3d 103 (2d Cir.2005).
Notes:
*
The Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation
1
Prior to his 1993 deportation to Guyana, defendant was convicted of criminal sale of a controlled substance in the third degree
2
The allocution provided, in relevant part, that:
[t]he defendant, DENNIS WELLINGTON, having been fully advised by defense counsel, Jonathan P. Bach, Esq., of (i) his right to plead guilty[;] (ii) the applicability and function of the United States Sentencing Guidelines in this case; and ... [h]aving been advised by counsel and the Court of his constitutional right to a trial by jury; and . . . [h]aving fully discussed all of these matters with counsel, ... [h]ereby voluntarily waives his right to a trial by jury and consents to have this matter determined by the Honorable John E. Sprizzo.
J.A. at 159-60.
3
Federal Rule of Criminal Procedure 23(a) provides that "[i]f the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves."
4
Defendant does not appear to argue that he was improperly denied his right to ajury trial, but rather that the "[s]o-called [t]rial was no [t]rial at all .... The parties and the district court ... participated in what they called a trial, but no fact was tried and no argument was made." Def.'s Br. at 10.
5
Defendant urges on appeal that his decision to enter a stipulation was not knowingly made because it preceded the Supreme Court's ruling inUnited States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Def.'s Letter Br. at 2-3. We find this argument to be without merit. "[I]gnorance of future rights" does not render a decision not knowingly made particularly where, at the time the defendant made the decision in question, he was fully cognizant of his "then-existing rights." See United States v. Haynes, 412 F.3d 37 (2d Cir.2005) (rejecting the defendant's contention that his guilty plea was not knowingly entered because it preceded Booker and holding that "[w]hile ignorance of then-existing rights can invalidate a plea agreement in some cases, ignorance of future rights is unavoidable and not a basis for avoiding a plea agreement").
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Filed 9/14/16 Pfuhl v. Mercury Casualty Co. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
CARIN PFUHL et al.,
Plaintiffs and Appellants, E063064
v. (Super.Ct.No. RIC1301375)
MERCURY CASUALTY COMPANY, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
J R Tyler Law and J. Russell Tyler, Jr., for Plaintiffs and Appellants.
Hager & Dowling, John V. Hager and Christine W. Chambers, for Defendant and
Respondent.
Plaintiffs and appellants Carin Pfuhl and Charles Pfuhl II own a house in
Riverside insured by defendant and respondent Mercury Casualty Company (Mercury);
their adult children, plaintiffs and appellants Charles Pfuhl III, Clair Pfuhl, and Cathrin
Pfuhl, reside with them in the house. Plaintiffs claimed the house was damaged by a
1
flood caused by a “failure in the plumbing system” that occurred on November 18, 2009.
Mercury has paid plaintiffs a total of $81,004.10 on the claim. Plaintiffs contend, among
other things, that this sum was neither timely paid nor sufficient.
The operative first amended complaint asserts five causes of action against
Mercury, for breach of contract, breach of the implied covenant of good faith and fair
dealing, intentional interference with contractual relations, intentional infliction of
emotional distress, and negligence. The trial court granted summary judgment in favor of
Mercury on statute of limitations grounds, and awarded Mercury costs in the amount of
$54,549.
In this appeal, plaintiffs argue that their suit was timely filed. They also challenge
in part the trial court’s award of costs, focusing in particular on the discretionary award of
$34,232 in expert witness fees. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are homeowners, whose property was insured by Mercury under a
homeowner’s insurance policy. The policy contains the following one-year limitations
provision: “Suit Against Us. No action shall be brought unless there has been
compliance with the policy provisions and the action is started within one year after the
loss or damage.” (Original boldface.)
2
It is undisputed, at least for purposes of this appeal, that plaintiffs sought coverage
under the policy for damage that occurred on November 18, 2009.1 According to
plaintiffs, on that date the first floor of their house was flooded with sewage, which
backed up out of several toilets and a bath tub.
The parties dispute, however, when plaintiffs sought coverage for that damage.
Mercury contends that plaintiffs first reported the flood to it on July 26, 2010, and that it
opened a claim immediately. Plaintiffs contend that they (specifically, Carin Pfuhl) first
reported the flood on the day that it occurred, November 18, 2009, to the broker who had
procured the homeowner’s insurance policy for them, defendant Cheryl Joseph, a
principal of defendant Raphael John Joseph Insurance Services, Inc. (the Joseph
Agency).2 Additionally, plaintiffs assert that Carin Pfuhl contacted Mercury directly by
means of a letter, dated December 10, 2009. That letter makes reference to a telephone
conversation between Carin Pfuhl and a Mercury representative “last week,” and Carin
Pfuhl states in her declaration submitted in opposition to Mercury’s motion that she
personally telephoned Mercury in “late November 2009.”
In a letter dated July 27, 2010, Mercury informed plaintiffs of certain terms of
their policy, including the one-year limitation period quoted above. The letter further
1 The date of loss listed in many of Mercury’s documents regarding the claim is
November 22, 2009, a date apparently reported by plaintiffs in July 2010 based on a
receipt from a plumber that had that date. Plaintiffs later contended that report to be in
error, and that the actual date of loss was November 18, 2009, the date alleged in the
complaint.
2Cheryl Joseph and Raphael John Joseph Insurance Services were named as
defendants in the present lawsuit, but are not party to this appeal.
3
explained that the limitations period “begins the date the claim is closed,” except that “if
there is a lapse of time between the date the loss occurred and the date you reported it to
Mercury, those days will be subtracted from your one-year period.”
After an investigation, in April 2011, Mercury paid plaintiffs a total of $43,086.10
on their claim, and by means of a letter on April 14, 2011, informed plaintiffs that the
claim was closed as of that date. The letter again recited the policy language regarding
the one-year limitation on actions against Mercury, and used the same language as the
July 27, 2010, letter to describe how the duration of the limitations period is calculated.
In June 2011, in response to an email from plaintiffs contesting the adequacy of
the amount paid on the claim, Mercury paid plaintiffs an additional $9,280, while
emphasizing that the claim remained closed.
In February 2012, plaintiffs, through a letter to Mercury by their counsel,
expressed their view that Mercury had acted inappropriately in a number of ways, and
demanded among other things, $7.5 million as a “starting figure.” In a letter dated
February 28, 2012, Mercury agreed “to re-open this claim and to re-evaluate our position
in an effort to determine whether any additional amounts are due under the policy.” It
did so “under a reservation of rights” based on the reasons expressed in its
correspondence with plaintiffs, and reserving the right “to assert any other policy
provisions or defenses that might become apparent at any later time.”
On December 24, 2012, Mercury sent plaintiffs’ current counsel (plaintiffs had
changed counsel in September 2012) a letter describing the findings of its further review
and investigation, and reclosing the claim. Mercury agreed to pay plaintiffs an additional
4
$28,638, bringing its total payments to plaintiffs to $81,004.10. This letter again quoted
the policy language providing for a one-year limitations period on any action against
Mercury, but did not include any additional explanation of how the limitation period was
calculated.
Plaintiffs filed suit on February 4, 2013, and amended their complaint on May 10,
2013. Mercury’s motion for summary judgment was filed August 1, 2014. After several
hearings, and various supplemental submissions by both parties, on October 21, 2014, the
trial court granted summary judgment in favor of Mercury, finding that “the statute of
limitations has run.” Judgment was entered on November 13, 2014.
Mercury had previously made offers of compromise pursuant to Code of Civil
Procedure section 998,3 which plaintiffs did not accept.4 On December 4, 2014, Mercury
filed a memorandum of costs, seeking $57,593. After hearing a motion to tax costs by
plaintiffs, the trial court awarded Mercury $54,549 in costs, including $34,232 in expert
fees.5
3 Further undesignated statutory references are to the Code of Civil Procedure.
4Mercury offered to pay Carin Pfuhl $100,000, and $1,500 each to Charles Pfuhl
III, Cathrin Pfuhl, and Clair Pfuhl. No offer to compromise specifically addressed to
Charles Pfuhl II appears in our record, but no party has argued that this circumstance is
material to any issue in this appeal.
Additional facts will be discussed below as necessary to address plaintiffs’
5
claims of error.
5
II. DISCUSSION
A. Summary Judgment Was Properly Granted on Statute of Limitations Grounds.
Plaintiffs contend that the trial court erred in determining their lawsuit to be barred
by the applicable one-year limitations period, arguing that the limitations period was
tolled (1) from November 18, 2009, when they reported the loss to their broker, to
April 14, 2011, when Mercury formally closed the claim, and (2) from February 28,
2012, when Mercury reopened the claim, to December 24, 2012, when Mercury again
closed the claim. Plaintiffs further argue that Mercury is estopped from asserting the
limitations period because it did not adequately explain the deadline for bringing suit in
its December 24, 2012, letter, and it failed to deliver a copy of the policy to plaintiffs.
We find that summary judgment was properly granted because plaintiffs filed suit after
the limitations period had expired, and Mercury should not be equitably estopped from
asserting the limitations period as a defense.
1. Standard of Review.
Under section 437c, subdivision (c), a motion for summary judgment shall be
granted if all the papers submitted show there is no triable issue as to any material fact
and the moving party is entitled to judgment as a matter of law. A defendant meets its
burden on summary judgment by showing that the plaintiff cannot prove its causes of
action, or by establishing a complete defense to the plaintiff’s causes of action. (§ 437c,
subd. (p)(2).) The burden then shifts to the plaintiff to show a triable issue of fact
material to the causes of action or defense. (Ibid.)
6
We evaluate a summary judgment ruling de novo, independently reviewing the
record to determine whether there are any triable issues of material fact. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767.) “In practical effect, we assume the
role of a trial court and apply the same rules and standards that govern a trial court’s
determination of a motion for summary judgment.” (Distefno v. Forester (2001) 85
Cal.App.4th 1249, 1258.) In general, we give no deference to the trial court’s ruling or
reasoning, and only decide whether the right result was reached. (Carnes v. Superior
Court (2005) 126 Cal.App.4th 688, 694.)
2. The Limitations Period Was Not Tolled By Plaintiffs’ Report of the Loss to
Their Broker on November 18, 2009.
The parties agree that the limitations period applicable to plaintiffs’ claims was
equitably tolled from July 26, 2010, to April 14, 2011, while Mercury investigated the
claim. (See Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674,
678 (Prudential-LMI) [limitations period “equitably tolled from the time the insured files
a timely notice, pursuant to policy notice provisions, to the time the insurer formally
denies the claim in writing”].) Plaintiffs contend, however, that they first gave Mercury
notice of the loss not on July 26, 2010, but on November 18, 2009, when they reported
the claim to the broker, Cheryl Joseph, who had procured the homeowner’s insurance
policy for them. On the undisputed facts in the record, however, notice of the loss to the
broker did not constitute notice to Mercury.
“Equitable tolling is a judge-made doctrine ‘which operates independently of the
literal wording of the Code of Civil Procedure’ to suspend or extend a statute of
7
limitations as necessary to ensure fundamental practicality and fairness. [Citations.]
[The California Supreme Court] has applied equitable tolling in carefully considered
situations to prevent the unjust technical forfeiture of causes of action, where the
defendant would suffer no prejudice. . . . [¶] [T]he effect of equitable tolling is that the
limitations period stops running during the tolling event, and begins to run again only
when the tolling event has concluded.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363,
370.)
An insurance broker is defined as one who, “for compensation and on behalf of
another person, transacts insurance other than life, disability, or health with, but not on
behalf of, an insurer. (Ins. Code, § 33.) The insurance broker is ordinarily the agent of
the insured and not of the insurer. (Fraser-Yamor Agency, Inc. v. County of Del Norte
(1977) 68 Cal.App.3d 201, 213, superseded by statute on other grounds as stated in
People v. Honig (1996) 48 Cal.App.4th 289, 318.) More specifically, in securing a policy
for its client a broker “acts only as agent for the [in]sured . . . .” (Maloney v. Rhode
Island Ins. Co. (1953) 115 Cal.App.2d 238, 244.) However, the facts of a case may show
the broker was acting in a “dual capacity,” as agent for both insured and insurer, in
specific respects. (Mark Tanner Construction, Inc. v. HUB Internat. Ins. Services, Inc.
(2014) 224 Cal.App.4th 574, 584.)
The undisputed facts demonstrate that Cheryl Joseph and the Joseph Agency were
not acting as agents for Mercury with respect to taking reports of losses, at least on
November 18, 2009. Indeed, Carin Pfuhl’s own declaration, submitted in opposition to
Mercury’s motion for summary judgment, forecloses any argument regarding even
8
ostensible agency, stating that Ms. Joseph “refuse[d] to send our claim to Mercury,” and
“never told us that she was making any decision on behalf of Mercury, or communicating
any decision to us on behalf of Mercury.” For her part, Ms. Joseph declared that she did
not remember speaking to Carin Pfuhl with respect to her loss, but that her general
practice was to provide Mercury’s phone number and the policy number to the insured,
and to instruct the insured to call Mercury directly to make a claim.6
Furthermore, despite plaintiffs’ assertions to the contrary, there is no evidence in
the record that Ms. Joseph or the Joseph Agency were in fact designated to act as agents
of Mercury for purposes of receiving loss reports. The name and address of the Joseph
Agency appears in plaintiffs’ policy—indeed its name and address are the only ones that
appears there—but it is identified as the “producer” of the policy, not as a Mercury
representative to whom losses should be reported. (See Carlton v. St. Paul Mercury Ins.
Co. (1994) 30 Cal.App.4th 1450, 1457 (Carlton) [broker identified as “‘producing
agent’” and the “‘Agency’” for the policy on application form was not an agent for
insurer].)
Plaintiffs also submitted evidence of a Mercury website, which they characterize
as stating that the Joseph agency is a “Mercury Agent” and containing “testimonials that
Mercury Agents help its insureds make claims.” Plaintiffs ignore that the “testimonial”
appears under a heading “Mercury Television Commercials,” and is a description of an
6 Plaintiffs have disputed this characterization of the general practice between
Mercury and the Joseph Agency, but it is not a dispute that raises a triable issue of
material fact under the circumstances of this case.
9
advertisement for the services Mercury provides to its policy holders, not services
provided by the Joseph Agency. Although a header on the website uses the phrase
“Authorized Agent,” the text of the site identifies the Joseph Agency more specifically as
an “authorized, independent Mercury Insurance Agency,” and the services that the Joseph
Agency is described as providing in that role all relate to procuring insurance; making
sure that the insured gets “every discount possible,” working “to create a protection plan
tailored to your needs,” and the like. Nothing on the website raises a triable issue of
material fact regarding whether Ms. Joseph or the Joseph Agency should be treated as
agents of Mercury, rather than an agent of the insured for purposes of procuring
insurance.
Plaintiffs cite also to a letter from Mercury that specifically directed them to report
any new losses to the Joseph Agency. In their briefing, however, plaintiffs fail to address
the circumstance that the letter is dated August 22, 2011—after their claim was initially
closed. The letter establishes that the Joseph Agency was designated to serve as
Mercury’s agent for receiving notice of any new losses after that date. But plaintiffs are
able to point to nothing establishing the Joseph Agency to be Mercury’s agent for the
purpose of receiving reports of new losses as of November 2009.
In short, on the undisputed facts in the record, Ms. Joseph and the Joseph Agency
were not Mercury’s agent, so notice to Ms. Joseph or the Joseph Agency did not
constitute notice to Mercury of plaintiffs’ loss. (Carlton, supra, 30 Cal.App.4th at p.
1457.) Plaintiffs’ arguments in briefing and in oral argument, that Carin Pfuhl
reasonably, even if mistakenly, understood that her claim was properly and successfully
10
made by reporting the loss to the Joseph Agency, are foreclosed by her own declaration
testifying that Ms. Joseph explicitly refused to send her claim to Mercury. The statute of
limitations therefore was not tolled, but on the contrary began to run on November 18,
2009.
3. Plaintiffs Produced Some Evidence Supporting Tolling of Limitations Period
from November 30, 2009, to April 14, 2011.
The parties are in agreement that the limitations period was equitably tolled from
the date Mercury was notified of plaintiffs’ loss until April 14, 2011, when Mercury
wrote to plaintiffs closing their claim. The date that begins this period, however, is
disputed.
Mercury asserts that its first knowledge of plaintiffs’ loss came from a phone call
by plaintiffs on July 26, 2010. As noted, however, plaintiffs produced some evidence
that they reported the flood directly to Mercury substantially sooner. According to
plaintiffs, Carin Pfuhl contacted Mercury directly by means of a letter, dated
December 10, 2009. And that letter makes reference to a telephone conversation between
Carin Pfuhl and a Mercury representative “last week.” The Monday of the week before
Thursday, December 10, 2009, was November 30, 2009, and Carin Pfuhl states in her
declaration submitted in opposition to Mercury’s motion that she personally telephoned
Mercury in “late November 2009.” Plaintiffs therefore presented at least some evidence,
albeit not indisputable evidence, that they reported their loss to Mercury on
November 30, 2009.
11
In light of plaintiffs’ evidence, the undisputed facts regarding when plaintiffs gave
Mercury notice of their loss establish only that the limitations period ran from
November 18, 2009, to November 30, 2009, a period of 12 days.
4. The Limitations Period Was Tolled When Mercury Reopened the Claim.
The parties agree that the clock was running on the limitations period from
April 14, 2011, when Mercury wrote to plaintiffs closing their claim, to February 28,
2012, when Mercury agreed to reopen the claim—by our calculations a period of 320
days.7 The parties do not agree with respect to whether the limitations period was tolled
from February 28, 2012, until Mercury again closed the claim on December 24, 2012.
Mercury contends that the limitations period was not tolled during that period. Plaintiffs
disagree, as do we.
Mercury is incorrect that “[t]here is no reason to apply a second period of
equitable tolling.” The same policy reasons that led the Supreme Court to endorse
equitable tolling of limitations periods in insurance contracts apply equally well to
periods when a claim has been reopened as they do to initial processing of claims. “First,
it allows the claims process to function effectively, instead of requiring the insured to file
suit before the claim has been investigated and determined by the insurer. Next, it
protects the reasonable expectations of the insured by requiring the insurer to investigate
the claim without later invoking a technical rule that often results in an unfair forfeiture
7 Plaintiffs have calculated this period to be 319 days, while Mercury counts 323.
The differences between the three calculations are not, however, material to the
disposition of this appeal, so we do not attempt to reconcile them.
12
of policy benefits. . . . Third, a doctrine of equitable tolling will further our policy of
encouraging settlement between insurers and insureds . . . .” (Prudential-LMI, supra, 51
Cal.3d at p. 692.) Mercury was under no obligation to formally reopen plaintiffs’ claim,
but by expressly doing so, it acknowledged to plaintiffs that further investigation of the
claim would be conducted, and its prior determination of the claim would be
reconsidered. For the reasons articulated in Prudential-LMI, equity dictates that plaintiffs
should not be required to file suit before that continuing claims process had been
completed, regardless of whether Mercury had previously closed the claim.
Ashou v. Liberty Mutual Fire Ins. Co. (2006) 138 Cal.App.4th 748, is instructive.
In that case, the insurer expressly agreed to “reopen” the claim, when the insured
requested reconsideration. (Id. at p. 754.) The claim had been settled years before, but
legislative action had created a one-year extension of the filing period for certain claims;
at issue was whether that one-year period was tolled when the insurer agreed to reopen
the claim. (Id. at p. 755.) The Court of Appeal concluded that tolling did apply, but only
for the period after the claim is explicitly reopened, not while the insurer is considering a
request to reopen a claim: “As one of the purposes of equitable tolling is to allow the
insurers time to conduct full investigations into claims made, equitable tolling should
only apply—in the context of a previously denied claim—when the insurer has agreed to
reopen and reinvestigate the claim.” (Id. at p. 762.)
Mercury relies on Singh v. Allstate Ins. Co. (1998) 63 Cal.App.4th 135 (Singh) to
support its argument that the equitable tolling should not be applied for the period when
plaintiffs’ claim was reopened. That reliance is misplaced. In Singh, after an
13
unequivocal denial of a claim, the insured requested that the insurer reopen it. (Id. at p.
142.) The insurer responded by denying the request. (Ibid.) The Singh court concluded
that the limitations period was not equitably tolled during the 30-day period when the
insurer was considering the request to reopen the claim, stating that the “justifications for
equitable tolling are absent, once the carrier has initially denied the claim.” (Id. at p.
142.)
The court of appeal in Singh did not face a circumstance where the insurer
explicitly agreed to reopen the claim, as the Ashou court did, and as we do in this case.
Singh teaches that equitable tolling does not apply to the period between plaintiffs’
request that Mercury reopen the claim and Mercury’s February 28, 2012, letter agreeing
to do so. Similarly, equitable tolling does not apply to the period in June 2011, when
plaintiffs’ claim had been closed, but Mercury nevertheless considered plaintiffs’
objection to the adequacy of Mercury’s payments on the claim, eventually agreeing to
pay an additional amount, while emphasizing that the claim remained closed. Mercury’s
broader interpretation of the Singh case is unpersuasive.
In sum, the undisputed facts demonstrate that the deadline for plaintiffs to file their
lawsuit had not run on December 24, 2012, when Mercury informed plaintiffs that it was
again closing their claim; the limitations period had run for 12 days, between
November 18, 2009, and November 30, 2009, and for 320 days between April 14, 2011,
and February 28, 2012. Mercury’s arguments based on the proposition that the
limitations period had already elapsed on December 24, 2012, are rejected on that basis.
14
Nevertheless, as noted, plaintiffs did not file suit until February 4, 2013, a period
of another 42 days. Subtracting out days when the limitations period was equitably
tolled, based on the undisputed facts, plaintiffs did not file suit until 374 days after their
loss, and therefore after the one-year limitations period in their policy had already run.
We turn, then, to plaintiffs’ arguments as to why Mercury should be equitably estopped
from asserting the limitations period as a defense.
5. Mercury Is Not Estopped from Asserting the Limitations Period for Failure to
Adequately Notify Plaintiffs of the Deadline for Bringing Suit.
Plaintiffs contend that Mercury should be equitably estopped from asserting the
limitations period because it did not clearly state the deadline for bringing suit in its
December 24, 2012, letter. We disagree.
“A defendant may be equitably estopped from asserting a statutory or contractual
limitations period as a defense if the defendant’s act or omission caused the plaintiff to
refrain from filing a timely suit and the plaintiff’s reliance on the defendant’s conduct
was reasonable. [Citations.] The act or omission must constitute a misrepresentation or
nondisclosure of a material fact, rather than law. [Citation.] The defendant need not
intend to deceive the plaintiff to give rise to an equitable estoppel.” (Superior Dispatch,
Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186 (Superior
Dispatch).)
Ordinarily, to establish an equitable estoppel, “(1) [t]he party to be estopped must
be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must
so act that the party asserting the estoppel had a right to believe it was so intended; (3) the
15
other party must be ignorant of the true state of facts; and (4) he must rely upon the
conduct to his injury.” (Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 890
(Skulnick).)
The undisputed facts demonstrate that Mercury explicitly informed plaintiffs of
the one-year limitations period in their policy on at least three occasions, in letters dated
July 27, 2010, April 14, 2011, and December 24, 2012. This case is therefore unlike
Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260
(Spray), a case on which plaintiffs rely. In Spray, the court of appeal found a triable issue
of material fact as to whether the insurer should be estopped from asserting a one-year
contractual limitations period; the insured presented evidence that the insurer never
advised it of the limitations period, and that it was in fact unaware of the policy’s
limitation period. (Id. at pp. 1264-1265, 1269.)
Plaintiffs point out that Mercury’s “December 24, 2012, letter does not clearly
state that the statute of limitations had only a few days left to run.” Plaintiffs cite no
authority, however, that stands for the proposition that Mercury was required to calculate
for plaintiffs precisely when the limitations period expired. Spray teaches only that
insurers have a duty to inform the insured of a contractual limitations provision, and that
the failure to perform that duty could give rise to an equitable estoppel. (Spray, supra, 71
Cal.App.4th at pp. 1264-1265, 1269.) In other words, the insurer must explicitly disclose
the material fact of the existence of the contractual limitations period; there is no
requirement that it advise the insured on the legal question of when, precisely that
16
limitation period expires.8 (Superior Dispatch, supra, 181 Cal.App.4th at p. 186 [to
support application of equitable estoppel, the “act or omission must constitute a
misrepresentation or nondisclosure of a material fact, rather than law”].)
Furthermore, this is not a situation where Mercury lulled plaintiffs into sleeping on
their rights. Nothing Mercury told plaintiffs is reasonably understood to suggest that
their time for bringing suit was restarted when Mercury agreed to reopen their claim, and
began to run only when the claim was reclosed. The claim was reopened under an
express reservation of rights. And if anything, by omitting any discussion of tolling,
Mercury’s December 24, 2012, letter suggests the limitations period expired sooner than
it actually did, not later.9
We conclude that Mercury gave plaintiffs adequate notice of their policy’s
contractual limitations period for bringing suit, precluding plaintiffs from asserting any
equitable estoppel on that basis.
6. Mercury Is Not Estopped from Asserting the Limitations Period for Failure to
Deliver Plaintiffs a Copy of the Policy.
Plaintiffs assert that they were never given a copy of their policy, only a summary
“Declarations Page” that does not mention the one-year limitations period, so Mercury
may not enforce that limitations period. We disagree.
8 It is perhaps worth noting again here that Mercury’s December 24, 2012, letter
was sent to plaintiffs’ counsel.
9 Importantly, plaintiffs did not submit any evidence that their delay in bringing
suit was motivated by a belief that the limitations period had already expired, so that
bringing suit would be futile.
17
As discussed above, even if plaintiffs were never delivered a copy of their policy,
they had actual notice of the limitations period contained therein. Mercury informed
them of the provision on no fewer than three separate occasions, and well in advance of
its expiration. Plaintiffs’ actual notice of the policy provision precludes any application
of equitable estoppel to prevent Mercury’s enforcement of the provision. (Skulnick,
supra, 2 Cal.App.4th at p. 890.)
Plaintiffs cite Espree v. Western Pioneer Ins. Co. (1958) 159 Cal.App.2d Supp.
875 (Espree) for the proposition that Mercury may not “attempt to enforce the language it
never delivered.” In Espree, the court of appeal refused to enforce a policy exclusion that
could have provided a basis for denying coverage, because the insured had never been
given a copy of the portion of the policy containing the exclusion, and the insured was
unaware of the exclusion. (Id. at pp. 877-879.)
The present case is distinguishable from Espree. In Espree, the insured was
essentially denied the opportunity to seek other coverage for an excluded risk, because
the exclusion was not timely disclosed to it. Equity therefore dictated that the insurer be
estopped from invoking the exclusion as a basis for denying coverage. Here, in contrast,
plaintiffs received actual notice of the contractual limitations period for bringing suit long
before it expired, when Mercury first began to process the claim. The equitable
considerations here, therefore, weigh differently, and require a different conclusion
18
regarding the enforceability of the policy provision at issue.10 Where policy provision at
issue was, one way or another, plainly and clearly brought to the attention of the insured
in a timely manner, as it was in this case, it is enforceable, regardless of whether a
complete copy of the policy was delivered to the insured. (See Russell v. Bankers Life
Co. (1975) 46 Cal.App.3d 405, 413-414 [insurer may not rely on limitations or
exclusions not reasonably expected by insured “unless those limitations were plainly and
clearly brought to the attention of the insured”].)
7. The One-year Contractual Limitations Period Applies to Each of Plaintiffs’
Causes of Action.
Plaintiffs assert that their claim for breach of the covenant of good faith and fair
dealing is not governed by the one-year limitations period provided by their policy, but
rather the longer statutory limitations period that applies generally to bad faith claims.
This is a matter that has previously generated some controversy among the California
courts of appeal. (See Jang v. State Farm Fire & Casualty Co. (2000) 80 Cal.App.4th
1291, 1296-1302 [discussing split of authority on the issue].) Neither party, however,
attempts any discussion of that controversy in their briefing.
10 Moreover, Espree, a decision of the appellate division of the superior court, is
not binding precedent for this court. (See People v. Gipson (2013) 213 Cal.App.4th
1523, 1529 [“It is true that we typically follow the decisions of other appellate districts or
divisions, but only if we lack good reason to disagree.”].) To the extent Espree must be
read as plaintiffs read it, to state a bright line rule that the insurer may not enforce a
policy exclusion or limitation if the full policy was not delivered to the insured,
regardless of actual notice of the provision at issue, we decline to follow it.
19
In any case, the approach that is currently most widely accepted, and the one that
we find most appropriate, is that actions for breach of the implied covenant are
considered actions on the policy, governed by the contractual limitations period, so long
as the essential aim of the action is the recovery of benefits that were owed under the
policy. (Blue Shield of California Life & Health Ins. Co. v. Superior Court (2011) 192
Cal.App.4th 727, 736, fn. 12.) The essential aim of plaintiffs’ action is to recover
benefits that they contend were owed under the policy, and which Mercury refused to
pay. The one-year contractual limitations period in their policy therefore applies to each
of their causes of action, including their cause of action for breach of the covenant of
good faith and fair dealing.
In sum, the undisputed facts demonstrate that plaintiffs’ lawsuit was filed after the
applicable one-year limitations period had expired, despite the equitable tolling of
substantial periods of time, and Mercury is not equitably estopped from asserting the
limitations period as a defense. Summary judgment in favor of Mercury was therefore
properly entered. We turn, then, to plaintiffs’ claims of error regarding the trial court’s
award of costs to Mercury.
B. The Trial Court’s Award of Costs Was Not an Abuse of Discretion.
Plaintiffs argue that the trial court’s discretionary award of expert fees to Mercury
was an abuse of discretion in several respects, requiring reversal of that portion of the
trial court’s award of fees and costs. We find no abuse of discretion.
Section 998 allows for any party in a civil suit to serve a settlement offer to any
other party before the commencement of trial. (§ 998, subd. (b).) It further provides that
20
“[i]f an offer made by a defendant is not accepted and the plaintiff fails to obtain a more
favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and
shall pay the defendant’s costs from the time of the offer. In addition . . . the court or
arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover
postoffer costs of the services of expert witnesses . . . actually incurred and reasonably
necessary in . . . preparation for trial or arbitration . . . of the case by the defendant.”
(§ 998, subd. (c)(1).)
“In reviewing a trial court’s award of costs pursuant to section 998, the appropriate
standard of review is abuse of discretion. [Citation.] The party appealing the trial court’s
decision to award costs bears the burden ‘“to establish an abuse of discretion, and unless
a clear case of abuse is shown and unless there has been a miscarriage of justice a
reviewing court will not substitute its opinion and thereby divest the trial court of its
discretionary power.” [Citations.]’ [Citation.] To meet its burden, a complaining party
must therefore show that the trial court exercised its discretion in an ‘arbitrary, capricious
or patently absurd manner.’ [Citation.]” (Adams v. Ford Motor Co. (2011) 199
Cal.App.4th 1475, 1482.)
We find nothing arbitrary, capricious, or patently absurd in the court’s exercise of
discretion. Nothing in the record supports the conclusion that Mercury’s section 998
offers were not made in good faith or otherwise invalid. Nothing in the record supports
the conclusion that the expert witness costs claimed by Mercury were not actually
incurred, or not reasonably necessary preparations for trial (which had been set for
21
October 31, 2014, very shortly after Mercury’s motion for summary judgment was
heard).
The arguments presented by plaintiffs in support of a contrary conclusion are
unpersuasive. Plaintiffs cite to Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550
for the proposition that “the trial court must consider the relative financial position of the
parties in determining how much to award in costs.” The record here establishes that the
trial court did consider plaintiffs’ financial situations when setting the award of expert
witness fees. Plaintiffs would have preferred that the trial court give that issue greater
weight than it did, but can point to nothing in the record that would compel the trial court
to exercise its discretion differently.
Plaintiffs also assert that Mercury’s expert fees were not reasonably necessary
because their work duplicated inspections already conducted during the claims process.
It is not apparent why a home inspection conducted during the claims process, or expert
reports generated from such an inspection, would necessarily be adequate for litigation
purposes. Plaintiffs identify nothing specific in the record compelling the conclusion that
Mercury’s experts were simply “reinvent[ing] the wheel” and “double charg[ing] their
fees to this case,” as they assert.
Plaintiffs note that summary judgment was granted in Mercury’s favor on statute
of limitations grounds, which had “nothing to do with any work performed” by
Mercury’s litigation experts. This argument ignores that Mercury’s summary judgment
motion was heard only shortly before trial; Mercury reasonably needed to be fully
22
prepared to try the case, on any and all possible grounds. The litigation expert costs were
reasonably incurred under the circumstances, even if they turned out not to be necessary.
Plaintiffs object in particular to the award of expert witness fees as imposed
against Clair Pfuhl, Cathrin Pfuhl, and Charles Pfuhl III, contending that they are young
adults “just starting out in life” who “should not be saddled with a large judgment against
them.” Plaintiffs emphasize that the damages sought by the Pfuhl children were modest,
compared to those sought by their parents. Nevertheless, the Pfuhl children are adults,
who chose to press their claims, despite a request by Mercury that they dismiss their
claims against Mercury, in light of an adverse ruling with respect to their claims asserted
against other defendants, and despite section 998 offers of settlement to each of them.
Mercury’s trial preparations, including the fees expended on litigation experts,
necessarily had to address the claims asserted by all plaintiffs. Plaintiffs have
demonstrated no abuse of discretion in the trial court’s decision to make plaintiffs each
jointly and severally liable to Mercury for the entire amount of fees and costs.
III. DISPOSITION
The judgment is affirmed. Mercury is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
CODRINGTON
J.
23
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197 F.3d 915 (8th Cir. 1999)
Ronald B. Algren; Clarence R. Bell; Vincent A. Bejarano; Robert K. Berger; Salvador Chia; Alfred Chio; Patrick Cory; Michael L. Cosner; Larry E. Culver; Donald E. Delaney; James Durbala; Grant B. Earll; James Evans; Gerald U. Garrett; John P. Guffy; Harold B. Hathaway; James Hook; Harold Howard; Ted L. Hudson; Harvey Hunter; Larry J. Jackson; James B. Kemkle; Thomas King; Leon Koeppel; Peter Kursitis; James D. Lambert; Bill Lynch; William Martin; Don L. Mitchell; Charles B. Morris; Richard Mozga; John B. O'Brien; Darrel E. Portinga; Vern F. Reynolds; Gerald Roshek; Marvin L. Rubendan; Dale E. Sawhill; Kenneth W. Schiller; Wayne Schurman; Donald Somers; Gary E. Speedling; Verl E. Stoneburner; Frank E. Strable; Donald L. Umphress; Jerry Walters; Duane Ward; Charles Watson; and Richard West, Appellants,v.Pirelli Armstrong Tire Corporation; Pension and Benefits Plan Administration Committee, Plan Administrator, Appellees.Pirelli Armstrong Tire Corporation, Third-Party Plaintiff,v.Titan Tire Corporation, Third-Party Defendant.
No. 98-2441SI
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: October 5, 1999Filed: December 1, 1999
On Appeal from the United States District Court for the Southern District of Iowa.
Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
RICHARD S. ARNOLD, Circuit Judge.
1
Plaintiffs, all former hourly employees of Pirelli Armstrong Tire Corporation, brought this action claiming that Pirelli and its Pension and Benefits Plan Administration Committee violated the Employee Retirement Income Security Act of 1974 (ERISA) when they terminated retiree health care benefits in 1994. Plaintiffs also argue that Pirelli and the Committee were estopped to alter the employee welfare benefits. The District Court1 granted defendants summary judgment, and plaintiffs now appeal.
2
We agree with the District Court that the reasoning approved by this Court in Bierman v. Pirelli Armstrong Tire Corp., No. 4-96-CV-10285 (S.D. Iowa Oct. 31, 1997), aff'd, 162 F.3d 1163, 1998 WL 439881 (8th Cir. 1998) (involving similar claims brought by former Pirelli salaried employees), is equally applicable here. The governing Agreement on Employee Benefit Programs unambiguously conditioned retiree health benefits upon qualified retirement, and plaintiffs failed to produce any evidence of documents that indicated otherwise. See 29 U.S.C. §§ 1002(1), 1051(1) (vesting for "employee welfare benefit plans" not required); Wilson v. Moog Automotive, Inc., No. 98-3812 (8th Cir., Oct. 8, 1999). Plaintiffs did not have a vested right to retiree health benefits in advance of retirement. See Houghton v. SIPCO, Inc., 38 F.3d 953, 957-58 (8th Cir. 1994). It is undisputed that none of the plaintiffs retired before Pirelli terminated the retiree health care benefits. Plaintiffs' employment was terminated at a time when they were still active employees.
3
We also agree that plaintiffs' state-law promissory-estoppel claims were preempted by ERISA. See 29 U.S.C. § 1144(a) (ERISA preempts "any and all state laws insofar as they may now or hereafter relate to any employee benefit plan"); Wilson v. Zoellner, 114 F.3d 713, 717 (8th Cir. 1997) (discussing factors to consider in determining whether state law "relates to" ERISA plan). Any federal-law claim of estoppel, whether under federal common law or ERISA itself, must fail because the representations relied upon are contrary to the plain and unambiguous language of the plan documents.
4
Accordingly, we affirm.
NOTE:
1
The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.
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185 F.2d 222
SOKOL BROS. FURNITURE CO.v.COMMISSIONER OF INTERNAL REVENUE.
No. 13030.
United States Court of Appeals, Fifth Circuit.
Nov. 22, 1950.
Crampton Harris, George S. Brown, and Robert Scott Gordon, all of Birmingham, Ala., for petitioner.
Theron L. Caudle, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst. to Atty. Gen., Charles Oliphant, Chief Counsel, Bur. of Int. Rev., Claude R. Marshall, Sp. Atty. Bur. of Int. Rev., Washington, D.C., and Lee A. Jackson and Hilbert P. Zarky, Sp. Assts. to Atty. Gen., for respondent.
Before McCORD, BORAH and RUSSELL, Circuit Judges.
RUSSELL, Circuit Judge.
1
In this proceeding, Sokol Brothers Furniture Company, seeks a review and reversal of the decision of the Tax Court upholding the Commissioner's determination of the taxpayer's deficiency in excess profits taxes for 1944 and 1945. By stipulation all issues have been removed from the petition for review except the Tax Court's holding, contrary to the contentions of the petitioner, that in the computation of excess profits taxes imposed by section 710 of the Internal Revenue Code, 26 U.S.C.A. § 710, the election exercised by the taxpayer to compute its income from installment sales on the accrual basis in lieu of the installment basis1 applied not only to the computation of 'adjusted excess profits net income' as expressed in section 710(a)(1)(A), but also in the computation of 'corporation surtax net income' as expressed in section 710(a)(1)(B).2 This is the method of computation required by Treasury Regulation 112, Section 35.736(a)-3 (as amended by T.D. 5388).3
2
The petitioner vigorously contends that this Regulation is invalid because not authorized by, and in fact expressly contrary to, the language of the statute. The basis of its argument is that section 710(a)(1)(B) provides a specific concept (in its express reference to Chapter 1, section 15) of the 'corporation surtax net income' of the taxpayer, as in fact computed and returned for income tax purposes under Chapter 1. For Chapter 1 purposes the petitioner's 'corporation surtax net income' was computed under section 15 upon the installment basis of accounting provided by section 44(a) of the Internal Revenue Code, 26 U.S.C.A. §§ 15, 44, and the petitioner asserts that it is this 'corporation surtax net income' as thus computed which measures the computation, or limitation under section 710(a)(1)(B). Manifestly if this interpretation of the statute be correct, the regulation is contrary to the statute. In opposition to taxpayer's contention the Commissioner asserts with equal vigor that this contention disregards the legislative history and purpose of the excess profits tax statute and is not consonant with the statutory language. The Commissioner's position is at last bottomed upon the language of section 736(a), supra, buttressed by reference to the established principle by which consistency is required in accounting methods, and to the purpose of the Congress in the enactment under consideration to afford relief to installment basis taxpayers (which resulted as well in affording the privilege of election referred to as in the provision insuring that excess profits taxes should not exceed the lesser of section 710(a)(1)(A) or section 710(a)(1)(B), as the case might be). His argument, summarized, is that the language of the pertinent provisions of section 736(a) plainly specifies that the election is 'for the purposes of the tax imposed by this subchapter,' that is, 'for excess profits tax purposes' and that in case of such election the accrued income method of accounting is required to be used for the purposes of computing the tax under section 710(a)(1)(B) equally as it is required to be used in the computation required for the purposes of section 710(a)(1)(A), since either and both of these are equally a part of the excess profits tax subchapter. If this position is sound, of course Regulation 112, section 35.736(a)-3 (as amended by T.D. 5388), is entirely in accord with the statutory language and purpose. In order to determine the validity of the Regulation in question, we are therefore required to consider these opposing contentions of the parties in the light of the language and provisions of the excess profits tax subchapter of the Internal Revenue Code.4 There are present in the case no questions of the correctness in detail of any computation of the asserted deficiency, save as it is controlled by the method of accounting which the taxpayer is required to employ in the computation of its excess profits taxes.
3
In its opinion upholding the validity of Regulation 112, section 35.736(a)-3 (as amended by T.D. 5388), the Tax Court followed its majority decision in Basalt Rock Company v. Commissioner5 which involved Regulation 112, section 35.736(b)-3 (as amended by T.D. 5388), and in turn the proper construction of section 736(b) of the Internal Revenue Code. This Regulation and statute relate to the method of computing income from long term contracts, that is, by the percentage of completion method of accounting. It is not questioned that in principle the issue was the same as that involved in the proceeding now before us. In the Basalt Rock Company case, supra, five judges of the Tax Court dissented (though the dissenting opinions reveal some difference of basis for the respective dissents), and upon petition for review the decision of the Tax Court was reversed by the Court of Appeals for the 9th Circuit in Basalt Rock Company v. Commissioner, 180 F.2d 281. There the Court upheld the contention of the taxpayer, as now presented by petitioner, Sokol Furniture Company, with reference to the Regulation and statutory provisions claimed to be controlling in this case, and held the Regulation invalid because 'inconsistent with section 710(a)(1)(B),' supra. Petitioner urges this adjudication upon us as determinative of the present issue. The respondent-Commissioner, conceded there is no distinction in principle between the question involved in the Basalt case and that presently presented, but asserts that the decision is wrong 'on its face,' and resulted from a misreading of the statute.
4
We acknowledge that there is some room for valid argument on both sides of the issue. In any event, the decision of another Court of Appeals upon an issue and principle the same is properly entitled to great weight, and itself affords persuasive argument in the determination of the present case. However, after full consideration, we are unable to follow the decision in the Basalt Rock Company case, supra.
5
In this case the argument for the petitioning taxpayer treats the provisions of section 710(a)(1)(B) as a definite limit upon the amount of excess profits imposed by section 710(a)(1)(A). The argument in behalf of the Commissioner is that section 710(a)(1)(B) is an alternative tax, even if also a limitation. We need not determine specifically this difference between the litigants since our view of the section accepts to some extent the contentions of each. What is material to us is that the 'excess profits tax' is actually imposed by section 710(a)(1), but its amount (the lesser), must be determined by computation under section 710(a)(1)(A) and section 710(a)(1)(B). Both of these subsections are a part of the excess profits tax statute set forth in Chapter 1. The language of section 736(a) of the excess profits tax statute is significant and controlling. After providing tests of taxpayer eligibility, it authorizes an election by the taxpayer 'for the purposes of the tax imposed by this subchapter, to compute; in accordance with regulations prescribed by the Commissioner with the approval of the Secretary, its income from installment sales on the basis of the taxable period for which such income is accrued'. (Emphasis supplied.) This of course refers to computation of income upon the accrual basis of accounting. The statute does not provide that the taxpayer may elect the accrual basis for the purpose of computing its 'adjusted excess profits net income,' though it seems to us it must be thus read if we should confine its effect only to section 710(a)(1)(A) as contended by the taxpayer.
6
Acceptance of the validity of one or the other of the opposing contentions here urged must come from the weight and effect to be given the above quoted provision of the statute. Giving to it the meaning and effect that we do, it necessarily follows, we think, that for the purposes of the excess profits tax imposed by section 710(a)(1) the computation must be made in accordance with the elected accrual method of accounting. It is the 'income' of the taxpayer computed on the accrual basis which must at last furnish the primary basis for the ascertainment of the excess profits tax in either event, even though the result is tested and actually ascertained by determining the lesser amount of either section 710(a)(1)(A) or section 710(a)(1)(B). The unqualified word 'income' has a definite concept for all tax purposes. It is the foundation of the computation of both 'adjusted excess profits net income' and 'corporation surtax net income.' Neither subsection refers to accounting methods to be employed in the necessary computation. It is agreed that section 710(a)(1)(A) must be computed by use of the accrual method. We should find clear language before reading into section 710(a)(1)(B) the prescription of a different method of accounting for a computation which is alternative to and limited by, results obtained by the admittedly prescribed accrual basis of accounting. We find no such language in the statute before us. Section 736(a), where applicable, relates to income for the purpose of both computations so far as the method of accounting is concerned.
7
The language of section 710(a)(1)(B), 'the corporation surtax net income, computed under section 15 * * * but without regard to the credit provided in section 26(e)', should not be construed to include and enforce the accounting method employed in the computation under Chapter 1. If this conveys a specific concept, it is a concept only of corporation surtax net income, to which clings no implication of any particular method of accounting by which it is computed. Section 15 of Chapter 1 contains no reference to any particular method of accounting. However, as relates to the excess profits tax, the method of accounting to be employed 'for the purposes of the tax imposed' by that subchapter is, as concerns this case, for excess profit tax purposes, fixed by the election of the taxpayer.
8
Under our view that the provisions of section 736(a) must be applied as an integral part of the excess profits tax statute, and therefore operates directly upon both of the measures of the excess profits tax imposed, it follows that the Regulation here attacked is in accord with the statute and a proper declaration to effectuate the legislative purpose that whether the excess profits tax imposed be the amount resulting from computation under section 710(a)(1)(A) or section 710(a)(1)(B), the accounting method employed in either instance shall be that method provided by the statute to result from the election by the taxpayer.
9
The ruling of the Tax Court which upholds and enforces the validity of Regulation 112, section 35.736(a)-3 (as amended by T.D. 5388) is correct and is affirmed.
1
The portion of the statute material here provides that the taxpayer, if eligible under the statute, 'may elect, in its return for the taxable year, for the purposes of the tax imposed by this subchapter, to compute, in accordance with regulations prescribed by the Commissioner with the approval of the Secretary, its income from installment sales on the basis of the taxable period for which such income is accrued, in lieu of the basis provided by section 44(a). * * * ' Sec. 736(a), Internal Revenue Code, 26 U.S.C.A. § 736(a)
2
'(1) General rule. There shall be levied, collected, and paid, for each taxable year, upon the adjusted excess-profits net income, as defined in subsection (b), of every corporation (except a corporation exempt under section 727) a tax equal to whichever of the following amounts is the lesser:
'(A) 95 per centum of the adjusted excess profits net income, or
'(B) an amount which when added to the tax imposed for the taxable year under Chapter 1 (other than section 102) equals 80 per centum of the corporation surtax net income, computed under section 15 or Supplement G, as the case may be, but without regard to the credit provided in section 26(e) (relating to income subject to the tax imposed by this subchapter), and without regard to 80 per centum of the credit provided in section 26(h) (relating to credit for dividends paid on certain preferred stock).' Sec. 710(a)(1)(A)(B), Internal Revenue Code, 26 U.S.C.A. § 710(a)(1)(A, B).
3
'For the purposes of determining the excess profits tax under section 710(a)(1)(B), as an amount which when added to the normal tax and surtax for such year equals 80 per cent of the corporation surtax net income computed without regard to the credit under section 26(e) the corporation surtax net income shall include income from installment sales computed upon the straight accrual basis * * * '
4
26 U.S.C.A. § 710-784
5
10 T.C. 600
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474 F.2d 1350
U. S.v.Scales
72-1120
UNITED STATES COURT OF APPEALS Seventh Circuit
2/2/73
1
N.D.Ill.
AFFIRMED
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934 F.2d 629
Jerry Joe BIRD, Petitioner-Appellee Cross-Appellant,v.James A. COLLINS, Director, Texas Department of CriminalJustice, Institutional Division,Respondent-Appellant Cross-Appellee.
No. 91-2630.
United States Court of Appeals,Fifth Circuit.
June 16, 1991.Certiorari Denied June 17, 1991.
See 111 S.Ct. 2820.
Andreal L. March, Asst. Atty. Gen., Austin, Tex., for respondent-appellant cross-appellee.
Eden E. Harrington, Texas Resource Center, Austin, Tex., for petitioner-appellee cross-appellant.
Appeals from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.
BY THE COURT:
1
Petitioner presented to the United States District Court for the Southern District of Texas at Brownsville, Texas his second petition for a writ of habeas corpus. See 28 U.S.C. Sec. 2254, et seq. The petition presented four claims for relief. The district court dismissed claims one, two and four but declined to dismiss claim number three.
In claim number three petitioner urged:
2
"Reliance on appellate courts' 'uniform interpretation' of the Texas capital sentencing statute prevented counsel from investigating, developing, and presenting relevant mitigating evidence in support of a life sentence for Bird."
3
Petitioner persuaded the district court that claim number three presented a substantial legal question requiring more time for decision. The district court issued a stay of execution and granted a requested certificate of probable cause. Both the State and petitioner appeal.
4
We are persuaded that the district court properly dismissed claims one, two and four and affirm the dismissal for essentially the reasons stated by the district court.
5
The district court hesitated over the expressed uncertainty of the Supreme Court in translating the concept of actual innocence to innocence of a death sentence. The district court quoted from Smith v. Murray, 477 U.S. 527, 539, 106 S.Ct. 2661, 2884, 91 L.Ed.2d 434 (1986) that:
6
We do not undertake here to define what it means to be "actually innocent" of a death sentence.... Demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is "actually innocent" of the sentence he or she received. The approach taken by the dissent would turn the case in which an error results in a fundamental miscarriage of justice, the "extraordinary case," [Murray v. ] Carrier, supra, 477 U.S. at 496, 106 S.Ct. [2639], at 2650, [91 L.Ed.2d 397 (1986) ], into an all too ordinary one.
7
We recently acknowledged this uncertainty in Cuevas v. Collins, 932 F.2d 1078 (5th Cir.1991). However we also concluded that whatever may be the "extraordinary" level of Penry type evidence not given expression under the question of deliberateness and future dangerousness sufficient to render a petitioner "actually innocent" of a sentence as opposed to error that "might have affected [its] accuracy", it was not presented by Cuevas. We reach the same conclusion here.
8
The stay of execution is vacated and the certificate of probable cause vacated. Our ruling is upon the merits of the case. See Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).
9
AFFIRMED IN PART AND REVERSED IN PART.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MEDINOL LTD.,
Plaintiff-Appellant
v.
CORDIS CORPORATION, JOHNSON & JOHNSON,
Defendants-Appellees
______________________
2015-1027
______________________
Appeal from the United States District Court for the
Southern District of New York in No. 1:13-cv-01408-SAS,
Judge Shira Ann Scheindlin.
______________________
Decided: April 19, 2018
______________________
RICHARD H. PILDES, New York, NY, argued for plain-
tiff-appellant. Also represented by RICHARD DELUCIA,
ELIZABETH GARDNER, ALOYSIUS ANTONY PFEFFER, ANDREW
D. SILVERMAN, Orrick, Herrington & Sutcliffe LLP, New
York, NY; ALEC SCHIERENBECK, Washington, DC; ROBERT
L. URIARTE, Menlo Park, CA.
GREGORY DISKANT, Patterson Belknap Webb & Tyler
LLP, New York, NY, argued for defendants-appellees.
2 MEDINOL LTD. v. CORDIS CORPORATION
Also represented by EUGENE M. GELERNTER, LAURA
KAUFMAN.
______________________
Before DYK, REYNA, and STOLL, Circuit Judges.
DYK, Circuit Judge.
I
In 2013, Medinol brought a patent-infringement suit
against Cordis Corporation and Johnson & Johnson
(“Cordis”). The defendants asserted a defense of laches,
relying on this court’s decision in A.C. Aukerman Co. v.
R.L. Chaides Construction Co., 960 F.2d 1020 (Fed. Cir.
1992) (en banc). The parties agreed that the district court
would hold a bench trial on the laches defense. Before
trial, the Supreme Court granted certiorari to decide
whether the defense of laches was a defense to infringe-
ment in copyright. Petrella v. Metro-Goldwyn Mayer, Inc.,
570 U.S. 948 (2013). In its pretrial memorandum of law,
Medinol “reserve[d] the right to argue that the equitable
defense of laches should not be applied to bar a patentee’s
legal claim for damages . . . based on the outcome of the
pending appeal to the Supreme Court in Petrella v. Metro-
Goldwyn Mayer, Inc.” J.A. 217.
On April 4, 2014, the district court entered judgment
that the defense of laches barred damages for Medinol’s
claims of patent infringement. J.A. 1185. Medinol did not
appeal, and the judgment became final on May 4, 2014.
On May 19, 2014, the Supreme Court decided Petrella,
which held that laches is not a defense in copyright. 134
S. Ct. 1962, 1978–79 (2014).
Three months later, on August 5, 2014, Medinol
brought a motion under Federal Rule of Civil Procedure
60(b)(6) seeking relief from the final judgment, arguing
that the Petrella decision was an intervening change in
law that upended the laches framework upon which the
MEDINOL LTD. v. CORDIS CORPORATION 3
judgment was based. The district court denied the Rule
60(b)(6) motion, explaining that Aukerman remained
controlling precedent despite Petrella.
Medinol appealed the denial of the Rule 60(b) motion
to our court, and we held the appeal in abeyance while we
considered SCA Hygiene en banc. In the en banc decision,
our court held that laches remained a viable defense in
the patent infringement context. See SCA Hygiene Prods.
Aktiebolag v. First Quality Baby Prods. LLC, 807 F.3d
1311, 1328 (Fed. Cir. 2015) (en banc), vacated in part by
137 S. Ct. 954 (2017). Medinol and Cordis then moved for
summary affirmance in light of the SCA Hygiene en banc
decision, which we granted, affirming the district court.
Medinol petitioned for certiorari. The Supreme Court,
having granted certiorari in SCA Hygiene, held Medinol’s
petition.
The Supreme Court then reversed SCA Hygiene and
held that laches is no longer a defense to bar damages for
patent infringement. 137 S. Ct. at 967. The Supreme
Court then granted Medinol’s petition for certiorari,
vacated the judgment, and “remanded to the United
States Court of Appeals for the Federal Circuit for further
consideration in light of SCA Hygiene.” Medinol Ltd. v.
Cordis Corp., 137 S. Ct. 1372 (2017). We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(1). A district court’s Rule
60(b)(6) ruling is reviewed for abuse of discretion.
II
The district court’s denial of Rule 60(b) relief was
based on Aukerman, which has since been overruled by
the Supreme Court. See SCA Hygiene, 137 S. Ct. at 967.
That judgment is accordingly vacated, and this case is
remanded to the district court to determine whether the
“extraordinary circumstances” showing required under
4 MEDINOL LTD. v. CORDIS CORPORATION
Rule 60(b)(6) has been established. 1 As part of the ex-
traordinary circumstances analysis, the district court
should consider Medinol’s failure to appeal the original
judgment under the Supreme Court’s decision in Gonza-
lez v. Crosby, 545 U.S. 524, 536–38 (2005).
VACATED AND REMANDED
COSTS
No costs.
1 See Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 864 (1988) (quoting Ackermann v. United
States, 340 U.S. 193, 199 (1950)) (“We have previously . . .
caution[ed] that [Rule 60(b)(6)] should only be applied in
‘extraordinary circumstances.’”).
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21274
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK MORALES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-876-ALL
--------------------
January 27, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Frank Morales appeals his guilty-plea conviction for
possession with intent to distribute 100 grams or more of heroin
and importation of that amount of heroin. Morales contends that
his sentence should be vacated and the case remanded for
resentencing because the district court failed to consider
Amendment 635 to the Sentencing Guidelines in denying his request
for a reduction for his minor role in the offense under U.S.S.G.
*
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. 01-21274
-2-
§ 3B1.2. Morales also avers that the district court failed to
make sufficient factual findings with regard to this issue so as
to allow this court to properly review the issue.
First, the district court’s findings were sufficient.
United States v. Melton, 930 F.2d 1096, 1099 (5th Cir. 1991); see
also FED. R. CRIM. P. 32(c)(1). Second, the district court
specifically stated at sentencing that it had considered
Amendment 635 in denying Morales a role reduction. Lastly, the
district court did not clearly err by denying Morales a role
reduction because it is clear from the record that Morales was
not substantially less culpable than the average participant in
the offense and that his role was not peripheral to the
advancement of the illicit activity. United States v. Deavours,
219 F.3d 400, 404 (5th Cir. 2000); United States v.
Gallardo-Trapero, 185 F.3d 307, 324 (5th Cir. 1999); United
States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001).
AFFIRMED.
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960 A.2d 455 (2008)
COM.
v.
PERKINS.
No. 275 MAL (2008).
Supreme Court of Pennsylvania.
October 28, 2008.
Disposition of petition for allowance of appeal. Denied.
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 44627
STATE OF IDAHO, )
)
Plaintiff-Respondent, )
Boise, May 2018 Term
)
v. )
Filed: August 1, 2018
)
JUAN SALINAS, JR., )
Karel A. Lehrman, Clerk
)
Defendant-Appellant. )
_______________________________________ )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Hon. Steven Hippler, District Judge.
The district court’s judgment of conviction is affirmed.
Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Brian
R. Dickson argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark
W. Olson argued.
_____________________
BRODY, Justice
This case addresses whether the district court erred in its application of Idaho Rule of
Evidence 404(b). Juan Salinas was charged with the crime of attempted lewd conduct with a
minor under sixteen. He engaged in online conversations with a detective posing as an adult. He
discussed entering a sexual relationship with the fictitious adult and her minor daughter, and was
arrested when he later drove to a hotel where he and the detective had agreed to meet. The State
sought to admit evidence of similar conversations that Mr. Salinas had with others, as well as
sexual pictures of a fifteen-year-old and four-year-old girl, not part of the State’s fictitious
scenario. The district court admitted all the challenged evidence except the picture of the fifteen-
year-old, which the court found was propensity evidence and prohibited under the Idaho Rules of
Evidence. The district court found Salinas guilty of attempted lewd conduct after a bench trial.
Mr. Salinas appeals the judgment of conviction, contending that the challenged evidence should
1
have been excluded as inadmissible propensity evidence. We conclude the district court did not
err in admitting the challenged evidence and affirm the judgment of conviction.
I. BACKGROUND
The State and Mr. Salinas agree on the relevant facts in this case. On December 15, 2015,
an Ada County Sheriff’s Office detective observed a Craigslist advertisement entitled “Taboo
Moms Only.” The ad was created on December 14, 2015, and ostensibly sought a sexual
encounter with a mother and daughter, stating “[a]ge not an issue.” The detective determined that
Salinas posted the ad based on the email address associated with the account. The detective then
used the fictitious persona of a 34-year-old single mother named Jill with a 9-year-old daughter
named Chloe to engage Salinas in conversations—initially by email, then by text message. After
several weeks of sexually explicit exchanges, Salinas requested to meet Jill and Chloe. The
detective (posing as Jill) set up a meeting at a nearby hotel. Salinas was arrested upon showing
up at the hotel, and the State charged him with attempted lewd conduct with a minor under
sixteen years old.
The State filed a notice of intent to use in its case in chief certain evidence of Salinas’
other acts to establish or prove motive or intent, in accordance with Rule 404(b) of the Idaho
Rules of Evidence. The State sought to use evidence that (1) Salinas emailed himself a nude
picture of an approximately four-year-old girl in a sexually-suggestive position; (2) Salinas
requested and received a nearly-nude picture of a girl who responded to a separate sexual
advertisement and who claimed to be fifteen years old; and (3) Salinas engaged in two additional
conversations with women with young daughters who answered his “Taboo Moms Only”
advertisement, using sexually explicit language regarding the daughters. Salinas objected, and
the court held a hearing on the State’s motion on July 29, 2016. The trial judge ruled all evidence
except the picture of the fifteen-year-old girl admissible as relevant to motive.
Salinas proceeded to a bench trial on August 16–18, 2016. The court found him guilty of
the charged conduct and sentenced him to fifteen years, with four-and-a-half years fixed and ten-
and-a-half years indeterminate. Salinas timely appealed, claiming the court erred in admitting the
challenged evidence as relevant to motive. We now affirm.
II. STANDARD OF REVIEW
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
2
without the evidence.” I.R.E. 401. “Whether evidence is relevant is an issue of law” that this
Court reviews de novo. State v. Page, 135 Idaho 214, 219, 16 P.3d 890, 895 (2000). Idaho courts
employ a two-step analysis to determine the admissibility of evidence under Rule 404(b). State v.
Russo, 157 Idaho 299, 308, 336 P.3d 232, 241 (2014) (citing State v. Pepcorn, 152 Idaho 678,
688, 273 P.3d 1271, 1281 (2012)). “First, the evidence ‘must be sufficiently established as fact
and relevant as a matter of law to a material and disputed issue other than the character or
criminal propensity of the defendant.’” Id. (quoting Pepcorn, 152 Idaho at 688, 273 P.3d at
1281). Second, the court must conduct a Rule 403 analysis to ensure that the evidence’s
probative value is not “substantially outweighed by the danger of unfair prejudice.” Id.; I.R.E.
403.
III. ANALYSIS
A. The district court did not err in admitting the challenged evidence.
Salinas’ only issue on appeal is whether the challenged evidence the trial court admitted
in this case—the nude photo of the four-year-old girl and the two additional conversations
regarding the “Taboo” ad—was relevant as a matter of law. Salinas contends that the admitted
evidence is only relevant to the issue of propensity, and is thus inadmissible under Rule 404(b)
of the Idaho Rules of Evidence. The State claims that the trial court properly admitted the
evidence as relevant to Salinas’ motive, and that the evidence was also relevant to Salinas’
intent. The State contends that the relatively short timeframe of approximately one month during
which Salinas acquired the picture of the four-year-old and engaged in sexually-graphic
conversations with mothers—including the detective’s fictional persona—tended to demonstrate
Salinas’ motive and intent in driving to the hotel to meet “Jill” and “Chloe” the day he was
arrested.
The relevant text of Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that the person 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 . . . .
I.R.E. 404(b). The policy underpinning the prohibition on character evidence is “the protection
of the criminal defendant.” State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). This
Court has noted that character evidence prejudices defendants because “it induces the jury to
believe the accused is more likely to have committed the crime on trial because he is a man of
3
criminal character.” Id. (quoting State v. Wrenn, 99 Idaho 506, 510, 584 P.2d 1231, 1235
(1978)). “Evidence of uncharged misconduct may not be admitted pursuant to I.R.E. 404(b)
when its probative value is entirely dependent upon its tendency to demonstrate the defendant’s
propensity to engage in such behavior.” Id. at 54, 205 P.3d at 1190.
However, Rule 404(b) also lists purposes under which a court may admit the evidence.
The rule “represents one of inclusion which admits evidence of other crimes or acts relevant to
an issue in the trial, except where it tends to prove only criminal disposition.” Russo, 157 Idaho
at 308, 336 P.3d at 241 (quoting United States v. Brown, 562 F.2d 1144, 1147 (9th Cir. 1977)).
“Motive is a well-accepted method of proving the ultimate facts necessary to establish the
commission of a crime, without reliance upon an impermissible inference of bad character.” Id.
(quoting 29 Am. Jur. 2d Evidence § 439 (2008)). “Motive is generally defined as that which
leads or tempts the mind to indulge in a particular act.” Pepcorn, 152 Idaho at 689, 273 P.3d at
1282 (quoting State v. Stevens, 93 Idaho 48, 53, 454 P.2d 945, 950 (1969)). Intent “is the purpose
to use a particular means to effect a certain result.” Stevens, 93 Idaho at 53, 454 P.2d at 950
(citing People v. Molineux, 61 N.E. 286, 297 (N.Y. 1901)).
As an initial matter, the district court determined that a factual basis existed for the
challenged evidence and that the evidence survived a Rule 403 balancing test. The district court
further determined that the challenged evidence in this case was relevant to motive. Specifically,
the State had to prove beyond a reasonable doubt that Salinas attempted lewd conduct with a
minor child when he drove to the hotel on the evening of January 20, 2016.
Prior to this Court’s 2008 decision in Grist, the State could introduce “corroborating”
evidence as relevant, “particularly in sex crime cases involving minor victims.” State v. Moore,
120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991). In Grist, this Court disallowed corroboration
evidence if that evidence served to merely repackage propensity evidence under a different
name. 147 Idaho at 54, 205 P.3d at 1190. In other words, the State could no longer admit
evidence of another sex act solely to demonstrate an increased probability for the act for which a
defendant was charged, and thus “corroborating” the victim’s testimony while increasing the
chance that the defendant committed the crime. Id.
In 2014, this Court in Russo affirmed a district court’s decision to admit a defendant’s
fantasies involving sexual assault into evidence as relevant to motive in the crime of rape. 157
Idaho at 308, 336 P.3d at 241. The defendant claimed this was propensity evidence not personal
4
to the victim, and thus not relevant to motive. Id. We disagreed and noted “[t]here is no
requirement that evidence must show that the motive for committing the crime was personal to
the victim.” Id. We further held “that the evidence of Defendant’s fantasies and his collecting
pornography that was consistent with those fantasies was relevant to his motive in this case.” Id.
In support of his challenge, Salinas would have this Court rely on a 2014 Idaho Court of
Appeals decision, State v. Folk, 157 Idaho 869, 341 P.3d 586 (Ct. App. 2014), to vacate the
judgment of conviction. The Court of Appeals determined that the trial court erred by admitting
into evidence two prior convictions for child molestation—one in 1992 and one in 1999—at the
defendant’s 2012 trial. Id. at 878, 341 P.3d at 595. The Court of Appeals stated, “[u]nlike Russo,
where Russo’s fantasies and collections of pornography consistent with his fantasies were
relevant to Russo’s motive—that which leads or tempts the mind to indulge in a particular act—
the prior convictions in this case are not relevant to prove motive.” Id. (citation omitted). The
Folk court also discussed intent, however, noting that “intent was not a materially disputed issue”
to the defendant’s completed sexual act, and thus the prior convictions were not relevant to prove
intent. Id. at 879, 341 P.3d at 596.
In this case, the district court did not err in admitting the challenged evidence because it
was relevant to proving Salinas’ intent. This was an attempt case, and is thus distinguishable
from Folk. The challenged evidence that the district court admitted was not simply an instance
where Salinas’ possession of child pornography and explicit online conversations made him
more likely to be the type to engage in lewd conduct with a child. Rather, the sexually-charged
prepubescent photograph combined with the explicit conversations regarding the “Taboo” ad—
all occurring in a short window of time leading up to his arrest—were directly relevant to
Salinas’ intent. Because this is an attempt case with no completed sex act, the State needed to
prove the explicit conversations were not mere fantasies upon which Salinas would never act,
and that Salinas was not simply seeking a sexual tryst with an adult. The State had to prove he
attempted to engage in lewd conduct with a minor under sixteen. The challenged evidence was
relevant to the State’s required proof regarding Salinas’ intent when he arrived at the hotel that
night. In other words, the challenged evidence went directly to the issue of whether he intended
to consummate a sexual act involving a prepubescent child. Because this Court finds the district
court did not err when it admitted the challenged evidence since it was relevant to a non-
propensity purpose, we need not consider the other Rule 404(b) exceptions.
5
IV. CONCLUSION
For the foregoing reasons, the Court affirms the district court’s judgment of conviction.
Chief Justice BURDICK, Justices HORTON, BEVAN, and Justice Pro Tem WILDMAN
CONCUR.
6
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744 N.W.2d 132 (2008)
Anthony DiVERGILIO, Jr. and Victoria A. Valentine, Plaintiffs/Counter-Defendants/Appellants,
v.
CHARTER TOWNSHIP OF WEST BLOOMFIELD, Defendant/Counter-Plaintiff/Appellee, and
West Bloomfield Wetlands Review Board and West Bloomfield Board of Trustees, Defendants-Appellees.
Docket No. 133174. COA No. 261766.
Supreme Court of Michigan.
February 19, 2008.
On order of the Court, the motion for reconsideration of this Court's November 29, 2007 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously.
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104 Ill. App.2d 218 (1968)
244 N.E.2d 369
Pacesetter Homes, Inc., an Illinois Corporation, Plaintiff-Appellee,
v.
Village of Olympia Fields, a Municipal Corporation, Defendant-Appellant.
Gen. No. 52,916.
Illinois Appellate Court First District, Second Division.
December 30, 1968.
*219 Edward A. Scott, and Ross, Hardies, O'Keefe, Babcock, McDugald & Parsons, of Chicago (H. Marlin Smith and Fred P. Bosselman, of counsel), for appellant.
James W. Cotter and Gregory L. Tumbarello, of Chicago, for appellee.
MR. PRESIDING JUSTICE BURKE delivered the opinion of the court.
This appeal is taken from a decree entered on the pleadings declaring unconstitutional portions of an architectural control ordinance enacted by defendant, Village of Olympia Fields.
On March 4, 1966, plaintiff, Pacesetter Homes, Inc., through its authorized agent, filed an application, together with architectural plans and other pertinent matters, with the Building Commissioner of the Village for a permit to construct a singe-family residence building in a subdivision of the Village. The application was referred *220 to the Architectural Advisory Committee of the Village which, on April 23, 1966, determined that the application not be allowed on the ground that the proposed building violated Ordinance 63 of the Village regulating the architectural designs and styles of new construction within the Village, and the remodeling or alteration of existing structures. The application was disallowed because the proposed construction was "architecturally similar" to other buildings in the area of the proposed construction site.
The preamble to Ordinance 63 recites that the purpose of the Ordinance is to provide for and protect the health, safety, comfort and convenience of the Village residents. The preamble asserts the desirability of the enactment of reasonable standards for home construction and subdivision design, and recites that "excessive similarity, dissimilarity or inappropriateness in exterior design and appearance of property" adversely affects the desirability, stability, economic and taxable value, and the like, of nearby property.
The Ordinance provides in pertinent part that plans for new building construction, or the remodeling or alteration of existing buildings within the Village are to be submitted to the Village Building Commissioner for the issuance of a building permit. If the Commissioner "believes" that the proposed construction or alteration "may" produce excessive similarity, dissimilarity or inappropriateness in relation to nearby property, he shall refer the application to the Architectural Advisory Committee for further consideration. If "any members" of the Committee likewise "believe" that the proposed construction or alteration "may" produce the same result, he shall direct the Building Commissioner to refer the application to the Architectural Advisory Committee as a body. The Committee must then consider the application, on the same basis as did the Building Commissioner, and "no building permit shall be issued" unless a majority *221 of the Committee determines that the proposed construction or alteration will not produce the "harmful effects" as therein provided.
The standards to be employed by the Building Commissioner and by the Architectural Advisory Committee in determining whether a proposed construction or alteration is violative of the Ordinance are set out in subparagraph E of section 1 of the Ordinance. It provides that the Commissioner and the Committee, in reaching a determination, shall consider "whether there exists one or more of the following:
"(i) Excessive similarity or dissimilarity of design in relation to any other structure existing or for which a permit has been issued within a distance of 1,000 feet of the proposed site, or in relation to the characteristics of building design generally prevailing in the area, in respect to one or more of the following features:
"(1) Apparently identical facade;
"(2) Substantially identical size and arrangement of either doors, windows, porticoes or other openings or breaks in the facade facing the street, including a reverse arrangement thereof;
"(3) Cubical contents;
"(4) Gross floor area;
"(5) Other significant design features, such as, but not limited to, roof line, height of building, construction, material, or quality of architectural design; or
"(6) Location and elevation of building upon the site in relation to the topography of the site and in in relation to contiguous property.
"...
"(ii) Inappropriateness in relation to any other property in the same or any adjoining district of design, landscaping, building materials and use thereof, *222 orientation to site, or placement of parking, storage or refuse areas."
If the proposed plan of construction or alteration is approved by a favorable vote of a majority of the Architectural Advisory Committee, the Ordinance provides that the Committee shall serve notice upon the Building Commissioner to issue the building permit. Where, however, the Committee disapproves the application, no permit shall issue except as directed by the Village Board of Trustees. The applicant whose application has been disapproved by the Committee has the right to appeal to the Village Board, at which appeal all records and findings theretofore made before the Commissioner and the Committee shall be made available to the Board. The Village Board has the power, by majority vote, to refer the application back to the Architectural Advisory Committee for further consideration, or, by a favorable vote of not less than two-thirds of all the Board's members, to set aside the Committee's action on the application and to direct the Building Commissioner to issue a building permit to the applicant in accordance with the application, provided that all other building requirements of the Village have been complied with.
Plaintiff, upon receipt of notice of the Architectural Advisory Committee's disapproval of its application, appealed to the Village Board of Trustees as provided by the ordinance. The Board also disapproved the application and refused to grant the desired building permit. Plaintiff thereupon filed this action in the Circuit Court for mandamus to compel the issuance of a building permit and to have Ordinance 63 of the Village declared unconstitutional and void. The Village answered, denying all material allegations contained therein. Plaintiff thereafter moved for judgment on the pleadings, pursuant to section 45(5) of the Civil Practice Act, on the ground that the litigation could be terminated upon a determination *223 by the court of the constitutionality of the Ordinance.
After additional matters were filed by the parties in relation to the plaintiff's motion for judgment on the pleadings, the court granted the motion and entered a decree finding that subsections D and E of section 1 of the Ordinance (dealing, respectively, with the powers of the Building Commissioner and the Architectural Advisory Committee to withhold the issuance of a building permit upon a determination that the proposed construction or alteration violated the Ordinance, and the standards under which such determination was to be made) were unconstitutional and void as an unlawful delegation of legislative authority to an administrative body without proper standards having been set. The denial of plaintiff's application for the building permit was held to be an unlawful invasion of plaintiff's property rights under the constitutions of the United States and the State of Illinois, and the Village was enjoined from enforcing said portions of the Ordinance against plaintiff. The Village appeals from this decree.
The Village contends that Ordinance 63 gives the Architectural Advisory Committee advisory powers only. For that reason, the Village maintains, it was not necessary that specific standards be enacted to control the actions of the Committee.
[1] As pointed out by a noted authority on the subject of Administrative Law, "[a]dvisory opinions differ from declaratory orders in their lack of reviewability and in their lack of binding effect in absence of an estoppel." Davis, Administrative Law Treatise, Vol I, § 4.09. A consideration of Ordinance 63 of the Village reveals that the decisions of the Architectural Advisory Committee are declaratory in nature, rather than advisory, and that they are binding upon the applicants and are also appealable.
*224 [2] In cases where the Committee determines that a permit shall be issued to an applicant, the matter is terminated at that point and the Village Board has no further authority in the matter. In cases where the Committee determines that an application should be disapproved, the Ordinance provides that "a building permit shall not be issued on the application except by express direction of the Village Board upon appeal...." (Emphasis by Court.) The Ordinance then provides that in the event of "a denial of a building permit by reason of the action of the Architectural Advisory Committee, the applicant shall have the right to appeal the action directly to the Village Board." Although the denial of a building permit by the Building Commissioner must be referred to the Architectural Advisory Committee, the appeal or referral to the Village Board of the Committee's action is not mandatory and the Committee's disapproval of the application, with the resultant denial of the issuance of a building permit, stands as final as to the applicant, unless he affirmatively acts to overturn the Committee's determination by appeal to the Village Board. Furthermore, in order to successfully overturn the Committee's adverse determination, the applicant is required to secure the approval of two-thirds of the members of the Village Board. The function of the Architectural Advisory Committee, and that of the Building Commissioner as well, is declaratory rather than advisory, and the rules applicable to the delegation of legislative powers to administrative bodies are applicable here.
The cases cited by the Village in support of its position apply to bodies acting in an advisory rather than in a declaratory capacity, which is not the case here. See Village of Justice v. Jamieson, 7 Ill. App.2d 113, 129 NE2d 269, where, under the empowering ordinance, the County Zoning Board was sitting in a purely advisory capacity, the court held that the constitutional standards otherwise applicable to administrative hearings did not have *225 to be complied with. See also Petterson v. City of Naperville, 9 Ill.2d 233, 137 NE2d 371, where the advisory commission's action, as required by the empowering ordinance, had to be submitted to the proper legislative body for a final determination; as pointed out above, no such mandatory appeal or referral to the Village Board from the decisions of the Architectural Advisory Committee is embodied in Ordinance 63.
The question arises whether Ordinance 63 sets forth adequate standards or guidelines to govern the action of the Architectural Advisory Committee (and the Building Commissioner as well) in determining whether a proposed construction or alteration is violative of the provisions of the Ordinance.
It cannot be disputed that the Ordinance gives the Committee wide discretion in determining which applications will be allowed and which will be disallowed. The power of the Committee itself to act is controlled by the initial action of the Building Commissioner. If the Commissioner initially determines that the application should be allowed and the permit issued, no occasion is presented for action on the part of the Committee. Where, however, the Commissioner "believes" that the proposed construction or alteration "may" cause "one or more harmful effects" envisioned by the broad standards set forth in subsection E(i) and (ii) of section 1 of the Ordinance, he shall refer the application to the Architectural Advisory Committee. Only when "any members" of the Committee likewise "believe" that the proposed construction or alteration "may" have such harmful effect or effects does the authority of the Committee as a whole to act in the matter arise.
[3] If the Committee, applying the same standards as hereinabove set forth, determines by majority vote that the application shall be allowed, then the Building Commissioner "shall" issue the building permit as directed by the Committee. If the Committee determines *226 that the application shall not be allowed, then the applicant's only recourse is to appeal to the Village Board and attempt to secure a favorable vote of two-thirds majority of the members of the Board. It is clear that Ordinance 63 fails to prescribe adequate standards to control the actions of the Architectural Advisory Committee in determining whether or not an application shall be approved or disapproved, and confers too broad a discretion on the Committee in this regard. City of Sullivan v. Cloe, 277 Ill. 56, 61-62, 115 NE 135.
The cases cited by the Village for the proposition that an ordinance need not prescribe precise standards to control decisions made by local legislative bodies are not in point. The standards set out in Ordinance 63 should have been designed to control decisions made by an administrative body, and not a legislative body, as demonstrated above. See Kotrich v. County of DuPage, 19 Ill.2d 181, 166 NE2d 601; Brown v. County of Lake, 67 Ill. App.2d 144, 213 NE2d 790.
The Village cites architectural control ordinances enacted by several other municipalities in this State, none of which have been subjected to a judicial determination as to their validity. In light of the view we take of Ordinance 63 of the Village of Olympia Fields, it is unnecessary to consider the matters raised in the briefs of the parties with respect to the purpose and validity of architectural control ordinances generally.
For these reasons the decree is affirmed.
Decree affirmed.
LYONS and McNAMARA, JJ., concur.
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978 So.2d 1053 (2008)
MELANCON EQUIPMENT, INC.
v.
NATIONAL RENTAL CO., LTD.
No. 2007-1008.
Court of Appeal of Louisiana, Third Circuit.
February 27, 2008.
Rehearing Denied April 16, 2008.
*1055 Robert E. Fruge, Grand Couteau, LA, for Plaintiff/Appellee, Melancon Equipment, Inc.
Paul Gonsoulin Moresi, III, Abbeville, LA, for Third-Party/Appellee, Mark Goodyear.
Christopher Joseph Piasecki, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defendant/Appellant, National Rental Co., Ltd.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
THIBODEAUX, Chief Judge.
Defendant, National Rental Company, Ltd. (National Rental) appeals the trial court's judgment which awards attorney fees and costs, both with interest, to the plaintiff, Melancon Equipment, Inc. (Melancon), as a result of unpaid services on an open account. National Rental contends that the trial court judge erred because, by virtue of the lease agreement entered into by Mark Goodyear (Mr. Goodyear), the third party defendant in the main demand, and National Rental, Mr. Goodyear is the proper party to hold liable for Melancon's attorney fees and court costs.
For the following reasons, we amend and affirm as amended the trial court's judgment.
I.
ISSUE
We shall consider whether the trial court erred in assessing all attorney fees and court costs, both with legal interest, against National Rental, as opposed to Mr. Goodyear, the third party defendant.
II.
FACTS
National Rental leased a John Deere tractor to Mr. Goodyear, the third party defendant, pursuant to a lease agreement. The tractor was damaged while in Mr. Goodyear's possession. As a result thereof, National Rental took the tractor to Melancon, a mechanical work supplier, for an estimate for all necessary repairs. National Rental and Melancon had a business relationship which was predominantly based upon an open account.
Melancon made the estimate and, upon its receipt, National Rental allegedly authorized Melancon to carry out such repairs. Melancon performed the repairs on the tractor, but National Rental never tendered payment. Thus, Melancon sent National Rental a demand letter by registered mail to no avail. National Rental refused to pay for the repairs, maintaining that Mr. Goodyear was the party responsible for the outstanding debt because it was him who authorized the repairs, thereby becoming Melancon's customer.
As a result of National Rental's refusal to pay the debt, Melancon instituted the main lawsuit against National Rental, claiming that it owed Melancon the sum of $2,418.62 on open account for the mechanical work performed on the tractor, in addition to reasonable attorney fees for the collection of its claim. Subsequently, National Rental filed a third party demand against Mr. Goodyear.
At trial, the judge ruled against National Rental and awarded Melancon $2,418.62 for the outstanding debt on open account, in addition to attorneys fees in the amount of $3,637.50, and court costs. With regards to the third party demand, the trial judge ruled against Mr. Goodyear, awarding National Rental $1,963.62, *1056 which constituted the cost of the repairs after deducting $455.00 for National Rental's failure to mitigate damages. At trial, it was established that had National Rental performed the repairs in house, it would have saved $455.00 off Melancon's quoted price. Mr. Goodyear, however, was not ordered to pay attorney fees and costs on the third party demand of National.
III.
LAW AND DISCUSSION
Standard of Review
"In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety." Cencac v. Public Access Water Rights Association, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006, 1023 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). "In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Tidwell v. Premier Staffing, Inc., 05-500, p. 2 (La.App. 3 Cir. 2/1/06), 921 So.2d 1194, 1196 (citations omitted). Therefore, appellate courts may only reverse factual determinations if they find from the record that (1) no reasonable basis exists for the finding and (2) the finding is clearly wrong or manifestly erroneous. Stobart v. State, Through Dep't of Transp. & Dev., 617 So.2d 880 (La.1993). Likewise, the court of appeal may not reverse, even if convinced that had it been sitting as a trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Accordingly, we will review the record in its entirety to determine whether the trial court's factual findings were reasonable, considering the evidence presented.
A.
Did the Trial Court Err in Assessing All Attorney Fees and Court Costs Against National Rental?
None of the parties is contesting the validity of the judgment whereby National Rental is compelled to pay Melancon $2,418.62 for the unpaid debt on open account. Rather, National Rental is challenging the validity of the judgment wherein it assesses Melancon's attorney fees and court costs against it. Specifically, National Rental argues that the trial judge committed error because, pursuant to the Lease Agreement entered into by National Rental and Mr. Goodyear, the latter is responsible for indemnifying National Rental for "any and all claims, actions, expenses, damages, and liabilities." In support of this argument, National Rental cites sections 13 and 15 of the lease agreement.
In response to National Rental's argument on appeal, Mr. Goodyear asserts that he should not be held liable for Melancon's attorney fees because "the Third Party Demand did not include a claim for attorney fees under the rental contract, and counsel for National Rental stated at the beginning of trial that his law firm was not charging a legal fee and that it was not being sought in the Third Party Demand." Furthermore, Mr. Goodyear argues that "the Third Party Demand does not contain any language which suggests that Goodyear is responsible to National Rental under the rental contract or under general Louisiana lease law. As such, National Rental is not entitled to recover anything more from Goodyear other than the *1057 amount awarded by the trial court." We disagree.
It is settled law that "[a]greements have the effect of law between the parties, and the courts are bound to give effect to all such contracts according to the true intent of the parties." Green v. TACA Intern. Airlines, 304 So.2d 357, 361 (La. 1974). Thus, the lease agreement entered into by National Rental and Mr. Goodyear governs the disposition of this dispute. Section 13 of the agreement categorically addresses the issue of attorney fees and court costs under the factual circumstances of this case.
With regard to attorneys fees, Section 13, in pertinent part, states as follows:
Section 13: ". . . in addition, Lessee shall pay Lessor all costs and expenses incurred by Lessor in exercising any of its rights or remedies hereunder, including reasonable attorney's fees to be fixed at not less than 25% of the amount in default of $250.00, which ever is more."
This section clearly and unequivocally stipulates that Mr. Goodyear is to be held liable for attorneys fees for breach in an amount of 25% of the amount at issue, but no less than $250.00. Accordingly, National Rental is entitled to recover $490.90 in attorney fees from Mr. Goodyear, which constitutes 25% of the $1,963.62 awarded to Melancon on its Third Party Demand.
The fact that National Rental's Third Party Demand did not include a specific claim for attorney fees under the rental contract is irrelevant. Louisiana Code of Civil Procedure Article 862 states that:
"Except as provided in Article 1703,[1] a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such a relief in his pleadings and the latter contain no prayer for general and equitable relief."
See also Pottinger v. New Orleans Heating & Cooling Specialists, Inc., et al., 06-701 (La.App. 5 Cir. 1/30/07), 951 So.2d 1224, 1226.
[T]he thrust of . . . [article 862] `is to permit courts to render substantive justice on basis of facts pleaded and to refuse to permit a denial of substantive rights (where the party has timely filed pleadings alleging the factual basis of his claim) because of technical defects of language or of some mechanical `theory of the case' characterization defeating a recovery otherwise allowable under facts pleaded . . .' (citations omitted). Jackson v. Zito, 314 So.2d 401, 404 (La.App. 1 Cir.), writ denied, 320 So.2d 551 (La. 1975).
Therefore, as long as the facts constituting the claim are alleged, a party may be granted any relief to which he is entitled under the pleadings and evidence. Western Dev. Group, Inc. v. Shlosman, 32-343 (La.App. 2 Cir. 9/22/99), 744 So.2d 197.
Likewise, National Rental is entitled to recover court costs associated with the Third Party Demand. Again, Section 13 of the lease agreement between Mr. Goodyear and National provides specifically that Lessee shall pay all costs incurred by Lessor in exercising any of its rights or remedies hereunder. . . ."
The court costs associated with the Third Party Demand fall squarely within the ambit of Section 13 because this liability *1058 is related to the leased equipment as it derives, albeit indirectly, from the mechanical work performed on the leased tractor.
It is clear from the record that the lease agreement entered into by National Rental and Mr. Goodyear is the governing document between both parties. The lease agreement and the third party demand, taken as a whole, contain sufficient factual allegations to afford fair notice to Mr. Goodyear of the relief sought by National Rental. For these reasons, we affirm the trial court judgment, but amend it to hold Mr. Goodyear liable to National Rental for Melancon's attorney's fees in the amount of $490.90, as well as for the court costs incurred by National Rental as a result of the Third Party Demand filed by National.
IV.
CONCLUSION
For the foregoing reasons, we amend and, as amended, affirm the judgment of the trial court.
AMENDED AND, AS AMENDED, AFFIRMED.
NOTES
[1] Art. 1703. Scope of Judgment
A judgment by default shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy.
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942 F.2d 791
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.George M. HARVEY, Plaintiff-Appellant,v.NOVO COMMUNICATIONS, INC., dba Bonded Services and theHartford Insurance Group, Defendants-Appellees.
No. 90-56327.
United States Court of Appeals, Ninth Circuit.
Submitted July 11, 1991.*Decided Aug. 21, 1991.
1
Before REINHARDT and FERNANDEZ, Circuit Judges, and CROCKER,** District Judge.
2
MEMORANDUM***
3
George M. Harvey appeals pro se the district court's dismissal of his case pursuant to Fed.R.Civ.P. 41(b). This court reviews the district court's findings of fact for clear error, and its legal conclusions de novo when reviewing a dismissal under Rule 41(b). Sepulveda v. Pacific Maritime Assn., 878 F.2d 1137, 1139 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 561 (1989).
4
Harvey argues that the district court erred in dismissing the case for failure to prove the facts necessary to support his claims for relief under ERISA (29 U.S.C. § 1132), and the specific provisions for continuation health care coverage under group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA) (29 U.S.C. § 1161, et seq.). We disagree. The district court did not err in deciding to dismiss the action at the conclusion of Harvey's case.
5
Harvey contends that the district court's findings of fact are erroneous because the court failed to consider certain information which had been improperly ruled irrelevant. Harvey further relies upon certain exhibits included in his excerpts of record that were not part of the record at trial. Insofar as appellant relies upon evidence not presented at trial, having failed to present this evidence to the district court, Harvey may not now urge in this court that the district court erred in failing to consider that evidence. Andersen v. Cumming, 827 F.2d 1303, 1305 (9th Cir.1987); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1351 (9th Cir.1987).
6
Harvey also argues that the district court erred when it ruled that certain testimony with regard to continuation health care premiums for COBRA coverage for another employee were irrelevant. Harvey argues that this evidence was relevant to show Bonded discriminated against him with regard to his COBRA coverage. We review district court rulings on evidentiary questions for abuse of discretion. Churchill v. F/V Fjord, 892 F.2d 763, 771 (9th Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 3273 (1990). The court allowed Harvey to explain the relevancy of the evidence he was attempting to elicit from the witness. After the explanation proffered by Harvey, the court again sustained the objection. The court properly excluded the evidence as it was clearly not relevant to the issues being tried, that is, whether Harvey received proper written notice of his COBRA right to continuation health coverage, and made timely election and payments for such coverage. Thus, the court did not abuse its discretion in excluding the evidence.
7
Appellees seek attorneys' fees and other relief pursuant to Fed.R.App.P. 38 on the grounds that the appeal is frivolous. "An appeal is frivolous when the result is obvious or the appellant's arguments are wholly without merit. Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1288 (9th Cir.1984)." Smith v. C.I.R., 800 F.2d 930, 934 (9th Cir.1986). The court declines to assess the sanctions sought against this pro se appellant because appellant appears to have put forth what to him were plausible and good faith, albeit incorrect, arguments supporting his appeal.
8
The judgment of the district court is AFFIRMED. Appellees' motions for sanctions are DENIED.
*
The panel unanimously finds this case suitable for disposition without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 343(a)
**
Honorable Myron D. Crocker, United States District Judge, Eastern District of California, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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252 S.E.2d 526 (1979)
40 N.C. App. 158
Richard Edwin HEATH
v.
SWIFT WINGS, INC., the Bank of Virginia Trust Company, Frank W. Kish, Richard H. Kish and Kermit Rockett.
No. 7824SC367.
Court of Appeals of North Carolina.
March 6, 1979.
*528 Adams & Jenkins by W. Thad Adams, III, Charlotte, for plaintiff-appellant.
Smith, Anderson, Blount & Mitchell by James G. Billings, Raleigh, for defendants-appellees.
*529 MORRIS, Chief Judge.
Plaintiff has brought forward on appeal 15 assignments of error directed to 26 exceptions to rulings and instructions of the trial court. We direct our inquiry to a very limited number of assignments of error which identify substantial errors of law sufficiently prejudicial to the plaintiff to require a new trial of this matter. We will not address the remaining assignments of error because of the probability that the same errors, if any, will not recur upon retrial of the cause.
Assignment of error No. 4 is directed to the trial court's charge concerning the definition of negligence and the applicable standard of care:
"Negligence, ladies and gentlemen of the jury, is the failure of someone to act as a reasonably and careful and prudent person would under the same or similar circumstances. Obviously, this could be the doing of something or the failure to do something, depending on the circumstances. With respect to aviation negligence could be more specifically defined as the failure to exercise that degree of ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances."
It is a familiar rule of law that the standard of care required of an individual, unless altered by statute, is the conduct of the reasonably prudent man under the same or similar circumstances. See Williams v. Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977); Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132 (1964). While the standard of care of the reasonably prudent man remains constant, the quantity or degree of care required varies significantly with the attendant circumstances. Pinyan v. Settle, 263 N.C. 578, 139 S.E.2d 863 (1965); Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E.2d 281 (1963).
The trial court improperly introduced a subjective standard of care into the definition of negligence by referring to the "ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances." (Emphasis added.) We are aware of the authorities which support the application of a greater standard of care than that of the ordinary prudent man for persons shown to possess special skill in a particular endeavor. See generally Prosser, Law of Torts (4th ed.) § 32. Indeed, our courts have long recognized that one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. See e. g., Insurance Co. v. Sprinkler Co., 266 N.C. 134, 146 S.E.2d 53 (1966) (fire sprinkler contractor); Service Co. v. Sales Co., 261 N.C. 660, 136 S.E.2d 56 (1964) (industrial designer); Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (1955) (physician); Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954) (attorney). Furthermore, the specialist within a profession may be held to a standard of care greater than that required of the general practitioner. See generally Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440 (1973). Nevertheless, the professional standard remains an objective standard. For example, the recognized standard for a physician is established as "the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice." Dickens v. Everhart, 284 N.C. at 101, 199 S.E.2d at 443.
Such objective standards avoid the evil of imposing a different standard of care upon each individual. The instructions in this case concerning the pilot's standard of care are misleading at best, and a misapplication of the law. They permit the jury to consider Fred Heath's own particular experience and training, whether outstanding or inferior, in determining the requisite standard of conduct, rather than applying a minimum standard generally applicable to all pilots. The plaintiff is entitled to an instruction holding Fred Heath to the objective minimum standard of care applicable to all pilots.
*530 Plaintiff assigns error to a portion of the trial court's summary of the defendant's evidence as elicited during cross-examination. Plaintiff excepts to the following statement by the court:
"That the ignition was on one of the magetos which would indicate that the pilot, having encountered difficulty, had switched from both, which is an emergency procedure; . . ."
Plaintiff contends that the evidence did not reasonably support the trial court's statement that the pilot had initiated an emergency procedure. Defendants argue that the court drew a reasonable inference from the evidence. It is conceded by defendants that there was no testimony precisely stating that switching magnetos is an "emergency procedure".
It is fundamental in this State that the trial court may not submit for the consideration of the jury facts material to the issue of negligence not fully supported by the evidence. Dove v. Cain, 267 N.C. 645, 148 S.E.2d 611 (1966). The issue of whether the pilot of the Piper 180 Arrow was in fact confronted with an "emergency" due to engine malfunction is a crucial element of the case. Testimony that a pilot is taught to switch magnetos when the aircraft is experiencing engine roughness is, under the facts of this case, insufficient evidence in this record to support the court's charge which intimated that switching magnetos constitutes per se an emergency procedure. Moreover, there is no evidence to suggest that engine roughness presents an emergency situation when proper safety factors are taken into consideration prior to an attempted takeoff.
Plaintiff also assigns error to the following portion of the court's summary of the contentions of the parties:
"[T]hat the plaintiff would have Fred Heath adhere to a perfect exact standard whereas the standard is that of the ordinary prudent pilot; . . ."
Such a statement may appear to the jury as an indication of the trial court's opinion with respect to the merits of plaintiff's lawsuit. It is clear from the pleadings that the plaintiff is proceeding only on the theory of a failure to exercise the due care required of the ordinary prudent pilot. There is no basis for the trial court's statement that plaintiff insists on a perfect standard as opposed to a reasonable standard. This Court has held that when the manner of stating the contentions of the parties is indicative of the court's opinion on the case, the charge is violative of G.S. 1-180. Voorhees v. Guthrie, 9 N.C.App. 266, 175 S.E.2d 614 (1970). G.S. 1-180 is now embodied in substance within G.S. 1A-1, Rule 51(a). Little v. Poole, 11 N.C.App. 597, 182 S.E.2d 206 (1971). Furthermore, exceptions to an expression of opinion within the context of the summary of the contentions of the parties may be raised for the first time on appeal. Voorhees v. Guthrie, supra; State v. Powell, 6 N.C.App. 8, 169 S.E.2d 210 (1969).
This matter was well tried by both counsel for plaintiff and counsel for defendants, and several days were consumed in its trial. Nevertheless, for prejudicial errors in the charge, there must be a
New trial.
HARRY C. MARTIN and CARLTON, JJ., concur.
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127 S.Ct. 2301 (2007)
Lisa WATSON, et al., Petitioners,
v.
PHILIP MORRIS COMPANIES, INC., et al.
No. 05-1284.
Supreme Court of United States.
Argued April 25, 2007.
Decided June 11, 2007.
*2303 David C. Frederick, Washington, D.C., for petitioners.
Irving G. Gornstein, for United States as amicus curiae, by special leave of Court, supporting petitioners.
Theodore B. Olson, Washington, D.C., for respondents.
Steven Eugene Cauley, James Allen Carney, Marcus N. Bozeman, Cauley, Bowman, Carney & Williams, PLLC, Little Rock, Arkansas, David C. Frederick, Counsel of Record, Mark L. Evans, Kelly P. Dunbar, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., for Petitioners.
Murray R. Garnick, James M. Rosenthal, Arnold & Porter LLP, Washington, D.C., Kenneth S. Geller, Mayer, Brown, Rowe & Maw LLP, Washington, D.C., Theodore B. Olson, Counsel of Record, Mark A. Perry, Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Respondents.
Justice BREYER delivered the opinion of the Court.
The federal officer removal statute permits a defendant to remove to federal court a state-court action brought against the
"United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of *2304 any agency thereof, sued in an official or individual capacity for any act under color of such office ...." 28 U.S.C. § 1442(a)(1) (emphasis added).
The question before us is whether the fact that a federal regulatory agency directs, supervises, and monitors a company's activities in considerable detail brings that company within the scope of the italicized language ("acting under" an "officer" of the United States) and thereby permits removal. We hold that it does not.
I
Lisa Watson and Loretta Lawson, the petitioners, filed a civil lawsuit in Arkansas state court claiming that the Philip Morris Companies, the respondents, violated state laws prohibiting unfair and deceptive business practices. The complaint focuses upon advertisements and packaging that describe certain Philip Morris brand cigarettes (Marlboro and Cambridge Lights) as "light," a term indicating lower tar and nicotine levels than those present in other cigarettes. More specifically, the complaint refers to the design and performance of Philip Morris cigarettes that are tested in accordance with the Cambridge Filter Method, a method that "the tobacco industry [uses] to `measure' tar and nicotine levels in cigarettes." App. to Pet. for Cert. 63a-64a. The complaint charges that Philip Morris "manipulat[ed] the design" of its cigarettes, and "employ[ed] techniques that" would cause its cigarettes "to register lower levels of tar and nicotine on [the Cambridge Filter Method] than would be delivered to the consumers of the product." Id., at 63a-65a. The complaint adds that the Philip Morris cigarettes delivered "greater amounts of tar and nicotine when smoked under actual conditions" than the adjective "light" as used in its advertising indicates. Id., at 65a. In view of these and other related practices, the complaint concludes that Philip Morris' behavior was "deceptive and misleading" under Arkansas law. Id., at 64a, 66a.
Philip Morris, referring to the federal officer removal statute, removed the case to Federal District Court. That court, in turn, held that the statute authorized the removal. The court wrote that the complaint attacked Philip Morris' use of the Government's method of testing cigarettes. For this reason (and others), it held that the petitioners had sued Philip Morris for "act[s]" taken "under" the Federal Trade Commission, a federal agency (staffed by federal "officer[s]").
The District Court certified the question for interlocutory review. And the United States Court of Appeals for the Eighth Circuit affirmed. Like the District Court, it emphasized the FTC's detailed supervision of the cigarette testing process. It also cited lower court cases permitting removal by heavily supervised Government contractors. See 420 F.3d 852, 857 (2005); Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (C.A.5 1998) (authorizing removal of a tort suit against private defense contractors that manufactured Agent Orange). The Eighth Circuit concluded that Philip Morris was "acting under" federal "officer[s]," namely the FTC, with respect to the challenged conduct. 420 F.3d, at 854.
We granted certiorari. 549 U.S. ___, 127 S.Ct. 1055, 166 L.Ed.2d 797 (2007). And we now reverse the Eighth Circuit's determination.
II
The federal statute permits removal only if Philip Morris, in carrying out the "act[s]" that are the subject of the petitioners' complaint, was "acting under" any "agency" or "officer" of "the United States." 28 U.S.C. § 1442(a)(1). The words "acting under" are broad, and this *2305 Court has made clear that the statute must be "liberally construed." Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 76 L.Ed. 1253 (1932); see Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981); Willingham v. Morgan, 395 U.S. 402, 406-407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). But broad language is not limitless. And a liberal construction nonetheless can find limits in a text's language, context, history, and purposes.
Beginning with history, we note that Congress enacted the original federal officer removal statute near the end of the War of 1812, a war that was not popular in New England. See id., at 405, 89 S.Ct. 1813. Indeed, shipowners from that region filed many state-court claims against federal customs officials charged with enforcing a trade embargo with England. See Wiecek, The Reconstruction of Federal Judicial Power, 1863-1875, 13 Am. J. Legal Hist. 333, 337 (1969). Congress responded with a provision that permitted federal customs officers and "any other person aiding or assisting" those officers to remove a case filed against them "in any state court" to federal court. Customs Act of 1815, ch. 31, § 8, 3 Stat. 198 (emphasis added). This initial removal statute was "[o]bviously ... an attempt to protect federal officers from interference by hostile state courts." Willingham, 395 U.S., at 405, 89 S.Ct. 1813.
In the early 1830's, South Carolina passed a Nullification Act declaring federal tariff laws unconstitutional and authorizing prosecution of the federal agents who collected the tariffs. See ibid. Congress then enacted a new statute that permitted "any officer of the United States, or other person" to remove to federal court a lawsuit filed against the officer "for or on account of any act done under the revenue laws of the United States." Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633 (emphasis added). As Senator Daniel Webster explained at the time, where state courts might prove hostile to federal law, and hence to those who enforced that law, the removal statute would "give a chance to the [federal] officer to defend himself where the authority of the law was recognised." 9 Cong. Deb. 461 (1833).
Soon after the Civil War, Congress enacted yet another officer removal statute, permitting removal of a suit against any revenue officer "on account of any act done under color of his office" by the revenue officer and "any person acting under or by authority of any such officer." Act of July 13, 1866, ch. 184, § 67, 14 Stat. 171 (emphasis added). Elsewhere the statute restricted these latter persons to those engaged in acts "for the collection of taxes." § 67, id., at 172.
In 1948, Congress again revised the statute, dropping its limitation to the revenue context. And it included the rewritten statute within its 1948 recodification. See Act of June 25, 1948, ch. 646, § 1442(a), 62 Stat. 938, 28 U.S.C. § 1442(a). It is this version of the statute that, with the exception of a modification in response to this Court's decision in International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U.S. 72, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991), is now before us. While Congress expanded the statute's coverage to include all federal officers, it nowhere indicated any intent to change the scope of words, such as "acting under," that described the triggering relationship between a private entity and a federal officer.
Turning to precedent, we point to three cases, all involving illegal liquor, which help to illustrate the need for, and the workings of, the pre-1948 removal statutes. In 1878, a federal revenue officer, James Davis, raided an illegal distillery in *2306 Tennessee; was ambushed by several armed men; returned the ambushers' gunfire; and shot one of his attackers dead. See Tennessee v. Davis, 100 U.S. 257, 261, 25 L.Ed. 648 (1880). Tennessee indicted Davis for murder. The Court held that the statute permitted Davis to remove the case to federal court, reasoning that the Federal Government "can act only through its officers and agents, and they must act within the States." Id., at 263. Removal, the Court found, would help to prevent hostile States from "paralyz[ing]" the Federal Government and its initiatives. Ibid.
About the same time, a U.S. Army corporal (also called Davis, Lemuel Davis) along with several other soldiers helped a federal revenue officer try to arrest a distiller for violating the internal-revenue laws. The soldiers surrounded the house; the distiller escaped through a hole in a side wall; Corporal Davis shot the suspect; and South Carolina indicted Davis for murder. Davis removed the case, and this Court upheld the removal. The Court acknowledged that, although Davis was not a revenue officer, he was a person "who lawfully assist[ed]" a revenue officer "in the performance of his official duty." Davis v. South Carolina, 107 U.S. 597, 600, 2 S.Ct. 636, 27 L.Ed. 574 (1883).
In the 1920's, Maryland charged a group of prohibition agents and a private person acting as their driver with a murder committed during a distillery raid. See Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926). The prohibition agents and their driver sought to remove the state murder trial to federal court. This Court ultimately rejected their removal efforts for reasons not relevant here. But in doing so it pointed out that the private person acting "as a chauffeur and helper to the four officers under their orders and... direction" had "the same right to the benefit of" the removal provision as did the federal agents. Id., at 30, 46 S.Ct. 185.
Apart from demonstrating the dangers associated with working in the illegal alcohol business, these three casesTennessee v. Davis, Davis v. South Carolina, and Maryland v. Soperillustrate that the removal statute's "basic" purpose is to protect the Federal Government from the interference with its "operations" that would ensue were a State able, for example, to "arres[t]" and bring "to trial in a State cour[t] for an alleged offense against the law of the State," "officers and agents" of the Federal Government "acting ... within the scope of their authority." Willingham, 395 U.S., at 406, 89 S.Ct. 1813 (internal quotation marks omitted). See also ibid. (noting that the "purpose" of the statute "is not hard to discern"). State-court proceedings may reflect "local prejudice" against unpopular federal laws or federal officials. Soper, supra, at 32, 46 S.Ct. 185; see Manypenny, 451 U.S., at 242, 101 S.Ct. 1657 (noting that removal permits trials to occur free from "local ... prejudice"). In addition, States hostile to the Federal Government may impede through delay federal revenue collection or the enforcement of other federal law. See Tennessee v. Davis, supra, at 263; cf. Findley v. Satterfield, 9 F. Cas. 67, 68 (No. 4,792) (CC ND Ga. 1877). And States may deprive federal officials of a federal forum in which to assert federal immunity defenses. See International Primate Protection League, supra, at 86-87, 111 S.Ct. 1700; Willingham, supra, at 407, 89 S.Ct. 1813 ("[O]ne of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court"); Jefferson County v. Acker, 527 U.S. 423, 447, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (SCALIA, J., concurring in part and dissenting in part) (noting that "the main point" of the federal officer *2307 removal statute "is to give officers a federal forum in which to litigate the merits of immunity defenses").
Where a private person acts as an assistant to a federal official in helping that official to enforce federal law, some of these same considerations may apply. Regardless, in Davis v. South Carolina the Court wrote that the removal statute applies to private persons "who lawfully assist" the federal officer "in the performance of his official duty." 107 U.S., at 600, 2 S.Ct. 636. And in City of Greenwood v. Peacock, 384 U.S. 808, 824, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), in interpreting a related removal provision, the Court repeated that the statute authorized removal by private parties "only" if they were "authorized to act with or for [federal officers or agents] in affirmatively executing duties under ... federal law." All the Court's relevant post-1948 federal officer removal cases that we have found reflect or are consistent with this Court's pre-1948 views. See Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989); Manypenny, supra; Willingham, supra; Peacock, supra.
III
With this history and precedent in mind, we return to the statute's language. The relevant relationship is that of a private person "acting under" a federal "officer" or "agency." 28 U.S.C. § 1442(a)(1) (emphasis added). In this context, the word "under" must refer to what has been described as a relationship that involves "acting in a certain capacity, considered in relation to one holding a superior position or office." 18 Oxford English Dictionary 948 (2d ed.1989). That relationship typically involves "subjection, guidance, or control." Webster's New International Dictionary 2765 (2d ed.1953). See also Funk & Wagnalls New Standard Dictionary of the English Language 2604 (1942) (defining "under" as meaning "[s]ubordinate or subservient to," "[s]ubject to guidance, tutorship, or direction of"); 18 Oxford English Dictionary, supra, at 949 ("[s]ubject to the instruction, direction, or guidance of"). In addition, precedent and statutory purpose make clear that the private person's "acting under" must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior. See, e.g., Davis v. South Carolina, supra, at 600, 2 S.Ct. 636; see also supra, at 2305-2307.
In our view, the help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law. We recognize that sometimes an English speaker might say that one who complies with the law "helps" or "assists" governmental law enforcement. Taxpayers who fill out complex federal tax forms, airline passengers who obey federal regulations prohibiting smoking, for that matter well-behaved federal prisoners, all "help" or "assist" federal law enforcement authorities in some sense of those words. But that is not the sense of "help" or "assist" that can bring a private action within the scope of this statute. That is in part a matter of language. One would usually describe the behavior of the taxpayers, airline passengers, and prisoners we have described as compliance with the law (or acquiescence to an order), not as "acting under" a federal official who is giving an order or enforcing the law. It is also in part a matter of the history and the precedent we have discussed. See supra, at 2304-2307.
Finally, it is a matter of statutory purpose. When a company subject to a regulatory order (even a highly complex order) complies with the order, it does not ordinarily create a significant risk of state-court "prejudice." Cf. Soper, 270 U.S., at *2308 32, 46 S.Ct. 185; Manypenny, supra, at 241-242, 101 S.Ct. 1657. Nor is a state-court lawsuit brought against such a company likely to disable federal officials from taking necessary action designed to enforce federal law. Cf. Tennessee v. Davis, 100 U.S., at 262-263. Nor is such a lawsuit likely to deny a federal forum to an individual entitled to assert a federal claim of immunity. See, e.g., Willingham, 395 U.S., at 407, 89 S.Ct. 1813.
The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase "acting under" a federal "official." And that is so even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored. A contrary determination would expand the scope of the statute considerably, potentially bringing within its scope state-court actions filed against private firms in many highly regulated industries. See, e.g., Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136a (2000 ed. and Supp. IV) (mandating disclosure of testing results in the context of pesticide registration). Neither language, nor history, nor purpose lead us to believe that Congress intended any such expansion.
IV
Philip Morris advances two important arguments to the contrary. First, it points out that lower courts have held that Government contractors fall within the terms of the federal officer removal statute, at least when the relationship between the contractor and the Government is an unusually close one involving detailed regulation, monitoring, or supervision. See, e.g., Winters, 149 F.3d 387. And it asks why, if close supervision is sufficient to turn a private contractor into a private firm "acting under" a Government "agency" or "officer," does it not do the same when a company is subjected to intense regulation.
The answer to this question lies in the fact that the private contractor in such cases is helping the Government to produce an item that it needs. The assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps officers fulfill other basic governmental tasks. In the context of Winters, for example, Dow Chemical fulfilled the terms of a contractual agreement by providing the Government with a product that it used to help conduct a war. Moreover, at least arguably, Dow performed a job that, in the absence of a contract with a private firm, the Government itself would have had to perform.
These circumstances distinguish Winters from this case. For present purposes that distinction is sufficient. And we need not further examine here (a case where private contracting is not at issue) whether and when particular circumstances may enable private contractors to invoke the statute.
Second, Philip Morris argues that its activities at issue here did not consist simply of compliance with regulatory laws, rules, and orders. It contends that the FTC, after initially testing cigarettes for tar and nicotine, "delegated authority" for that task to an industry-financed testing laboratory in 1987. E.g., Brief for Respondents 31 (emphasis added). And Philip Morris asserts that (along with other cigarette companies) it was acting pursuant to that delegation. It adds that ever since this initial "delegation" the FTC has "extensive[ly]... supervis[ed]" and "closely monitored" the manner in which the laboratory tests cigarettes. Id., at 37, 30, 39. Philip Morris concludes that, given all *2309 these circumstances, just as Dow was "acting under" officers of the Department of Defense when it manufactured Agent Orange, see Winters, supra, at 399, so Philip Morris is "acting under" officers of the FTC when it conducts cigarette testing. See Brief for Respondents 38.
For argument's sake we shall overlook the fact that the petitioners appear to challenge the way in which Philip Morris "designed" its cigarettes, not the way in which it (or the industry laboratory) conducted cigarette testing. We also shall assume the following testing-related facts that Philip Morris sets forth in its brief:
(1) In the 1950's, the FTC ordered tobacco companies to stop advertising the amount of tar and nicotine contained in their cigarettes. See id., at 3.
(2) In 1966, the FTC altered course. It permitted cigarette companies to advertise "tar and nicotine yields" provided that the company had substantiated its statement through use of the Cambridge Filter Method, a testing method developed by Dr. Clyde Ogg, a Department of Agriculture employee. Id., at 4-5.
(3) The Cambridge Filter Method uses "a smoking machine that takes a 35 milliliter puff of two seconds' duration on a cigarette every 60 seconds until the cigarette is smoked to a specified butt length." FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 37 (C.A.D.C. 1985). It then measures the amount of tar and nicotine that is delivered. That data, in turn, determine whether a cigarette may be labeled as "light." This method, Dr. Ogg has testified, "will not tell a smoker how much tar and nicotine he will get from any given cigarette," but it "will indicate" whether a smoker "will get more from one than from another cigarette if there is a significant difference between the two and if he smokes the two in the same manner." Brief for Respondents 5-6 (internal quotation marks omitted).
(4) In 1967, the FTC began to use its own laboratory to perform these tests. See id., at 6. And the Cambridge Filter Method began to be referred to as "the `FTC Method.'" Id., at 4.
(5) The FTC published the testing results periodically and sent the results annually to Congress. See id., at 7.
(6) Due to cost considerations, the FTC stopped testing cigarettes for tar and nicotine in 1987. Simultaneously, the tobacco industry assumed responsibility for cigarette testing, running the tests according to FTC specifications and permitting the FTC to monitor the process closely. See ibid.
(7) The FTC continues to publish the testing results and to send them to Congress. See ibid.
(8) The tobacco industry has followed the FTC's requirement that cigarette manufacturers disclose (and make claims about) tar and nicotine content based exclusively on the results of this testing. See id., at 8-9.
Assuming this timeline, Philip Morris' argument nonetheless contains a fatal flawa flaw of omission. Although Philip Morris uses the word "delegation" or variations many times throughout its brief, we have found no evidence of any delegation of legal authority from the FTC to the industry association to undertake testing on the Government agency's behalf. Nor is there evidence of any contract, any payment, any employer/employee relationship, or any principal/agent arrangement.
We have examined all of the documents to which Philip Morris and certain supporting amici refer. Some of those documents refer to cigarette testing specifications, others refer to the FTC's inspection and supervision of the industry laboratory's *2310 testing, and still others refer to the FTC's prohibition of statements in cigarette advertising. But none of these documents establish the type of formal delegation that might authorize Philip Morris to remove the case.
Several former FTC officials, for example, filed an amicus brief in which they state that "[i]n 198[7] the FTC delegated testing responsibility to the private Tobacco Industry Testing Lab (the `TITL')." Brief for Former Commissioners and Senior Staff of the FTC 11. But in support of this proposition the brief cites a single source, a letter from the cigarette manufacturers' lawyer to an FTC official. That letter states:
"[M]ajor United States cigarette manufacturers, who are responsible for the TITL's operations and on whose behalf we are writing, do not believe that Commission oversight is needed .... Nevertheless, as an accommodation and in the spirit of cooperation, the manufacturers are prepared to permit Commission employees to monitor the TITL testing program ... ." Letter from John P. Rupp to Judith P. Wilkenfeld (June 30, 1987), online at http://tobaccodocuments. org/nysa_ti_s1/TI57900738.html (as visited June 7, 2007, and available in Clerk of Court's case file).
Nothing in this letter refers to a delegation of authority. And neither Congress nor federal agencies normally delegate legal authority to private entities without saying that they are doing so.
Without evidence of some such special relationship, Philip Morris' analogy to Government contracting breaks down. We are left with the FTC's detailed rules about advertising, specifications for testing, requirements about reporting results, and the like. This sounds to us like regulation, not delegation. If there is a difference between this kind of regulation and, say, that of Food and Drug Administration regulation of prescription drug marketing and advertising (which also involve testing requirements), see Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1316 (C.A.D.C. 1998), that difference is one of degree, not kind.
As we have pointed out, however, differences in the degree of regulatory detail or supervision cannot by themselves transform Philip Morris' regulatory compliance into the kind of assistance that might bring the FTC within the scope of the statutory phrase "acting under" a federal "officer." Supra, at 2307. And, though we find considerable regulatory detail and supervision, we can find nothing that warrants treating the FTC/Philip Morris relationship as distinct from the usual regulator/regulated relationship. This relationship, as we have explained, cannot be construed as bringing Philip Morris within the terms of the statute.
For these reasons, the judgment of the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4712
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAPRIA CHAPMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-03-20-HO)
Submitted: April 15, 2004 Decided: April 20, 2004
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant Shapria Chapman pled guilty to one count of
being a felon in possession of a firearm and one count of
possessing a firearm with an obliterated serial number, in
violation of 18 U.S.C. §§ 922(g)(1), 922(k) and 924 (2000). He was
sentenced to thirty months in prison.
Chapman’s appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967) raising two issues
regarding Chapman’s sentence: (1) whether the district court
properly increased his offense level by four because of the number
of firearms involved in Chapman’s conduct; and (2) whether the
district court erroneously enhanced Chapman’s offense level by two
for being a manager of criminal conduct. The Government has
elected not to file a brief. Chapman was notified of his right to
file a pro se supplemental brief and has not done so.
We have independently reviewed the entire record in this
case, including the issues raised by counsel, and, in accordance
with Anders, have found no meritorious issues for appeal. We
therefore affirm Chapman’s convictions and sentence. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
- 2 -
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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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443 P.2d 1013 (1968)
92 Idaho 416
AMERICAN MACHINE COMPANY, Plaintiff-Appellant,
v.
Jerry FITZPATRICK, dba Fitzpatrick Mechanical Repair, Defendant-Respondent.
No. 10089.
Supreme Court of Idaho.
July 10, 1968.
*1014 Hamilton & Hamilton, Coeur d'Alene, for plaintiff-appellant.
Sterling Williver, Sandpoint, for defendant-respondent.
McQUADE, Justice.
At all pertinent times, appellant, a machine company, owned a certain used TLDT ("log jammer") motor vehicle, serial number 3254 and a straight boom used in connection with the vehicle. Sometime before November 1964, appellant permitted a potential customer, Reuben W. Akre, to try out "in the field" the vehicle and its attached straight boom. How long Akre kept such possession is not shown by the record. During this try-out period, appellant did not file of record any documents evidencing its legal interest in the vehicle.
Sometime during November 1964, at the request of Akre or his foreman, respondent performed work on the vehicle and/or on its attached lift straight boom.[1] For purposes of our decision, it makes no difference whether respondent worked on the vehicle itself or on its attached boom; for convenience, we accept respondent's answer to an interrogatory stating that the work was performed on the vehicle itself. There is no controversy concerning the reasonable value of the repairs, which the district court found to be $220.94.
Apparently, respondent did not inquire concerning Akre's legal interest in the vehicle. By interrogatory, appellant asked respondent when and how Reuben Akre had "represent[ed] himself to be the owner"? Respondent answered: "he didn't say one way or another; he more or less acted like it was his machine. Stephen McNearney, *1015 his foreman, brought it to me to have work done on it." Appellant was not notified of the work before its completion.
Upon completion of the work, respondent released the vehicle to Akre, keeping as "collateral" the boom which it had detached from the vehicle. Shortly thereafter, Akre returned the vehicle (without the boom) to appellant. Akre did not pay respondent for the work and soon afterwards, Akre filed a petition in bankruptcy and was adjudicated a bankrupt. Respondent filed no claim against Akre's bankruptcy estate but Akre did list respondent as a debtor for the amount of the repair bill.
In this action by appellant for claim and delivery of the boom retained by respondent, respondent counterclaimed for the repair charges. The district court granted summary judgment on the counterclaim[2] in respondent's favor for $220.94.[3] In its findings, the court stated that appellant, who at all pertinent times owned the vehicle and equipment, placed the vehicle and equipment in the lawful possession of appellant's potential customer, Akre, and that "while Akre had legal possession he caused the machine to be delivered to the Defendant [respondent] for repairs and alterations," whereupon respondent did repair the vehicle. As a conclusion of law the court determined that I.C. § 45-806 "allows the legal possessor of personal property to create a lien upon that property by contracting for work done on the personal property of the owner." This is an appeal from the summary judgment.
At all times pertinent to this action, I.C. § 45-806 provided:
"45-806. Lien for making, altering, or repairing personal property. Any person, firm or corporation, who makes, alters or repairs any article of personal property, at the request of the owner or person in legal possession thereof, has a lien, which said lien shall be superior and prior to any security interest in the same for his reasonable charges for work done and materials furnished, and may retain possession of the same until the charges are paid. If not paid within two (2) months after the work is done, the person, firm or corporation may proceed to sell the property at public auction, by giving ten (10) days' public notice of the sale by advertising in some newspaper published in the county in which the work was done; or, if there be no newspaper published in the county, then by posting up notices of the sale in three (3) public places in the town where the work was done, for ten (10) days previous to the sale. The proceeds of the sale must be applied to the discharge of the lien and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof. Provided that the said person, firm or corporation who is about to make, alter or repair the said property, in order to derive the benefits of this section, must, before commencing said making, altering or repairing, give notice of the intention to so make, alter or repair said property, by registered mail, to any holder of a security interest which is of record in the county where said property is located, and, if a motor vehicle, to any holder of a security interest which may appear on the certificate of title of said vehicle, at least three (3) days before commencing said making, altering or repairing and if notice in writing within said three (3) days be not given by such holder of a security interest notifying said firm or corporation not to perform said services then the said making, altering or repairing *1016 may proceed and the prior lien provided for herein attaches to said property."[4]
Appellant relies on the proviso of I.C. § 45-806, contending that if the repairer of a motor vehicle to preserve his lien rights must give notice of intended repairs to the holder of a conditional sale contract or to a chattel mortgage, a fortiori one having full ownership rights should be accorded such notice protection.[5] Appellant further contends that if respondent did have a lien on the vehicle respondent lost such lien by voluntarily relinquishing possession of the vehicle.
Appellant also contends that the papers of record show two questions of material fact which would preclude entry of summary judgment. These questions allegedly arise from: (1) the conflict between respondent's cross-complaint and its answers to interrogatories concerning the item of machinery on which work was performed;[6] and, (2) the following answer of respondent to appellant's interrogatory asking how Reuben Akre had represented himself to be the owner: "When I talked to Reuben Akre, he didn't say one way or another; he more or less acted like it was his machine. Stephen McNearney, his foreman, brought it to me to have work done on it."
QUESTIONS OF FACT
To forestall a summary judgment, factual disputes must concern an issue of material fact.[7] But the questions of fact alleged by appellant are concerned with immaterial problems. Because I.C. § 45-806 speaks to legal possession, whether Akre represented himself as actual owner of the vehicle is beside the point; that he was in legal possession is not challenged. And it is of no consequence on the facts of this case that the repairs may have been on the vehicle itself or on the straight boom, or on both. In fact, under the quoted statute, I.C. § 45-806, appellant's position is stronger if we assume that the repairs were made to "a motor vehicle."
INTERPRETATION OF I.C. § 45-806
Notation of lien or encumbrance on a certificate of title is in Idaho the exclusive method for protection of a security interest on a motor vehicle.[8] Insofar as here pertinent, the lien priority protection of I.C. § 45-806 as against another person whom the certificate of title indicates as holding a pre-existing conditional sale contract or title retaining note[9] depends wholly upon notification to such secured person of the proposed repairs prior to their commencement. As owner of the vehicle, appellant of course did not hold on it a conditional sale contract or title retention note or any other security interest. Thus, appellant is not within the express statutory coverage. But appellant contends that it would be illogical to interpret the statute as refusing protection to an outright owner while protecting one with only conditional *1017 ownership under a security agreement. We do not agree.
The statute is not unambiguous. Nevertheless, studying it in the present context, we think the correct interpretation is as follows. Upon repairing a motor vehicle at the request of its lawful possessor (Akre or his foreman), a lien for reasonable charges for repair services automatically attaches to the vehicle in favor of the garageman (respondent). However, by the proviso of I.C. § 45-806, such lien is subordinate to the security interest of one holding a conditional sale contract or title retaining note covering the vehicle if such interest is properly noted on the vehicle's certificate of title, unless the garageman prior to commencing repairs has notified such security holder of the intended repairs and has received no negative response within three days. Thus, the garageman has his lien on a motor vehicle whenever he repairs it at the request of its legal possessor; but "in order to derive the benefits of" I.C. § 45-806, namely the priority accorded the garageman's lien above a pre-existing secured interest noted on the certificate of title, the statutory notification must be given. Thus, on the present facts respondent has his lien for reasonable repair charges.
This construction finds support in the statute's history. Until 1935, the statute[10] unconditionally gave a lien on an article of personal property to one who repaired it at the request of its owner; there was no expression regarding the relative priority of such lien. In 1935 the statute was amended[11] by adding the clause making the *1018 lien "superior and prior" to specified pre-existing security interests on the vehicle, and by adding the proviso that "in order to derive the benefits of this section" previous notice of intended repairs had to be given to such security holders. The obvious and reasonable interpretation of this amendment is that the proviso clause merely qualified the priority advantage clause: the lien would have priority provided the notification procedure was satisfied.
And, properly analyzed, this result is not illogical. In the present context, appellant's legal interest in the vehicle ownership, is materially different from the security interests expressly protected by I.C. § 45-806. Generally, a security device gives to a creditor a conditional claim against the value of some property ("security") to assure the satisfaction of a separate obligation. The creditor's claim against such security is limited to the amount of the underlying obligation. Upon default in that obligation, the secured creditor will not receive ownership or unfettered possession of the security; rather, the creditor's right is limited to satisfying the obligation out of the proceeds from a sale of the security. The secured creditor is not interested in the security itself; his interest lies in the security's value which represents a potential fund assuring payment of the separate obligation. Rules concerning relative priorities of separate security interests in the same property, as that contained in I.C. § 45-806, establish the rank or order of payment from the fund arising upon creditor's sale of property. A "superior and prior" lienholder must have his lien completely satisfied before subordinate or junior secured interests receive anything at all from the fund. Thus, making a lien "superior and prior" to a pre-existing security interest may jeopardize the pre-existing security interest.
Because one having a security interest in certain property does not have a right to its ownership and unfettered use, he is not directly enriched by repairs to the property. However, an owner is necessarily enriched by required repairs to his property in that he may demand possession and use of the property. Indeed, in the present action there is no contention that the repairs were not required or the charges for them unreasonable.
Viewed in light of the considerations discussed in the two preceding paragraphs, we see nothing illogical in the provisions of I.C. § 45-806, safeguarding holders of pre-existing security interests but not owners.
This opinion has given this Court its first opportunity to interpret I.C. § 45-806 since its amendment in 1935.[12] That amendment establishes the notification procedure for achieving priority for a garageman's lien over pre-existing security interests noted on a vehicle's certificate of title. Though not addressed directly to the present action, brief remarks are in order regarding certain policy implications of the statute as amended. It is common knowledge that many owners have financed the purchase of their automobiles and as security have pledged with lending institutions the certificates of title to the automobiles. Many other owners likely keep the certificates locked in safe deposit boxes. The point being that when someone needs repairs for his automobile, he may not have immediate access to the certificate of title.[13] In such a situation, until he is paid *1019 a prudent garageman may well refuse to repair the vehicle or to release possession of it if it has been repaired. Thus immobilized, the vehicle is of little value to anyone.
Nevertheless, the priority provisions of I.C. § 45-806, as amended in 1935, are quite clear, and the problems we have just discussed are of course legislative matters.[14] As such, we can do no more than point out that the problems inherent in I.C. § 45-806 may leave that statute unworkable.
Judgment affirmed. Costs to respondent.
SMITH, C.J., and TAYLOR, McFADDEN, and SPEAR, JJ., concur.
NOTES
[1] In its cross-complaint, respondent alleged that during November 1964 it did work on the straight boom in the reasonable value of $245.49, the amount of the cross-complaint's prayer for relief. However, in answers to interrogatories respondent stated that on October 10, 1964, it performed work on the straight boom (welding and adding pipe and a few items to it) at a cost of $25.00, and that later, November 10, 1964, the vehicle was brought to respondent's shop by Akre's foreman (Stephen McNearney) where respondent worked on the vehicle itself tuning its motor, steam cleaning its whole inside, changing its air controls and gauges and removed the straight boom.
[2] In the claim and delivery action, at appellant's order the sheriff seized the boom and delivered it to appellant. The points involved in the claim and delivery action are not directly in issue on this appeal.
[3] Appellant had asked for $245.49 in its cross-complaint, but the reason for the discrepancy in amounts does not appear and the judgment is not questioned in this respect.
[4] In 1967 the statute was amended by, inter alia, substituting "a security interest" for "conditional sales contract or title retaining note." Idaho Sess. Laws 1967, ch. 272, § 12, pp. 756-757.
[5] Appellant states its argument as follows:
"Idaho is a title State and thereby owners of motor vehicles are given protection not afforded to owners of other personal property. If the person repairing or altering a motor vehicle must give notice to a holder of a conditional sales contract or chattel mortgage, which would only appear by an examination of the title, it is obvious that a full ownership right should have, at least, the same protection from someone having work done without the owner's authorization. A contrary view would mean that if one was trying out a dealer's vehicle or driving a rented automobile, he could have work done in a garage and create a lien if it was free and clear of all liens on the title." (App.Br. 6).
[6] See n. 1, supra.
[7] Idaho R.Civ.P. 56(c); Jordan v. Pearce, 91 Idaho 687, 429 P.2d 419 (1967).
[8] I.C. § 49-414. Such notation must be made in accordance with procedure set forth in I.C. § 49-412.
[9] And since the 1967 amendment referred to in n. 4, a holder of any "security interest."
[10] C.S. § 6413; I.C.A. § 44-706.
"A person who makes, alters or repairs any article of personal property, at the request of the owner, has a lien on the same for his reasonable charges for work done and materials furnished, and may retain possession of the same until the charges are paid. If not paid within two months after the work is done, the person may proceed to sell the property at public auction, by giving 10 days' public notice of the sale by advertising in some newspaper published in the county in which the work was done; or, if there be no newspaper published in the county, then by posting up notices of the sale in three of the most public places in town where the work was done, for 10 days previous to the sale. The proceeds of the sale must be applied to the discharge of the lien and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof."
[11] Idaho Sess. Laws 1935, ch. 87, § 1, pp. 153-154. The amendment made no deletions. Added language is indicated by italics.
"Section 44-706. LIEN FOR MAKING, ALTERING, OR REPAIRING PERSONAL PROPERTY. Any person, firm or corporation who makes, alters or repairs any article of personal property, at the request of the owner or person in legal possession thereof, has a lien, which said lien shall be superior and prior to any mortgage of title retaining note or conditional sales contract on the same for his reasonable charges for work done and materials furnished, and may retain possession of the same until the charges are paid. If not paid within two months after the work is done, the person, firm or corporation may proceed to sell the property at public auction, by giving ten days' public notice of the sale by advertising in some newspaper published in the county in which the work was done; or, if there be no newspaper published in the county, then by posting up notices of the sale in three public places in the town where the work was done, for ten days previous to the sale. The proceeds of the sale must be applied to the discharge of the lien and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof. Provided that the said person, firm or corporation who is about to make, alter or repair the said property, in order to derive the benefits of this section, must, before commencing said making, altering or repairing, give notice of the intention to so make alter or repair said property, by registered mail, to any holder of a mortgage lien which mortgage is of record in the county where said property is situated, and, if a motor vehicle, to any holder of a conditional sales contract or title retaining note which may appear on the certificate of title of said vehicle, at least three days before commencing said making, altering or repairing and if notice in writing within said three days be not given by such holder of mortgage or holder of conditional contract or title retaining note notifying said firm or corporation not to perform said services then the said making, altering or repairing may proceed and the prior lien provided for herein attaches to said property."
[12] The only Idaho opinion concerning the statute was decided in 1924, Neitzel v. Lawrence, 40 Idaho 26, 231 P. 423. That case is in no way pertinent to the points involved in this action.
[13] And if the certificate of title is produced and it shows secured interests, the garageman must wait three days after giving notice before commencing repairs. But the general dependence on automobiles in today's society, especially in a spacious state like Idaho with its many rural areas, indicates that often repairs are needed immediately. See Note, 70 Yale L.J. 995, 1014 (1961). See generally, 7A Blashfield, Cyclopedia of Automobile Law and Practice § 5162 (perm. ed. 1950).
[14] We note that in 1967, the legislature enacted, as part of Idaho's adoption of the Uniform Commercial Code, a statute giving priority to a lien for repairs ("services or materials") above a pre-existing perfected security interest "unless the lien is statutory and the statute expressly provides otherwise." I.C. § 28-9-310. However, at the same time a slight amendment was made to I.C. § 45-806 (see n. 4; supra), the statute's priority provisions otherwise being left in effect.
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420 F.Supp. 72 (1976)
UNITED STATES of America, Plaintiff,
v.
Armin A. ZIEGENHAGEN, Defendant.
No. 76-CR-23.
United States District Court, E. D. Wisconsin.
July 28, 1976.
*73 Charles N. Clevert, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.
Arthur B. Nathan, Racine, Wis., for defendant.
DECISION and ORDER
MYRON L. GORDON, District Judge.
The defendant is charged in an eight-count indictment with violations of 18 U.S.C. 922(a)(6) and 922(h). Counts I through IV charge that the defendant knowingly made false written statements concerning his past criminal record in connection with his purchase of each of four firearms, and that these statements were likely to deceive the seller about the lawfulness of the defendant's acquisition of these firearms in violation of 18 U.S.C. 922(a)(6). Counts V through VIII allege that the defendant, a convicted felon, knowingly received four firearms, each transported in interstate commerce, in violation of 18 U.S.C. 922(h).
Based on the stipulations of fact and the exhibits submitted by the parties, the plaintiff contends that a finding of guilt and judgment of conviction should be entered against the defendant as to each count of the indictment. The defendant poses three arguments in opposition to this contention. For the reasons stated below, I reject the defendant's arguments and will find him guilty as charged in the indictment.
I. EFFECT OF STATE RESTORATION OF CIVIL RIGHTS
The defendant asserts that he did not make a false statement about a "fact material to the lawfulness of the sale . . of [a] firearm" under 922(a)(6) when, before purchasing each of four firearms, he wrote "no" in answer to the question: "Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?" The defendant concedes that he was convicted of burglary and robbery in the Wisconsin state courts. However, he argues that his constitutional right to bear arms was restored pursuant to § 57.078 Wis.Stats., thus making his purchase of firearms lawful. Alternatively, he asserts that even if his previous convictions did make the sale of firearms to him unlawful, he thought that the state's restoration of his civil rights made his purchase lawful.
I reject both of these arguments. Section 57.078, Wis.Stats., provides in part:
"Civil rights restored to convicted persons satisfying sentence
Every person who is convicted of crime obtains a restoration of his civil rights by serving out his term of imprisonment or otherwise satisfying his sentence. The certificate of the department or other responsible supervising agency that a convicted person has served his sentence or otherwise satisfied the judgment against him is evidence of that fact and that he is restored to his civil rights."
Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974) held that a person who has received a state gubernatorial pardon not based on a determination of innocence is still regarded as convicted under federal statutes prohibiting a convicted felon from transporting or receiving firearms shipped in interstate commerce. Moreover, the Supreme Court has held that the structure and legislative history of the Gun Control Act of 1968, 18 U.S.C. §§ 921-928, demonstrate congressional concern with "keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons." Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 503, 45 L.Ed.2d 450 (1976).
*74 Here the defendant received a restoration of civil rights simply by satisfying his sentence. The parties stipulated that after Mr. Ziegenhagen served a term in prison and completed a period of parole, he received a certificate pursuant to § 57.078 Wis.Stats. Neither the stipulation nor the state statute suggests that the defendant's civil rights were restored because he was subsequently found innocent of the state felony charges.
"[T]he scope of a federal statute normally is not dependent on state law." Thrall v. Wolfe, supra. I believe that the defendant's state restoration of civil rights does not remove his felony convictions for the purpose of 922(a)(6) and 922(h). The purpose of the statutes as stated in Barrett would be emasculated if every person receiving a restoration of civil rights after completing a state sentence were deemed not to have been convicted within the meaning of these federal laws. Section 922(a)(6) does not suggest that one who serves out his state sentence is any less a convicted felon than a pardoned defendant, not found innocent. See Thrall v. Wolfe, supra.
I also reject the argument that the defendant believed that his firearm purchase was lawful in view of the restoration of his civil rights. The defendant's views on the lawfulness of his purchase are irrelevant under 922(a)(6). That statute requires only that the purchaser of a firearm "knowingly . . . make any false . . . written statement . . .." It has been stipulated that the defendant was convicted of two felonies, that he is literate, that he read the previously-quoted question concerning past convictions, and that he answered it "no". The defendant has not suggested that he believed that he had not been convicted of two felonies. From these facts I find that the defendant knew that he was previously convicted of two felonies and therefore conclude that he knowingly gave a false answer concerning his past criminal record.
II. FIREARMS TRANSPORTED IN INTERSTATE COMMERCE
The defendant argues with respect to counts V through VIII of the indictment that the interstate commerce requirement of § 922(h) should not be construed to include the sale of firearms in Wisconsin by a Wisconsin dealer to a Wisconsin resident. The purpose of this statute, he asserts, is to regulate the "business of interstate trafficking in weapons," not the so-called intra-state sale in the instant case.
The defendant's argument has been foreclosed by Barrett v. United States, supra. As previously stated, the Supreme Court there found that the purpose of § 922(h) includes keeping firearms out of the hands of convicted felons, among others, 423 U.S. at 220, 96 S.Ct. 498. Accordingly, the Court held that a firearm is transported in interstate commerce within the meaning of § 922(h) if a dealer in one state receives a firearm sent at any time from a manufacturer or distributor in another state. The statute is not limited to transactions in which a dealer orders a specific firearm from another state at the request of a particular purchaser.
The transactions here fall within § 922(h) as construed in Barrett. It has been stipulated that the firearms in question were all previously transported to Wisconsin from other states. I therefore conclude that the defendant's argument is without merit.
III. EQUAL PROTECTION
The defendant finally argues that § 922(h) denies him the equal protection of the laws by prohibiting his receipt of firearms transported in interstate commerce, but not of firearms transported in intrastate commerce.
A legislative classification such as this violates the equal protection component of the fifth amendment due process clause only if it creates an invidious discrimination *75 without rational basis. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); see also Weinberger v. Wiesenfeld, 420 U.S. 636, 638, note 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); United States v. Weatherford, 471 F.2d 47, 51 (7th Cir. 1972).
"The legislature may select one phase of one field and apply a remedy there, neglecting the others, . . ." Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). Here, Congress may have focused on the interstate transport of firearms and left the area of intrastate transport for whatever regulation the states might respectively deem appropriate. Indeed, the defendant's brief cites legislative history to that effect. Such a decision does not violate equal protection. For these reasons, I find the defendant's final argument unpersuasive.
Based on the entire record before me, and in view of my disposition of the defendant's arguments, I believe the defendant, Armin A. Ziegenhagen, to be guilty as charged in the indictment.
Therefore, IT IS ORDERED that a finding of guilty and a judgment of conviction will be entered against the defendant as to each count of the indictment at a hearing in open court to be held at 9:45 A.M., on August 31, 1976. In the interim, the defendant is directed to report promptly to the United States probation office for the preparation of a presentence report. Sentence will be imposed at the aforesaid hearing.
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2019 IL 123643
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123643)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
CONRAD ALLEN MORGER, Appellant.
Opinion filed November 21, 2019.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Justices Thomas, Kilbride, Garman, Theis, and Neville concurred in the
judgment and opinion.
Chief Justice Burke took no part in the decision.
OPINION
¶1 In this appeal, the defendant, Conrad Morger, challenges, as overbroad and
facially unconstitutional, the probationary condition set forth in section 5-6-
3(a)(8.9) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-
6-3(a)(8.9) (West 2016)). Defendant submits that section’s “complete ban on
accessing ‘social networking websites’ as a condition of probation is unreasonable
and unconstitutional under the First Amendment.” The appellate court rejected that
argument. 2018 IL App (4th) 170285. We allowed the defendant’s petition for leave
to appeal (Ill. S. Ct. R. 315 (eff. July 1, 2013)) and now reverse, in part, the
judgment of the appellate court.
¶2 STATUTES PERTINENT TO DEFENDANT’S
SEX OFFENDER PROBATION
¶3 Multiple statutory conditions of probation were imposed in this case, but we
consider four subsections of section 5-6-3 of the Code of Corrections (730 ILCS
5/5-6-3 (West 2016)) of particular significance in analyzing the issue presented for
our consideration: id. § 5-6-3(a)(8.7) (mandatory for a child sex offender), id. § 5-
6-3(a)(8.9) (mandatory if convicted of a sex offense as defined in the Sex Offender
Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016))), 730 ILCS 5/5-6-
3(a)(11) (West 2016) (mandatory if convicted of a sex offense as defined in
SORA), and id. § 5-6-3(b)(18) (discretionary if convicted of a sex offense as
defined in SORA). The pertinent conditions provide:
“(a) The conditions of probation and of conditional discharge shall be that
the person:
***
(8.7) if convicted for an offense *** that would qualify the accused as a
child sex offender ***, refrain from communicating with or contacting, by
means of the Internet, a person who is not related to the accused and whom
the accused reasonably believes to be under 18 years of age; ***[1]
***
(8.9) if convicted of a sex offense as defined in [SORA] committed on
or after January 1, 2010 (the effective date of Public Act 96-262), refrain
1
Another condition of probation imposed in this case prohibited this defendant from having
contact of any kind with the victim, his sister.
-2-
from accessing or using a social networking website as defined in Section
17-0.5 of the Criminal Code of 2012;
***
(11) if convicted of a sex offense as defined in Section 2 of [SORA] ***
may not knowingly use any computer scrub software on any computer that
the sex offender uses; ***
***
(b) The Court may in addition to other reasonable conditions relating to the
nature of the offense or the rehabilitation of the defendant as determined for
each defendant in the proper discretion of the Court require that the person:
***
(18) if convicted for an offense committed on or after June 1, 2009 (the
effective date of Public Act 95-983) that would qualify as a sex offense as
defined in [SORA]:
(i) not access or use a computer or any other device with Internet
capability without the prior written approval of the offender’s probation
officer, except in connection with the offender’s employment or search
for employment with the prior approval of the offender’s probation
officer;
(ii) submit to periodic unannounced examinations of the offender’s
computer or any other device with Internet capability by the offender’s
probation officer, a law enforcement officer, or assigned computer or
information technology specialist, including the retrieval and copying
of all data from the computer or device and any internal or external
peripherals and removal of such information, equipment, or device to
conduct a more thorough inspection;
(iii) submit to the installation on the offender’s computer or device
with Internet capability, at the subject’s expense, of one or more
hardware or software systems to monitor the Internet use; and
-3-
(iv) submit to any other appropriate restrictions concerning the
offender’s use of or access to a computer or any other device with
Internet capability imposed by the offender’s probation officer[.]” Id.
§ 5-6-3(a)(8.7), (a)(8.9), (a)(11), (b)(18).
The definition of a “social networking website” appears at section 17-0.5 of the
Criminal Code of 2012 (720 ILCS 5/17-0.5 (West 2016)):
“ ‘Social networking website’ means an Internet website containing profile
web pages of the members of the website that include the names or nicknames
of such members, photographs placed on the profile web pages by such
members, or any other personal or personally identifying information about
such members and links to other profile web pages on social networking
websites of friends or associates of such members that can be accessed by other
members or visitors to the website. A social networking website provides
members of or visitors to such website the ability to leave messages or
comments on the profile web page that are visible to all or some visitors to the
profile web page and may also include a form of electronic mail for members
of the social networking website.”
¶4 BACKGROUND
¶5 The State’s uncontested evidence, resulting in defendant’s convictions, is more
fully set forth in the appellate court’s original opinion. See 2016 IL App (4th)
140321 (Morger I) (remanding for resentencing because the circuit court had
delegated the responsibility of imposing conditions of probation to “Court
Services”). We summarize here only those facts pertinent to our disposition.
¶6 In January 2013, defendant, who was 20 years old (born May 14, 1992), was
charged with aggravated criminal sexual abuse and criminal sexual abuse. Each
charge alleged that defendant’s criminal acts—perpetrated against his teenage
sister—occurred between August 2010 and November 2012. The evidence at
defendant’s bench trial established that defendant, while in the family residence,
touched his sister’s breast and vagina and that he had her touch his penis. Defendant
was convicted of both charges. As the State points out, presentencing evaluation by
a clinician concluded that defendant was viewed as “a moderate to high risk to
-4-
reoffend,” but it was “likely” that he could be safely treated in the community with
appropriate supervision. The evaluator recommended, among other things, that
defendant be prohibited from having contact with anyone under 18 years of age and
from viewing, owning, or downloading pornography or sexually stimulating
material. 2 Statutory conditions of probation referenced at the outset of this opinion
implemented those recommendations. Those conditions and a host of others (18 in
all) were ultimately imposed by the McLean County circuit court—after remand
from the appellate court—as part of defendant’s four-year sentence of probation.
¶7 When the case again came before the appellate court, defendant challenged
multiple conditions of his probation—including the condition challenged here—all
of which were upheld. 2018 IL App (4th) 170285 (Morger II). Defendant’s
constitutional challenge to the flat ban on the use of social media was premised
principally, as it is now, upon the United States Supreme Court’s decision in
Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017). Morger II,
2018 IL App (4th) 170285, ¶ 69.
¶8 In Packingham, defendant, a registered sex offender who had completed his
sentence, was convicted for violating a North Carolina law that barred registered
sex offenders from gaining access to commercial social networking websites. The
Supreme Court concluded the North Carolina statute impermissibly restricted
lawful speech in violation of the first amendment. Packingham, 582 U.S. at ___,
137 S. Ct. at 1737.
¶9 The appellate court found this case
“different from Packingham in two important respects: (1) defendant’s access
to social media is not foreclosed altogether, as was the case in Packingham, and
(2) defendant has not yet completed his sentence and his probation conditions
cannot ‘endure for 30 years or more.’ Packingham, 582 U.S. at ___, 137 S. Ct.
at 1734.” (Emphasis in original.) Morger II, 2018 IL App (4th) 170285, ¶ 83.
¶ 10 With respect to the first distinction, the appellate court construed the conditions
of defendant’s probation so as to allow a probation officer to “temporarily *** lift
2
During an interview with a detective, in which defendant admitted his conduct and repeatedly
expressed remorse, defendant acknowledged that, prior to the incidents with his sister, he had
watched pornography on the Internet.
-5-
or modify a condition if the probation officer believed doing so would be
appropriate, given both defendant’s need to have that condition temporarily lifted
or modified, as well as the need to protect the public, particularly children.” Id.
¶ 82. The appellate court believed the broad powers granted a probation officer
under subsection (b)(18) of section 5-6-3—a discretionary condition of probation
imposed in this case—allowed the probation officer to “lift” what, by its terms,
appears to be the mandatory, unequivocal ban on access to social media imposed
by subsection (a)(8.9).
¶ 11 The appellate court also found Packingham distinguishable because
(1) defendant was still serving his sentence, unlike Packingham, and thus defendant
could be subjected to restrictions that would be unconstitutional if applied to
Packingham and (2) the ban on defendant’s access to social media was only
temporary—for the duration of his sentence—whereas the ban in Packingham had
no temporal limitation—it was, in effect, a lifetime ban.
¶ 12 Before the appellate court, defendant argued that multiple conditions of his
probation were “unconstitutional, overly broad, and unreasonable.” The appellate
court rejected those arguments. Before this court, he argues, on the basis of
overbreadth, only one condition is unconstitutional—the “complete ban” on the use
of social media.
¶ 13 ANALYSIS
¶ 14 As a preliminary matter, the parties have acknowledged the completion of
defendant’s sentence, which would render this matter moot. Nonetheless, they
submit that an exception to the mootness doctrine applies.
¶ 15 Although, as a general rule, we will not decide moot questions (In re Jarquan
B., 2017 IL 121483, ¶ 17), this court has recognized exceptions to that rule (see
In re Alfred H.H., 233 Ill. 2d 345, 354-55 (2009) (discussing the public interest
exception, the capable-of-repetition-yet-avoiding-review exception, and the
collateral consequences exception to the mootness doctrine)). The public interest
exception applies when (1) the question presented is of a public nature, (2) there is
a need for an authoritative determination for the future guidance of public officers,
and (3) there is a likelihood of future recurrence of the question. In re Lance H.,
-6-
2014 IL 114899, ¶ 13. This case meets those criteria. The issue implicates first
amendment rights and access to social media websites—which the Supreme Court
has characterized as “the modern public square.” See Packingham, 582 U.S. at ___,
137 S. Ct. at 1737. The flat ban on access to those websites, by its terms, applies to
any probationer convicted of a sex offense as defined in SORA. Hence, the question
of its constitutionality will recur frequently until authoritatively resolved by this
court. We thus consider the issue presented under the public interest exception.
¶ 16 Principles of Review
¶ 17 The probationary condition at issue is statutory and mandatory for all
probationers who are convicted of a sex offense as defined in SORA. The
constitutionality of a statute is a question of law that we review de novo. People v.
Minnis, 2016 IL 119563, ¶ 21. All statutes are presumed constitutional; the party
challenging the constitutionality of a statute has the burden of clearly establishing
its invalidity. Id. This court must construe the statute so as to uphold its
constitutionality if reasonably possible. Id.
¶ 18 With respect to our probation system, specifically, this court has recognized
that the State of Illinois has a legitimate interest in promoting the effective operation
of its probation system, which serves the purposes of rehabilitating probationers
while punishing them and protecting the public from crime. People v. Lampitok,
207 Ill. 2d 231, 250 (2003). The effectiveness of that system will, at times,
necessarily involve limitations on constitutional rights the probationer would
otherwise enjoy. As the Supreme Court observed in Griffin v. Wisconsin, 483 U.S.
868, 874 (1987):
“To a greater or lesser degree, it is always true of probationers (as we have said
it to be true of parolees) that they do not enjoy ‘the absolute liberty to which
every citizen is entitled, but only . . . conditional liberty properly dependent on
observance of special [probation] restrictions.’ Morrissey v. Brewer, 408 U.S.
471, 480 (1972).”
¶ 19 In accord with those observations, this court, in In re J.W., 204 Ill. 2d 50, 78
(2003), noted that a condition of probation that impinges on fundamental
constitutional rights is not automatically deemed invalid, as even fundamental
-7-
constitutional rights are not absolute and may be reasonably restricted in the public
interest. When deciding the propriety of a condition of probation imposed in a
particular case, whether explicitly statutory or not, the overriding concern is
reasonableness. Id. “To be reasonable, a condition of probation must not be overly
broad when viewed in the light of the desired goal or the means to that end.” Id.
The court in J.W. explained, in a context similar to the one now before this court:
“In other words, ‘ “[w]here a condition of probation requires a waiver of precious
constitutional rights, the condition must be narrowly drawn; to the extent it is
overbroad it is not reasonably related to the compelling state interest in reformation
and rehabilitation and is an unconstitutional restriction on the exercise of
fundamental constitutional rights.” ’ ” Id. (quoting In re White, 158 Cal. Rptr. 562,
565-66 (Ct. App. 1979), quoting People v. Mason, 488 P.2d 630, 635 (Cal. 1971)).
“When assessing the reasonableness of a condition of probation it is
appropriate to consider whether the restriction is related to the nature of the
offense or the rehabilitation of the probationer. [Citations.] Other
considerations are: (1) whether the condition of probation reasonably relates to
the rehabilitative purpose of the legislation, (2) whether the value to the public
in imposing this condition of probation manifestly outweighs the impairment to
the probationer’s constitutional rights, and (3) whether there are any alternative
means that are less subversive to the probationer’s constitutional rights, but still
comport with the purposes of conferring the benefit of probation.” Id. at 79.
¶ 20 In J.W., this court concluded that a condition of probation that, for all purposes,
“banished” the 12-year-old defendant from South Elgin—where he had resided
with his parents and where the sex crimes were committed—was unconstitutionally
overbroad as it “fail[ed] to make any provision for J.W. to enter the area for
legitimate purposes.” Id. at 81.
¶ 21 This defendant argues that the statutory prohibition on probationers accessing
social media websites is facially unconstitutional as overbroad because, inter alia,
it admits of no exceptions for legitimate purposes.
¶ 22 “A statute is overbroad on its face if it prohibits constitutionally protected
activity as well as activity that may be prohibited without offending constitutional
rights.” People v. Relerford, 2017 IL 121094, ¶ 50. In order to survive intermediate
-8-
scrutiny, a content-neutral regulation of protected speech—such as that at issue
here—
“(1) must serve or advance a substantial governmental interest unrelated to the
suppression of free speech and (2) must not burden substantially more speech
than necessary to further that interest—or in other words, it must be narrowly
tailored to serve that interest without unnecessarily interfering with first
amendment freedoms.” Minnis, 2016 IL 119563, ¶ 36.
¶ 23 The overbreadth doctrine permits a party to challenge a statute as a facial
violation of the first amendment, even if that party’s conduct would not fall within
the amendment’s protection. Relerford, 2017 IL 121094, ¶ 50. Although in a typical
facial challenge, a defendant would have to establish that no set of circumstances
exist under which the statute would be valid, in the first amendment context, a law
may be invalidated as overbroad if a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep. People
v. Clark, 2014 IL 115776, ¶ 11; Minnis, 2016 IL 119563, ¶ 44 (concluding that
statute did no more than eliminate the exact source of the evil it sought to remedy);
see also Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694, 698 (7th Cir.
2013) (noting that the United States Supreme Court “has invalidated bans on
expressive activity that are not the substantive evil if the state had alternative means
of combating the evil”).
¶ 24 In this case, the statute’s ban on the use of social media applies to all
probationers who are convicted of a sex offense, as defined in the SORA, whether
or not a minor was involved and whether or not the use of social media was a factor
in the commission of the offense.
¶ 25 Packingham v. North Carolina
¶ 26 The parties recognize that the Supreme Court’s decision in Packingham is
pivotal in this case. As such, we look, in detail, at the observations and findings of
the Packingham Court.
¶ 27 As noted, North Carolina made it a felony for a registered sex offender “to
access a commercial social networking Web site where the sex offender knows that
-9-
the site permits minor children to become members or to create or maintain personal
Web pages.” N.C. Gen. Stat. § 14-202.5(a) (2009). The statute included two express
exemptions. The statutory bar did not extend to websites that “[p]rovid[e] only one
of the following discrete services: photo-sharing, electronic mail, instant
messenger, or chat room or message board platform.” Id. § 14-202.5(c)(1). The law
also did not encompass websites that have as their “primary purpose the facilitation
of commercial transactions involving goods or services between [their] members
or visitors.” Id. § 14-202.5(c)(2); see Packingham, 582 U.S. at ___, 137 S. Ct. at
1734.
¶ 28 At the outset of an opinion that would ultimately strike down the North Carolina
statute, the Supreme Court repeatedly emphasized the importance of social media
in modern life:
“While in the past there may have been difficulty in identifying the most
important places (in a spatial sense) for the exchange of views, today the answer
is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in
general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997),
and social media in particular. ***
Social media offers ‘relatively unlimited, low-cost capacity for
communication of all kinds.’ Reno, supra, at 870. On Facebook, for example,
users can debate religion and politics with their friends and neighbors or share
vacation photos. On LinkedIn, users can look for work, advertise for employees,
or review tips on entrepreneurship. And on Twitter, users can petition their
elected representatives and otherwise engage with them in a direct manner. ***
In short, social media users employ these websites to engage in a wide array of
protected First Amendment activity on topics ‘as diverse as human thought.’
Reno, supra, at 870 (internal quotation marks omitted).
***
*** [T]he Court must exercise extreme caution before suggesting that the
First Amendment provides scant protection for access to vast networks in that
medium.” Packingham, 582 U.S. at ___, 137 S. Ct. at 1735-36.
- 10 -
¶ 29 Though extolling the virtues of the Internet and social media, the Court
tempered its enthusiasm with the recognition that those media of communication
are subject to abuse by criminal elements:
“For centuries now, inventions heralded as advances in human progress
have been exploited by the criminal mind. New technologies, all too soon, can
become instruments used to commit serious crimes. *** So it will be with the
Internet and social media.” Id. at ___, 137 S. Ct. at 1736.
¶ 30 In that regard, the Court immediately turned to a discussion of sex crimes
committed against children—tacitly acknowledging that social media websites
furnish a ready means for orchestrating the sexual abuse of children:
“[A]s this Court has recognized, ‘[t]he sexual abuse of a child is a most serious
crime and an act repugnant to the moral instincts of a decent people.’ Ashcroft
v. Free Speech Coalition, 535 U. S. 234, 244 (2002). And it is clear that a
legislature ‘may pass valid laws to protect children’ and other victims of sexual
assault ‘from abuse.’ See id., at 245; accord, New York v. Ferber, 458 U. S. 747,
757 (1982). The government, of course, need not simply stand by and allow
these evils to occur. But the assertion of a valid governmental interest ‘cannot,
in every context, be insulated from all constitutional protections.’ Stanley v.
Georgia, 394 U. S. 557, 563 (1969).” Id. at ___, 137 S. Ct. at 1736.
¶ 31 En route to resolving the issue before the Court—applying intermediate
scrutiny to a statute it assumed was content-neutral—the Supreme Court made two
further assumptions: (1) the scope of the statute applied to commonplace social
networking sites like Facebook, LinkedIn, and Twitter, and (2) the first amendment
permits a state to enact specific, narrowly tailored laws that prohibit a sex offender
from engaging in conduct that presages a sex crime, like contacting a minor or using
a website to gather information about a minor. The Court emphasized: “Specific
laws of that type must be the State’s first resort to ward off the serious harm that
sexual crimes inflict.” Id. at ___, 137 S. Ct. at 1737. The Court then cryptically
added in dictum: “(Of importance, the troubling fact that the law imposes severe
restrictions on persons who already have served their sentence and are no longer
- 11 -
subject to the supervision of the criminal justice system is also not an issue before
the Court.)” Id. at ___, 137 S. Ct. at 1737. 3
¶ 32 That said, the Court determined that the statute was not narrowly tailored to
serve a significant governmental interest. Id. at ___, 137 S. Ct. at 1736-37.
“Even with these assumptions about the scope of the law and the State’s
interest, the statute here enacts a prohibition unprecedented in the scope of First
Amendment speech it burdens. *** By prohibiting sex offenders from using
those websites, North Carolina with one broad stroke bars access to what for
many are the principal sources for knowing current events, checking ads for
employment, speaking and listening in the modern public square, and otherwise
exploring the vast realms of human thought and knowledge.” Id. at ___, 137 S.
Ct. at 1737.
¶ 33 The Court concluded:
“In sum, to foreclose access to social media altogether is to prevent the user
from engaging in the legitimate exercise of First Amendment rights. It is
unsettling to suggest that only a limited set of websites can be used even by
persons who have completed their sentences. Even convicted criminals—and
in some instances especially convicted criminals—might receive legitimate
benefits from these means for access to the world of ideas, in particular if they
seek to reform and to pursue lawful and rewarding lives.” Id. at ___, 137 S. Ct.
at 1737.
¶ 34 The interpretation of those last two sentences carries momentous weight in our
resolution of this case. In the wake of Packingham, federal decisions following the
Court’s decision have tended to focus only on the first of those two, emphasizing
the Court’s reference to “persons who have completed their sentences,” as a
limitation of the Court’s holding.
3
The comment, perhaps, expresses the Court’s concern over the proliferation of statutes that
govern the lives of sex offenders who have served their sentences, circumscribing myriad aspects
of their lives.
- 12 -
¶ 35 Federal Court of Appeals Decisions
¶ 36 Federal decisions reviewing the propriety of conditions of supervised release
deal with the same concerns that we consider relevant when imposing conditions
of probation: deterrence of crime, protection of the public, and rehabilitation. 4
¶ 37 Some federal decisions prior to Packingham, such as United States v.
Burroughs, 613 F.3d 233, 244-45 (D.C. Cir. 2010), held that, where a defendant
sex offender did not use a computer to facilitate his crimes, the imposition of
unexplained conditions restricting his use of a computer, while on supervised
release, constitutes error. Compare United States v. Albertson, 645 F.3d 191, 198
(3d Cir. 2011) (ban on Internet use unless preapproved by probation is “too broad
unless the defendant has used the internet as an instrument of harm”), with United
States v. Legg, 713 F.3d 1129 (D.C. Cir. 2013), and United States v. Laureys, 653
F.3d 27 (D.C. Cir. 2011) (cases in which the Internet was used to commit the
crimes). The Burroughs court noted, inter alia:
“The government argues that these restrictions are related to Burroughs’s
conduct because the Internet can be used to arrange sexual encounters with
minors and to advertise minors for prostitution. Of course it can. But from drug
dealers to Ponzi schemers and smugglers to stalkers—nearly any criminal can
use the Internet to facilitate illegal conduct. That an offense is sometimes
committed with the help of a computer does not mean that the district court can
restrict the Internet access of anyone convicted of that offense.” Burroughs, 613
F.3d at 243.
¶ 38 In United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir. 2009), the court of
appeals considered a flat ban on home use of the Internet as a condition of
supervised release. The court recognized:
4
Section 3583(d)(1) of Title 18 requires that discretionary conditions of supervised release be
“reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).”
18 U.S.C. § 3583(d)(1) (2000). Those factors are “the nature and circumstances of the offense and
the history and characteristics of the defendant”; the need “to afford adequate deterrence to criminal
conduct”; the need “to protect the public from further crimes of the defendant”; and the need “to
provide the defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” Id. § 3553(a)(1), (a)(2)(B), (C), (D).
- 13 -
“[O]ur sister circuits have upheld broad restrictions on internet access as a
condition of supervised release where (1) the defendant used the internet in the
underlying offense; (2) the defendant had a history of improperly using the
internet to engage in illegal conduct; or (3) particular and identifiable
characteristics of the defendant suggested that such a restriction was
warranted.” Id. at 70.
The court noted, however,
“Conversely, in cases where there is an insufficient nexus with a
defendant’s conduct or characteristics, courts have vacated supervised release
conditions restricting internet access. For example, in United States v. Freeman,
316 F.3d 386 (3d Cir. 2003), ‘there [was] nothing in t[he] record to suggest that
[defendant] ha[d] used the internet to contact young children’ or solicit
inappropriate sexual contact. Id. at 392. Accordingly, the court found that a
restriction forbidding defendant from owning a computer or accessing the
internet without the approval of his probation officer was ‘overly broad.’ Id.”
Id. at 71.
¶ 39 One might think that Packingham’s effusive description of social media
websites as “the modern public square,” for purposes of the first amendment, would
result in an extension of Burroughs’s principles with respect to sex offenders—on
supervised release or probation—who have not used the Internet to commit their
crimes. However, as the State notes, many post-Packingham cases have limited the
reach of Packingham, a recent case noting that “Packingham invalidated only a
post-custodial restriction and expressed concern that the statute applied even to
persons who have already served their sentence.” (Emphasis in original and internal
quotation marks omitted.) United States v. Carson, 924 F.3d 467, 473 (8th Cir.
2019).
“Because supervised release is part of a defendant’s sentence, Packingham does
not render a district court’s restriction on access to the internet during a term of
supervised release plain error. [Citations.] We find this reasoning applies with
equal force here. Thus, even assuming the district court’s prohibition on
creating or maintaining a social media profile implicates the same First
Amendment interests as a restriction on accessing social media altogether, the
- 14 -
district court did not commit plain error by imposing Special Condition 16.”
(Emphasis in original.) Id.
It appears, in all of the cases cited in this paragraph of Carson, use of the Internet
was somehow involved in the commission of the offenses. However, the dispositive
point emphasized was that those defendants—subject to the prohibitory
conditions—were still serving their sentences.
¶ 40 At least one post-Packingham case has emphasized the need for narrow
tailoring and consistency of conditions of supervised release. See United States v.
Holena, 906 F.3d 288 (3d Cir. 2018). Holena repeatedly visited an online chatroom
and tried to entice a 14-year-old boy to have sex. As it turned out, the “boy” was an
FBI agent. Holena pled guilty to attempting to entice a minor to engage in sexual
acts. He was sentenced to 10 years’ imprisonment and a lifetime of supervised
release. As a special condition of that supervised release, he was forbidden to use
the Internet without his probation officer’s approval. He had to submit to regular
searches of his computer and home, and he had to let the probation office install
monitoring and filtering software on his computer. Id. at 290.
¶ 41 After serving his prison sentence, Holena violated the terms of his supervised
release on two occasions. The first time, he went online to update social media
profiles and answer e-mails. The second time, he logged into Facebook without
approval, then lied about it to his probation officer. After each violation, the court
sentenced him to nine more months’ imprisonment and reimposed the special
conditions. At Holena’s latest revocation hearing, the judge imposed another
condition, forbidding him to possess or use any computers, electronic
communications devices, or electronic storage devices. Holena objected to that
lifetime ban. Id.
¶ 42 The court of appeals found the conditions imposed upon Holena to be
impermissibly contradictory and more restrictive than necessary. Id. at 291. In the
latter respect, as the court was remanding to the district court for tailoring of
conditions, the court offered this guidance:
“The District Court can limit Holena’s First Amendment rights with
appropriately tailored conditions of supervised release. Defendants on
supervised release enjoy less freedom than those who have finished serving
- 15 -
their sentences. See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587,
151 L.Ed.2d 497 (2001); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir.
2017). But, as we have noted, these restrictions must be tailored to deterring
crime, protecting the public, or rehabilitating the defendant. Under
Packingham, blanket internet restrictions will rarely be tailored enough to pass
constitutional muster.” Id. at 294-95.
¶ 43 Subsection (a)(8.9)’s Ban on the Use of Social Media
¶ 44 Turning to the specific statutory condition here at issue—subsection (a)(8.9) of
section 5-6-3—we reject, at the outset, the suggestion of the appellate court that a
probation officer could “temporarily *** lift or modify” the statute’s ban on access
to, or use of, social media. See Morger II, 2018 IL App (4th) 170285, ¶ 82. The
State now concedes that is not the case. 5 Subsection (b)(18) of section 5-6-3—a
discretionary condition of probation that was imposed in this case—provides for
extensive monitoring of a defendant’s devices “with Internet capability.” In fact, an
offender cannot—without violating that condition of probation—access or use a
device “with Internet capability”—anyone’s device—without the prior approval of
his or her probation officer. However, subsection (b)(18) does not specifically
address what Internet sites a defendant may visit. 6 Moreover, it does not allow a
probation officer to authorize an offender’s access to sites—in this instance a whole
category of sites—that the legislature has chosen to restrict. Hence, we reject the
appellate court’s conclusion that a probation officer may “lift” subsection (a)(8.9)’s
mandatory, flat ban on the use of social media.
¶ 45 With that clarification, we examine the constitutionality of the statute using the
lens of intermediate scrutiny—and the standard of review is intermediate scrutiny.
Like the statute at issue in Minnis—where we found the statute to be content-neutral
and applied intermediate scrutiny—this “provision is part of a statutory scheme
5
In a footnote at page six of the State’s brief, the State acknowledges: “The appellate court
appears to have conflated the probation condition that permitted defendant to use a computer or
other Internet-connected device with his probation officer’s approval, *** with the condition
prohibiting defendant from using or accessing social networking websites, which allowed for no
override by the probation officer.”
6
We also observe, because it is discretionary, it may not apply in every case where the
imposition of subsection (a)(8.9) is required.
- 16 -
intended to prevent sex offenses against children and to protect the public.” Minnis,
2016 IL 119563, ¶ 34. We note, as well, that the Supreme Court in Packingham,
considering a flat ban on the use of social media with some similarities to the one
now before us, proceeded on the basis that the statute was content-neutral and
“subject to intermediate scrutiny.” Packingham, 582 U.S. at ___, 134 S. Ct. at 1736.
In Packingham, the Supreme Court noted—as did this court in Minnis—that in
order to survive intermediate scrutiny, a law must be narrowly tailored to serve a
significant governmental interest; it must not burden substantially more speech than
is necessary to further the government’s legitimate interests. Id. at ___, 134 S. Ct.
at 1736; Minnis, 2016 IL 119563, ¶ 34.
¶ 46 The requirement of narrow tailoring dovetails, for purposes of our review, with
standards for imposing probationary conditions that impinge upon constitutional
rights. As J.W. instructs,
“[w]here a condition of probation requires a waiver of precious constitutional
rights, the condition must be narrowly drawn; to the extent it is overbroad, it is
not reasonably related to the compelling state’s interest in reformation and
rehabilitation and is an unconstitutional restriction on the exercise of
fundamental constitutional rights.” (Internal quotation marks omitted.) J.W.,
204 Ill. 2d at 78.
In the end, the geographical restriction challenged in J.W. failed to pass
constitutional muster because it failed to make an exemption from the restriction
for legitimate purposes; i.e., it was not “narrowly drawn.” Id. at 81-82.
¶ 47 Considerations identified in J.W. as bearing upon the question of whether a
condition of probation, impinging upon constitutional rights, is reasonably related
to the goals of probation and, thus, narrowly drawn and not overbroad, include
(1) the nature of the offense, (2) the rehabilitation of the defendant, (3) whether the
condition of probation reasonably relates to the rehabilitative purpose of the
legislation, (4) whether the value to the public in imposing the condition of
probation manifestly outweighs the impairment to the probationer’s constitutional
rights, and (5) whether there are any alternative means that are less subversive to
the probationer’s constitutional rights but still comport with the purposes of
conferring the benefit of probation. Id. at 79. The last consideration necessarily
- 17 -
requires that we take into account other conditions of probation that were available
for utilization and/or were, in fact, imposed.
¶ 48 We begin with the nature of the sexual offenses committed by defendant. The
first act was committed while defendant was still a teenager. The offenses involved
sexual conduct in the family home with a younger sibling, who was also a teenager.
The offenses were, in a sense, crimes of opportunity and convenience. It does not
appear that defendant sought victims over the Internet 7 or, more generally, in the
community or world at large. There is nothing to suggest that defendant was a
sexual predator who would use the Internet to find and molest children.
¶ 49 As far as his prospects for rehabilitation are concerned, we have only the
assessment of the evaluator, who concluded that defendant was viewed as “a
moderate to high risk to reoffend” but it was “likely” that he could be safely treated
in the community with appropriate supervision. In furtherance of that treatment, the
evaluator recommended, inter alia, that defendant be prohibited from having
contact with anyone under 18 years of age and from viewing, owning, or
downloading pornography or sexually stimulating material. Conditions of
probation implementing both of those recommendations were included in the
circuit court’s order of probation.
¶ 50 Next is the broader question: whether the contested condition of probation—
here a total ban on access to social media applicable to all sex offenders—
reasonably relates to the rehabilitative purpose of the legislation. During oral
argument of this case, the State was asked to explain how the total ban on access to
social media would contribute to a defendant’s rehabilitation. After some
circuitous, nonresponsive references to protection of the public, the answer was that
the ban would remove the “temptation to reoffend.” That answer might carry some
weight where a defendant is one who has used social media to orchestrate and
ultimately commit his crimes; 8 however, a host of offenders—this defendant
7
The Internet was, however, a factor insofar as defendant viewed pornography over the Internet
immediately before the acts of sexual conduct occurred.
8
It would seem that counseling and treatment would more likely ensure successful
rehabilitation, as opposed to a mere temporary ban on the use of social media.
- 18 -
included—do not fall into that category. Subsection (a)(8.9) broadly sweeps the
latter in with offenders who have used social media to prey upon others. 9
¶ 51 Moreover, we find an observation in Packingham relevant in this context. The
Court, in Packingham, concluded,
“[T]o foreclose access to social media altogether is to prevent the user from
engaging in the legitimate exercise of First Amendment rights. It is unsettling
to suggest that only a limited set of websites can be used even by persons who
have completed their sentences. Even convicted criminals—and in some
instances especially convicted criminals—might receive legitimate benefits
from these means for access to the world of ideas, in particular if they seek to
reform and to pursue lawful and rewarding lives.” (Emphasis added.)
Packingham, 582 U.S. at ___, 137 S. Ct. at 1737.
¶ 52 Federal courts limiting the reach of Packingham have focused on the second
sentence of this paragraph—particularly the phrase, “even by persons who have
completed their sentences”—to find that the principles of Packingham do not apply
to those still serving their sentences—a group the Packingham Court had no reason
to address. Those courts ignore the last sentence—italicized supra—which refers
to the reformative and rehabilitative aspects of access to social media.
¶ 53 However, those who are still serving their sentences are also “convicted
criminals” who “might receive legitimate benefits” from social media as “they seek
to reform and to pursue lawful and rewarding lives.” Id. at ___, 137 S. Ct. at 1737
One has to ask how “reform” differs from “rehabilitation” and, if there is no
difference, why foreclosure of access to social media inhibited a sex offender’s
“reform” and was unconstitutional, in Packingham, but subsection (a)(8.9)’s total
ban on access for all sex offenders on probation furthers the goal of
“rehabilitation,” without “tailoring” as to substance or circumstance. 10
9
As noted in a recent law review article, some states—Illinois included—do not give judges
and supervising officers the option of declining to impose restrictions on access to social media. See
Jacob Hutt, Offline: Challenging Internet and Social Media Bans for Individuals on Supervision for
Sex Offenses, 43 N.Y.U. Rev. L. & Soc. Change 663, 665 (2019).
10
As one commentator has observed, in conjunction with a discussion of Packingham:
“The irony of these restrictions lies in the supposedly rehabilitative and reintegrative purposes
underlying supervision: the very technology that supervised individuals could use to seek out
- 19 -
¶ 54 To be sure, moving on to consider the next factor identified in J.W.—“whether
the value to the public in imposing this condition of probation manifestly outweighs
the impairment to the probationer’s constitutional rights”—the ban of subsection
(a)(8.9) protects the public from those offenders who would use social media for
unlawful purposes. The ban in Packingham sought to further the same end. Yet,
assuming that the North Carolina law applied to social networking sites such as
“Facebook, LinkedIn, and Twitter”—sites that would fall within the purview of
subsection (a)(8.9) as well—the Supreme Court found the law could not stand
because it was not narrowly tailored to serve that significant governmental interest.
See id. at ___, 137 S. Ct. at 1736-37. The broad ban of the law could not be
sustained solely on the ground that it protected the public against sex offenders,
though it undoubtedly did that. It unconstitutionally impaired the first amendment
rights of convicted sex offenders. In this case, we find that the protective value of
the social media ban, in its current, absolute form, does not manifestly outweigh
the impairment to the probationer’s constitutional rights.
¶ 55 That is particularly so when we consider the final J.W. factor: whether there are
any alternative means that are less subversive to the probationer’s constitutional
rights but still comport with the purposes of conferring the benefit of probation.
There obviously are. They were additional conditions of probation imposed in this
very case.
¶ 56 If the concern is that defendant might contact other minors via the Internet for
sexual purposes, the mandatory condition of probation set forth in subsection
(a)(8.7) of section 5-6-3 specifically prohibited defendant from doing so. Moreover,
the discretionary condition of probation imposed pursuant to subsection (b)(18) of
section 5-6-3 grants a defendant’s probation officer broad oversight of the
defendant’s access to, or use of, any device with Internet capability, including
(1) preliminary approval of use, (2) unannounced examinations of devices with
Internet capability, (3) the right to install “hardware or software systems” on a
defendant’s devices to monitor Internet use, and (4) the power to impose “any other
appropriate restrictions concerning the offender’s use of or access to a *** device
employment, to reconnect with estranged family members, to become engaged in politics, and
to stay informed on current events is prohibited. The ends of parole—‘to help individuals
reintegrate into society as constructive individuals as soon as they are able’—are obstructed by
its means.” Hutt, supra at 665-66.
- 20 -
with Internet capability.” As if that were not enough, the mandatory condition
imposed pursuant to subsection (a)(11) of section 5-6-3 prohibits, for good
measure, a probationer convicted of a sex offense from knowingly using computer
scrub software.
¶ 57 Defendant does not, before this court, challenge the constitutionality of any of
those provisions. They provide ready examples of how the conditions of
defendant’s probation could be “narrowly drawn” so as to not function as an
“unconstitutional restriction on the exercise of fundamental constitutional rights.”
(Internal quotation marks omitted.) See J.W., 204 Ill. 2d at 78. Defendant could not
contact a minor via the Internet without violating a specific condition of his
probation—condition No. 7 (730 ILCS 5/5-6-3(a)(8.7) (West 2016)). Pursuant to
condition No. 8 (id. § 5-6-3(b)(18)), he could not—without violating his
probation—even access or use a device with Internet capability without the prior
approval of his probation officer. That condition mandates prospective and
retrospective scrutiny of everything defendant would do, or did, on the Internet.
¶ 58 Having considered the factors this court identified as relevant in J.W., we
conclude that the probationary condition set forth in subsection (a)(8.9) of section
5-6-3 of the Code of Corrections is overbroad and facially unconstitutional. Like
the geographic ban in J.W., the social media ban is absolute, admitting of no
exceptions for legitimate use (see J.W., 204 Ill. 2d at 81), which could be supervised
and overseen by a defendant’s probation officer. 11 Applying the tenets of
Packingham, we find that subsection (a)(8.9), in its current form, “prohibits
constitutionally protected activity as well as activity that may be prohibited without
offending constitutional rights.” Relerford, 2017 IL 121094, ¶ 50. “[A] substantial
number of its applications are unconstitutional, judged in relation to the statute’s
legitimate sweep” (Clark, 2014 IL 115776, ¶ 11), which is the protection of the
public. 12 The condition of probation is not narrowly drawn, as J.W. requires. See
J.W., 204 Ill. 2d at 78. It unnecessarily sweeps within its purview those who never
11
We assume, for purposes of this analysis only, that subsection (b)(18) of section 5-6-3 is
constitutional, as defendant is not challenging its constitutionality in this court.
12
As noted supra, we are not persuaded that subsection (a)(8.9) provides rehabilitative value—
according to the State, the removal of temptation to reoffend—that outweighs, in many
circumstances, its detriment to rehabilitation, given the Supreme Court’s statements regarding the
positive value of social media in a sex offender’s reformation.
- 21 -
used the Internet—much less social media—to commit their offenses and who show
no propensity to do so, as well as those whose Internet activities can be supervised
and monitored by less restrictive means.
¶ 59 For the reasons stated, we find probationary condition No. 5, imposed pursuant
to subsection (a)(8.9) of section 5-6-3 of the Code of Corrections,
unconstitutionally overbroad. We express no opinion as to the constitutionality of
other conditions of probation imposed in this case, as they are not challenged in this
court. Consequently, we reverse, in part, the judgment of the appellate court and
vacate the probationary condition banning access to, or use of, social media. We
otherwise affirm the appellate court’s judgment as to issues not before us.
¶ 60 Appellate court judgment affirmed in part and reversed in part.
¶ 61 Circuit court judgment affirmed in part and vacated in part.
¶ 62 CHIEF JUSTICE BURKE took no part in the consideration or decision of this
case.
- 22 -
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Criminal Case Template
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MICHAEL SUAREZ,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
§
§
§
§
§
No. 08-06-00303-CR
Appeal from the
346th District Court
of El Paso County, Texas
(TC# 20040D00125)
MEMORANDUM OPINION
We have considered “Appellant’s Motion to Dismiss Appeal.” The motion complies with
Rule 42.2(a) of the Rules of Appellate Procedure. Tex.R.App.P. 42.2(a). As no decision of this
Court has been delivered before we received this motion, we grant the motion and dismiss the
appeal. See id.; Tex.R.App.P. 43.2(f).
KENNETH R. CARR, Justice
March 15, 2007
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)
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45 So.3d 463 (2010)
D.W.L.
v.
STATE.
No. 1D10-2260.
District Court of Appeal of Florida, First District.
October 6, 2010.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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727 F.2d 1114
U.S.v.Sosa*
NO. 83-5397
United States Court of Appeals,Eleventh Circuit.
FEB 21, 1984
1
Appeal From: S.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
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IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 141
OCTOBER TERM, A.D. 2015
November 10, 2015
ROCIO ESMERALDA MERCADO
SOTO LINCH,
Appellant
(Defendant),
S-15-0073
v.
RONALD B. LINCH,
Appellee
(Plaintiff).
Appeal from the District Court of Natrona County
The Honorable Daniel L. Forgey, Judge
Representing Appellant:
C.M. Aron of Aron & Hennig, LLP, Laramie, WY.
Representing Appellee:
Jamie M. Woolsey of Fuller, Sandefer & Associates, LLC, Casper, WY.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] In 2014, Rocio Linch filed a W.R.C.P. 60(b)(4) motion in district court seeking to
set aside a 1999 default judgment granting her husband, Ronald Linch, a divorce. The
district court denied Ms. Linch’s motion on the ground that the motion was not filed
within a reasonable time. Although the district court erred in denying Ms. Linch’s
motion solely on the basis of her delay in filing the motion, we find that Ms. Linch has
failed to establish that the default judgment is void and we therefore affirm the district
court decision denying her Rule 60(b)(4) motion.
ISSUES
[¶2] Ms. Linch states the issues on appeal as follows:
I. Whether the timeliness requirements of Rule 60 apply
to a motion under subparagraph (b)(4) alleging that the
judgment is void.
II. Whether a default divorce judgment is void for lack of
subject matter jurisdiction and proper venue, when the court
did not find that either party resided in the county as required
by Wyoming statutes.
III. Whether a default divorce judgment is void for failure
of the trial court to find, or consider any evidence of, the
grounds for divorce required by statute.
IV. Whether the disposition of property in a default
divorce judgment is void for failure of the trial court to
consider the factors required by statute.
FACTS
[¶3] Rocio Linch was born in Mexico City, Mexico and is now a naturalized citizen of
the United States. In 1991, Ms. Linch was living in Mexico City, working as lawyer,
when she began exchanging letters with Ron Linch, who was a resident of Linch,
Wyoming in Johnson County. In April 1993, after numerous meetings with Mr. Linch in
Mexico and in the United States, Ms. Linch moved from Mexico and began residing with
Mr. Linch in Linch, Wyoming. On November 9, 1995, the couple executed a prenuptial
agreement, and on November 12, 1995, they were married in Edgerton, Wyoming. After
they married, the Linches continued living in Linch, Wyoming. 1
1
Ms. Linch’s move to Wyoming to reside with and eventually marry Mr. Linch was not her first
experience living in the United States. The record shows that Ms. Linch married a man by the name of
Gilbert Meighan on November 16, 1989, in Miami, Florida, and was divorced from him on June 3, 1991.
1
[¶4] On November 21, 1997, Mr. Linch filed a divorce complaint against Ms. Linch in
the Seventh Judicial District Court in Natrona County. The complaint alleged that both
parties were residents of Natrona County and that no children were issue of the marriage.
It further alleged:
5. That prior to the parties’ marriage, Plaintiff and
Defendant entered into a Prenuptial Agreement, a copy of
which is attached hereto.
6. That irreconcilable differences have arisen
between the parties, making it impossible to continue the
marital relationship. Plaintiff is the aggrieved party.
7. That there is no marital property to be divided
between the parties, and that each party should retain the
property, real and/or personal, which they owned prior to the
marriage and which they have acquired as their sole and
separate property during the marriage.
[¶5] As alleged, the parties’ prenuptial agreement was attached to Mr. Linch’s divorce
complaint. In his prayer for relief, Mr. Linch requested that the district court enter a
judgment granting him a decree of divorce and “[d]eclaring that pursuant to the
Prenuptial Agreement, each party shall retain their separate property owned prior to the
marriage and acquired after the marriage.”
[¶6] Rocio Linch was personally served with the complaint by a process server on
December 10, 1997. Ms. Linch did not file an answer or any other responsive pleading,
and on June 25, 1998, Mr. Linch filed an application for entry of default. On that same
date, the clerk of court filed an entry of default. On March 17, 1999, Mr. Linch filed a
motion for entry of default judgment, and on March 24, 1999, a default judgment was
entered granting Mr. Linch a decree of divorce from Ms. Linch. The default judgment
ordered:
1. That the Plaintiff is hereby granted a decree of
divorce from the Defendant, and the marriage of the parties is
hereby dissolved.
2. That Plaintiff shall retain as his sole and
separate property all real and personal property which is held
by him individually and separately from the Defendant, and
Defendant shall hereafter have no interest in said property.
3. That Defendant shall retain as her sole and
separate property all real and personal property which is held
by her individually and separately from the Plaintiff, and
Plaintiff shall hereafter have no interest in said property.
2
[¶7] Following Mr. Linch’s filing of the divorce complaint in 1997, the Linches
continued to live together, and they did so until October 2011, when they finally ended
their relationship. Nearly three years later, on April 16, 2014, Rocio Linch filed a
W.R.C.P. 60(b)(4) motion to vacate the 1999 default judgment. In support of her motion,
Ms. Linch argued that she had not been properly served with the divorce complaint and
the district court therefore lacked personal jurisdiction to enter the default judgment
against her. She further argued that the district court lacked subject matter jurisdiction
because neither party was a resident of Natrona County and the complaint did not allege
that Mr. Linch had been a Wyoming resident for the sixty days preceding the filing of the
divorce complaint. As additional grounds on which the default judgment should be
declared void, Ms. Linch asserted:
--the district court made no finding that there were grounds for a divorce;
--the default judgment was not entered by the presiding judge to whom the case
had been assigned;
--no action was taken to prosecute the divorce action for more than ninety days;
and
--the district court made no disposition of the parties’ property and took no
evidence on the question of how that property should be divided.
[¶8] On October 9, 2014, the district court held an evidentiary hearing on Ms. Linch’s
Rule 60(b)(4) motion. On December 9, 2014, the court made an oral ruling denying the
motion, explaining:
The return of service in this case submitted under oath
by a disinterested process server established a presumption
that [Ms. Linch] was properly served personally pursuant to
Rule 4. [Mr. Linch’s] testimony further corroborates that
evidence. [Ms. Linch’s] recollection appears to be flawed in
that she refuses to even acknowledge that the return of service
could have been filed with the court in December 2000 – or
I’m sorry – December 11, 1997, which is indisputable based
on the record before the Court. [Ms. Linch’s] evidence on
this issue simply does not rise to the level of strong and
convincing evidence to overcome the other evidence that she
was properly and personally served. This Court therefore had
personal jurisdiction over [Ms. Linch] such that it could enter
a divorce decree.
Turning then to the other grounds asserted under Rule
60, [Ms. Linch] also sets forth several other arguments
pursuant to Wyoming Rule of Civil Procedure 60(b)(4) as to
why the decree of divorce the court entered is void. That
decree was entered over 15 years ago.
3
According to [Ms. Linch], if the Court’s 1999 decree
was void when it was entered, it remains void today and [she]
should be allowed to seek relief at this time. [Mr. Linch]
contends that [Ms. Linch] did not file her motion within a
reasonable time, and the Court should not consider the
motion.
****
Based on the Court’s reading of the rule, the text of the
rule clearly provides that a motion pursuant to Rule 60(b)(4)
shall be made within a reasonable time. That reading is
considering all of the provisions in par[i] materia and also
giving effect to all of the language in the rule. This text
would also seem to reinforce the general policy in favor of the
finality of judgments.
****
Based on this record, [Ms. Linch] at the earliest had
actual notice of the divorce action in December 1997 and
again after the decree was entered in 1999. At the latest, [Ms.
Linch] had actual notice of the divorce in 2006. [Ms. Linch]
could have sought relief from the decree at these times if she
felt aggrieved. That the parties continued to live together is
not a valid reason to justify the time delay in failing to do so.
Even so, [Ms. Linch] has no reasonable explanation for why
she did not seek relief between 2011, when she and [Mr.
Linch] broke up, and 2014, when she actually filed the Rule
60 motion.
The Court therefore finds that [Ms. Linch] did not file
her Rule 60 motion within a reasonable time.
[¶9] On January 6, 2015, the district court issued its written order denying Rocio
Linch’s Rule 60(b)(4) motion, and on February 5, 2015, Ms. Linch timely filed her notice
of appeal to this Court.
STANDARD OF REVIEW
[¶10] We have announced the following parameters for reviewing an order on a Rule
60(b) motion to set aside a judgment:
“The granting or denying of relief pursuant to
W.R.C.P. 60(b) is a matter within the discretion of the trial
court, and our review is limited to the question of whether
there has been an abuse of discretion.” State ex rel. TRL by
Avery v. RLP, 772 P.2d 1054, 1057 (Wyo.1989). When a
4
judgment is attacked pursuant to Rule 60(b)(4), however,
there is no question of discretion in granting or denying
relief—either the judgment is void, or it is valid. Id. Once that
determination is made, the trial court must act accordingly.
Id. “A judgment is not void merely because it is erroneous. It
is void only if the court that rendered it lacked jurisdiction of
the subject matter, or of the parties, or if it acted in a manner
inconsistent with due process of law.” Wright, Miller &
Kane, Federal Practice and Procedure: Civil 2nd § 2862, at
326–29 (1995) (footnotes omitted); see also, In Interest of
WM, 778 P.2d 1106, 1110 (Wyo.1989).
Teton Builders v. Jacobsen Constr. Co., 2004 WY 147, ¶ 6, 100 P.3d 1260, 1263 (Wyo.
2004); see also Jubie v. Dahlke (In re Estate of Dahlke), 2014 WY 29, ¶¶ 27-28, 319
P.3d 116, 124 (Wyo. 2014); Exotex Corp. v. Rinehart, 3 P.3d 826, 831 (Wyo. 2000).
DISCUSSION
[¶11] The district court found that Ms. Linch knew of the divorce decree granted to Mr.
Linch as early as 1999. It based this determination on documents showing Ms. Linch
consulted with legal counsel regarding the decree in 1999, her level of sophistication as
an attorney herself, and her prior experience of being married and divorced in the United
States. Ms. Linch does not contest the court’s finding that she knew of the divorce decree
in 1999. Nor does she dispute that her fifteen-year delay in seeking to set aside the
decree was an unreasonable delay. Indeed, counsel for Ms. Linch stipulated to the
unreasonableness of the delay during the hearing on her motion:
[Counsel for Ms. Linch]: Your Honor, maybe I
could shorten things a bit by – by saying this: We concede
that this time is excessive, and I am not going to argue that
there is anything reasonable about the time. It’s unclear
under Rule 60 the extent to which the reasonableness of the
time of filing the Rule 60 [motion], whether that applies to
60(b)(4). But I don’t claim for a minute that this is a
reasonable length of time to have waited to file a motion. So
that if, as a matter of law, it is too late to claim a decree is
void, then on that basis, we would recognize, at least, that this
is an excessive period of time. * * * I mean, this is 15 years,
and we know that. And if, in fact, that alone is significant,
then we concede it.
[¶12] Ms. Linch likewise does not contest the district court’s finding that she was
properly served with Mr. Linch’s divorce complaint and the district court therefore had
5
personal jurisdiction to enter the divorce decree against her. Instead, Ms. Linch argues
on appeal that the divorce decree was void for lack of subject matter jurisdiction and that
the Rule 60(b) time limitations do not apply to a Rule 60(b)(4) motion to set aside a
judgment as void. We will address first the applicability of the Rule 60(b) time
limitations and then we will turn to the grounds upon which Ms. Linch challenges the
district court’s subject matter jurisdiction to enter the divorce decree.
A. Applicability of Time Limitations to Rule 60(b)(4) Motions
[¶13] Rule 60(b) provides:
On motion, and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a final
judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct
of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any
other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered or
taken.
W.R.C.P. 60(b) (LexisNexis 2015) (emphasis added).
[¶14] The district court’s conclusion that a Rule 60(b)(4) motion must be made within a
reasonable time is an understandable one given the rule’s plain language. It is, however,
nearly universally recognized that there are generally no time limits on the filing of a
Rule 60(b)(4) motion. It has been explained:
* * * Either a judgment is void or it is valid. Determining
which it is may well present a difficult question, but when
that question is resolved, the court must act accordingly.
For similar reasons, there is no time limit on an attack
on a judgment as void. The one-year limit applicable to some
6
Rule 60(b) motions is expressly inapplicable, and even the
requirement that the motion be made within a “reasonable
time,” which seems literally to apply to motions under Rule
60(b)(4), cannot be enforced with regard to this class of
motion. A void judgment cannot acquire validity because of
laches on the part of the judgment debtor.
11 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and
Procedure § 2862 (3d ed. updated 2015) (footnotes omitted); see also Spitznas v. Boone,
464 F.3d 1213, 1225 (10th Cir. 2006) (citing Orner v. Shalala, 30 F.3d 1307, 1310 (10th
Cir.1994)) (“The one-year time limitation cited by the district court does not apply to a
motion made under Rule 60(b)(4), which may be brought at any time.”); V.T.A., Inc. v.
Airco, Inc., 597 F.2d 220, 224 n. 9 (10th Cir. 1979) (“[I]f a judgment is void, it is a
nullity from the outset and any 60(b)(4) motion for relief is therefore filed within a
reasonable time.”); Jackson v. FIE Corp., 302 F.3d 515, 523 n. 22 (5th Cir. 2002) (citing
Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 n. 6 (5th Cir.
1988)) (“[T]here seems to be universal agreement that laches [in bringing a Rule 60(b)(4)
motion] cannot cure a void judgment, and no court has denied relief under Rule 60(b)(4)
because of delay.”).
[¶15] This interpretation of Rule 60(b)(4), that a challenge to a judgment as void may be
brought at anytime, is consistent with how this Court has viewed such challenges. We
have said:
A void judgment is not entitled to the respect accorded to, and
is attended by none of the consequences of, a valid
adjudication. * * *
Although it is not necessary to take any steps to have a void
judgment reversed or vacated, it is open to attack or
impeachment in any proceeding, direct or collateral, and at
any time or place, at least where the invalidity appears upon
the face of the record.
State ex rel. TRL by Avery v. RLP, 772 P.2d 1054, 1056-57 (Wyo. 1989) (quoting 46
Am.Jur.2d, Judgments § 49 at 347–49 (1969)) (emphasis added); see also Brush v. Davis,
2013 WY 161, ¶ 8, 315 P.3d 648, 651 (Wyo. 2013) (“Subject matter jurisdiction is an
issue of law that may be raised at any time by any party or the court on its own motion.”);
Weller v. Weller, 960 P.2d 493, 496 (Wyo. 1998) (citations omitted) (“A lack of subject
matter jurisdiction constitutes a fundamental defect in a proceeding which cannot be
cured by waiver or consent by the parties. Nor may it be cured by the passage of time.”).
7
[¶16] Because the Rule 60(b) time limitations do not apply to a motion brought pursuant
to Rule 60(b)(4), the district court erred in denying Ms. Linch’s motion challenging the
divorce decree as void for lack of subject matter jurisdiction solely on the basis that the
motion was not timely filed. We turn then to the alleged defects that Ms. Linch asserts
rendered the divorce decree void for lack of subject matter jurisdiction.2
B. Challenges to Subject Matter Jurisdiction
[¶17] Subject matter jurisdiction is “the power to hear and determine the matter in
controversy between the parties.” Brush, ¶ 9, 315 P.3d at 651 (quoting JA v. State, Dept
of Family Servs., 2008 WY 15, ¶ 10, 176 P.3d 633, 636 (Wyo. 2008)). “A court has
subject matter jurisdiction when it has the authority to consider and decide ‘cases of the
general class of which the proceeding belongs.’” Id. (quoting DF v. MLM (In re MKM),
792 P.2d 1369, 1373 (Wyo.1990)).
[¶18] We have defined the showing that must be made to establish that a judgment is
void for lack of subject matter jurisdiction:
The legal principles invoked to determine the issues
raised in this case are summarized in Kansas City Southern
Railway Company v. Great Lakes Carbon Corporation, 624
F.2d 822 (8th Cir.1980), cert. denied 449 U.S. 955, 101 S.Ct.
2
At this juncture, we must bear in mind that the sole question with which we are concerned under this
Rule 60(b)(4) motion is whether the alleged errors created a jurisdictional defect affecting the validity of
the district court’s judgment. To the extent any of the alleged errors do not rise to the level of a
jurisdictional defect, we need not and will not resolve the merits of the alleged error. A movant may not
avoid the Rule 60(b) time limitations by simply casting the motion as a Rule 60(b)(4) motion. As one
authority has explained:
A judgment is not void merely because it is erroneous. It is void
only if the court that rendered it lacked jurisdiction of the subject matter,
or of the parties, or if it acted in a manner inconsistent with due process
of law. Of course, although a challenge on one of those three grounds
can be made under Rule 60(b)(4), if the court finds that there was
subject-matter or personal jurisdiction, or that no due-process violation
has occurred, the motion will be denied.
11 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2862 (3d
ed. updated 2015) (footnotes omitted).
In other words, if the defects Ms. Linch asserts in the divorce decree are essentially arguments that the
district court erred in its findings or abused its discretion in the manner in which it entered the decree,
such errors will not be considered. While there is no time limit on considering defects that cause a
judgment to be void, fifteen years is an unreasonable length of time to wait before challenging an error
such as an abuse of discretion.
8
363, 66 L.Ed.2d 220 (1980). The essence of that summary is
that a judgment is void only when there has been a plain
usurpation of power, or the extension of jurisdiction beyond
the scope of the court’s authority. That is to be distinguished
from an error in the exercise of the jurisdiction of the court,
which must be addressed by appeal rather than a motion
under Rule 60(b). The competing policies are a disciplined
observance of jurisdictional limits coupled with the need for
finality of judgments. If the court concludes that the challenge
is simply to an erroneous interpretation of the statutory grant
of jurisdiction, then, in favor of the policy of certainty and
finality, the judgment becomes final unless appealed.
Estate of Dahlke, ¶ 46, 319 P.3d at 127 (quoting In the Interest of WM, 778 P.2d 1106,
1110 (Wyo. 1989)).
[¶19] The United States Supreme Court has expanded on the exceptional circumstances
that will warrant relief pursuant to Rule 60(b)(4) based on a jurisdictional defect:
Federal courts considering Rule 60(b)(4) motions that assert a
judgment is void because of a jurisdictional defect generally
have reserved relief only for the exceptional case in which the
court that rendered judgment lacked even an “arguable basis”
for jurisdiction. Nemaizer v. Baker, 793 F.2d 58, 65 (C.A.2
1986); see, e.g., Boch Oldsmobile, supra, at 661–662
(“[T]otal want of jurisdiction must be distinguished from an
error in the exercise of jurisdiction, and ... only rare instances
of a clear usurpation of power will render a judgment void”
(brackets and internal quotation marks omitted)).
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271, 130 S.Ct. 1367, 1377,
176 L.Ed.2d 158 (2010).
[¶20] Against this backdrop, we consider the alleged defects Ms. Linch asserts render
the divorce decree void for lack of subject matter jurisdiction.
1. Failure of Divorce Complaint to Allege Residential Basis for Jurisdiction
[¶21] Wyo. Stat. Ann. § 20-2-107(a) defines the basis for a district court to exercise
subject matter jurisdiction over a divorce. It provides:
No divorce shall be granted unless the plaintiff has
resided in this state for sixty (60) days immediately preceding
9
the time of filing the complaint, or the marriage was
solemnized in this state and the plaintiff has resided in this
state from the time of the marriage until the filing of the
complaint.
Wyo. Stat. Ann. § 20-2-107(a) (LexisNexis 2015); see also Hensley v. Hensley, 896 P.2d
115, 116 (Wyo. 1995) (applying Wyo. Stat. Ann. § 20-2-107 to find district court
jurisdiction over divorce complaint).
[¶22] It is undisputed that Mr. Linch is a Wyoming resident who resided in Wyoming
for the sixty days preceding his filing of the divorce complaint, as well as from the time
of his marriage to Ms. Linch to the filing of his complaint. Ms. Linch nonetheless
contends the district court did not have subject matter jurisdiction, arguing that because
the divorce complaint did not allege the statutorily-required residential basis, the district
court could not have acquired jurisdiction. Ms. Linch is urging an extraordinary
elevation of form over substance that our precedent soundly rejects.
[¶23] This Court has long held that “a district court’s jurisdiction does not depend upon
the allegations in the pleading; rather, it depends upon whether the court’s authority
extends over the general class to which the case belongs.” Brown v. City of Casper, 2011
WY 35, ¶ 12, 248 P.3d 1136, 1140 (Wyo. 2011) (citing State v. Kusel, 29 Wyo. 287, 297,
213 P. 367, 369 (Wyo.1923)). In Brown, we quoted with favor the following from
Justice Blume’s opinion in Kusel:
The chief argument against the jurisdiction of the court is that
the allegations of the bill of complaint are not sufficient to
sustain the prayer of the bill and do not set out specific facts
which would give the court jurisdiction * * * It is well settled
that jurisdiction does not depend upon the sufficiency of the
bill. If the court has jurisdiction of the subject-matter and of
the parties nothing further is required. The cause of action
may be defectively stated, but that does not destroy
jurisdiction.... Whether a complaint does or does not state a
cause of action is, so far as concerns the question of
jurisdiction, of no importance, for if it states a case belonging
to a general class over which the authority of the court
extends, then jurisdiction attaches and the court has power to
decide whether the pleading is good or bad.
Brown, ¶ 15, 248 P.3d at 1141 (quoting Kusel, 29 Wyo. at 297, 213 P. at 369); see also
Brush, ¶¶ 13, 15, 315 P.3d at 652-53 (rejecting argument that court’s jurisdiction over
modification petition was affected by failure of petitioner to attach statutorily-required
document to petition and make statutorily-required statement in petition).
10
[¶24] Mr. Linch was a Wyoming resident for the sixty days preceding the filing of his
divorce complaint. The district court thus had jurisdiction over the complaint.
2. Improper Venue
[¶25] Wyo. Stat. Ann. § 20-2-104 defines the proper venue for the filing of a divorce
complaint. It provides:
A divorce may be decreed by the district court of the county
in which either party resides on the complaint of the
aggrieved party on the grounds of irreconcilable differences
in the marital relationship.
Wyo. Stat. Ann. § 20-2-104 (LexisNexis 2015).
[¶26] Ms. Linch contends that the divorce complaint incorrectly alleged that both parties
were residents of Natrona County. She argues that because both parties were in fact
residents of Johnson County, the complaint was improperly filed in Natrona County and
the district court was without subject matter jurisdiction over the complaint. Although
we agree that venue for the complaint was properly in Johnson County, Ms. Linch’s
argument that this deprived the district court of jurisdiction again finds no support in our
precedent.
[¶27] We have explained the distinction between venue and subject matter jurisdiction:
As we have explained previously, venue “as a modern
legal concept refers to the county, district, or other
geographical location in which, ‘for the sake of fairness,
convenience, or other commanding policy considerations, a
cause is to be tried.’” Sundance Mt. Resort v. Union Tel. Co.,
2007 WY 11, ¶ 9, 150 P.3d 191, 195 (Wyo.2007) (quoting 77
Am.Jur.2d Venue § 1 (2006)).
The distinction between “jurisdiction” and “venue”
has been plainly established and has frequently
been recognized. Jurisdiction connotes the power
to decide a case on the merits, while venue denotes
locality, the place where the suit should be heard.
Wiglesworth v. Wyrick, 531 S.W.2d 713, 721 (Mo.1976)
(quoting 21 C.J.S. Courts § 15(c)).
11
State Farm Mut. Auto. Ins. Co. v. Kunz, 2008 WY 71, ¶ 14, 186 P.3d 378, 382 (Wyo.
2008).
[¶28] We have also said:
The district courts in this state are courts of general
jurisdiction. As such, they have inherent subject matter
jurisdiction over any and all cases in which jurisdiction is not
specifically vested in some court of limited jurisdiction. This
jurisdiction includes jurisdiction over worker’s compensation
claims and disputes such as the one in this case. Once
jurisdiction is acquired, the district court has the power to
hear and determine the matter and to render a binding
judgment. We adopt the analysis found in Sil–Flo
Corporation v. Bowen, 98 Ariz. 77, 402 P.2d 22 (1965), and
recognize that the power to enter a binding judgment is
equally present among all district courts in the state. In this
context, venue is never a consideration.
Bourke v. Grey Wolf Drilling Co., LP, 2013 WY 93, ¶ 27, 305 P.3d 1164, 1170 (Wyo.
2013) (quoting Matter of Larsen, 770 P.2d 1089, 1092 (Wyo.1989)).
[¶29] Venue and subject matter jurisdiction are separate and distinct concepts. Improper
venue does not deprive a district court of subject matter jurisdiction, and the district court
therefore properly exercised jurisdiction over Mr. Linch’s divorce complaint even though
the complaint was filed in the wrong venue.
3. Failure to Make Required Findings
[¶30] As noted above, Wyo. Stat. Ann. § 20-2-104 provides that a divorce may be
decreed on the grounds of irreconcilable differences in the marital relationship. Wyo.
Stat. Ann. § 20-1-114 governs the disposition of property in the granting of a divorce. It
provides:
Except as provided in subsection (b) of this section, in
granting a divorce, the court shall make such disposition of
the property of the parties as appears just and equitable,
having regard for the respective merits of the parties and the
condition in which they will be left by the divorce, the party
through whom the property was acquired and the burdens
imposed upon the property for the benefit of either party and
children. The court may decree to either party reasonable
12
alimony out of the estate of the other having regard for the
other’s ability to pay and may order so much of the other’s
real estate or the rents and profits thereof as is necessary be
assigned and set out to either party for life, or may decree a
specific sum be paid by either party.
Wyo. Stat. Ann. § 20-2-114(a) (LexisNexis 2015).
[¶31] Ms. Linch argues that the divorce decree was entered in violation of both Wyo.
Stat. Ann. § 20-2-104 and § 20-2-114(a) because the district court failed to take evidence
on the alleged irreconcilable differences and on the question of property distribution. We
again find that the alleged errors do not undermine the district court’s subject matter
jurisdiction and are thus not grounds to set aside the divorce decree.
[¶32] First, we have held that a court does not lose subject matter jurisdiction over an
action for failure to comply with statutory procedural requirements unless the statute
contains an “unequivocal expression” that failure to comply shall result in a loss of
jurisdiction. In re DSB, 2008 WY 15, ¶ 19, 176 P.3d 633, 638 (Wyo. 2008) (citing DB v.
Wyo. Dep’t of Family Serv., 860 P.2d 1140, 1149 (Wyo. 1993); see also Scott v. Bd. of
Trs., 2015 WY 128, ¶¶ 12-13, 357 P.3d 1137, 1139-40 (Wyo. 2015) (applying the same
principle to agency failure to comply with statutory or regulatory requirements). Neither
Wyo. Stat. Ann. § 20-2-104 nor § 114 specifies that failure to make a required finding or
take evidence to support a required finding shall deprive the district court of jurisdiction
or otherwise render the court’s judgment void.
[¶33] Additionally, we have defined the parameters for entry of a default judgment in a
divorce action:
The distinction between an entry of default and a default
judgment must here be recognized. Mora, 611 P.2d at 849.
See generally 10 C. Wright, A. Miller & M. Kane, supra at §§
2682 and 2683, and W.R.C.P. 55(a) and (b). Entry of default
is normally a clerical act which may be performed by the
clerk of court, and it does not constitute a judgment. The
entry of default generally forecloses the party found to be in
default from making any further defense or assertion with
respect to liability or an asserted claim. Zweifel v. State ex rel.
Brimmer, 517 P.2d 493 (Wyo.1974); 10 C. Wright, A. Miller
& M. Kane, supra at § 2688. Although the entry of default
generally establishes the fact of liability according to the
complaint, it does not establish either the amount or the
degree of relief. Adel v. Parkhurst, 681 P.2d 886, 890
13
(Wyo.1984); 6 J. Moore, W. Taggart & J. Wicker, Moore’s
Federal Practice ¶ 55.03[2] (2d ed.1988).
Spitzer v. Spitzer, 777 P.2d 587, 592 (Wyo. 1989).
[¶34] In Spitzer, we observed that the scope of discretion afforded a court in determining
whether a hearing is necessary before entering a default judgment in a divorce action
“does not extend to the entry of a default judgment where the damages are not liquidated
or articulated with certainty.” Spitzer, 777 P.2d at 593. We explained:
Essentially, [Wyo. Stat. Ann. 20-2-114] assigns to the court
the function of making a just and equitable disposition of the
property of the parties, and it allows for the provision of
reasonable alimony. In order to accomplish its function under
the statute, the court must have adequate information
regarding the nature and extent of the property of the parties,
including specific information identifying the property, such
as record ownership to titled or real property. Additionally, in
making an alimony award, the court must have information
regarding the ability to pay. Where this information is
essential for the entry of a proper judgment, the court
abuses its discretion by simply entering a form of judgment
tendered by one of the parties.
Spitzer, 777 P.2d at 593 (emphasis added).
[¶35] Based upon the foregoing, it is clear that the defect Ms. Linch’s claims allege in
the district court’s judgment is an abuse of discretion in its entry of the default judgment
without taking evidence on the questions of irreconcilable differences and property
distribution. These are alleged errors in the district court’s exercise of its jurisdiction, not
allegations that the court usurped power it did not have or extended the court’s
jurisdiction beyond the scope of its authority. See Noonan v. Noonan, 2005 WY 145,
¶¶ 7-8, 122 P.3d 964, 965-66 (Wyo. 2005) (setting aside default divorce pursuant to Rule
60(b)(6) based on court’s abuse of discretion in failure to make required statutory
findings). Thus, whether the district court erred or did not err in failing to take evidence,
the alleged error does not affect the court’s subject matter jurisdiction and is not properly
asserted through a Rule 60(b)(4) motion to set aside the judgment as void.
4. Change of Presiding Judge and Failure to Dismiss for Lack of Prosecution
[¶36] Finally, we address Ms. Linch’s argument that the district court’s judgment may
be void because 1) the judgment was not entered by the presiding judge to whom the case
was originally assigned; and 2) the court did not act on its own motion to dismiss the
14
divorce action for lack of prosecution when the action twice sat dormant for months at a
time. Ms. Linch provides no authority to support her assertion that either of these
occurrences could affect the district court’s subject matter jurisdiction or otherwise
render the court’s judgment void. We therefore do not consider the argument any further.
See Apodaca v. Safeway, Inc., 2015 WY 51, ¶ 16, 346 P.3d 21, 24 (Wyo. 2015)
(declining to consider argument not supported by proper citation of authority and cogent
argument).
CONCLUSION
[¶37] W.R.C.P. 60(b)’s time limitations do not generally apply to Rule 60(b)(4) motions
to set aside a judgment as void, and the district court thus erred in rejecting Ms. Linch’s
Rule 60(b)(4) motion based solely on the delay in filing the motion. On review, however,
we find that none of the defects Ms. Linch alleged in the district court’s default judgment
rendered the judgment void for lack of jurisdiction. We therefore affirm the district
court’s denial of the Rule 60(b)(4) motion.3
3
Because we have affirmed the district court’s denial of Ms. Linch’s Rule 60(b)(4) motion, we do not
consider Mr. Linch’s alternative argument that Ms. Linch should be estopped from challenging the
divorce decree on the ground that she has sought to benefit from the judgment. Additionally, we are not
able to certify that there was no reasonable cause for Ms. Linch’s appeal, and we therefore decline Mr.
Linch’s request that he be awarded attorney fees pursuant to W.R.A.P. 10.05.
15
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71 F.3d 878
U.S.v.Onwuka
NO. 94-20831
United States Court of Appeals,Fifth Circuit.
Nov 21, 1995
Appeal From: S.D.Tex., No. CR-H-94-122-1
1
VACATED.
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591 F.3d 757 (2009)
Nath Crockett WOMACK, Petitioner-Appellant,
v.
Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 08-40478 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
December 21, 2009.
Nath Crockett Womack, Tennessee Colony, TX, pro se.
Joseph Peter Corcoran, office of Atty. Gen., Postconviction Lit. Div., Austin, TX, for Thaler.
Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:
Following a jury trial, Nath Crockett Womack, Texas prisoner # 803963, was convicted of murder and was sentenced to serve life in prison. Initially, Womack did not file a petition for discretionary review (PDR) with respect to this judgment, but the Texas Court of Criminal Appeals later granted him authorization to proceed with an out-of-time PDR.
The instant appeal arises from the district court's denial of Womack's 28 U.S.C. § 2254 habeas corpus petition as untimely. This denial was grounded in the district court's determination that Womack's out-of-time PDR did not toll the period for filing his § 2254 petition or otherwise affect the limitations period found in 28 U.S.C. § 2244(d). Relying upon Jimenez v. Quarterman, ___ U.S. ___, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009), Womack argues that this decision was incorrect and *758 that the time for filing his § 2254 petition began to run after the conclusion of proceedings related to his out-of-time PDR. The Respondent agrees that the district court incorrectly dismissed Womack's § 2254 petition as untimely in light of Jimenez and requests that the judgment be vacated and the case remanded for further proceedings.
This court conducts a de novo review of the district court's determination that Womack's § 2254 petition was untimely. See Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir.2001). In Jimenez, the Court held that "where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet `final' for purposes of § 2244(d)(1)(A)." 129 S.Ct. at 686. Consequently, the district court's determination of untimeliness was incorrect on the facts before us. Moreover, Womack's petition complies with Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), insofar as it also raises reasonably debatable claims of the denial of constitutional rights. See Jimenez, 129 S.Ct. at 684 n. 3 (emphasizing Slack's requirement that, when a district court denies a habeas petition on procedural grounds, an appellate court should grant a Certificate of Appealability only if the prisoner shows that reasonable jurists could debate both whether the petition states a valid claim of constitutional violation and whether the district erred procedurally).
We VACATE the judgment of the district court and REMAND for further proceedings consistent with Jimenez. We express no opinion on the ultimate disposition of Womack's § 2254 petition.
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366 F.Supp.2d 688 (2005)
JCW INVESTMENTS, INC., d/b/a Tekky Toys, Plaintiff,
v.
NOVELTY, INC., Defendant.
No. 02 C 4950.
United States District Court, N.D. Illinois, Eastern Division.
April 25, 2005.
*689 Gregory J Smith, Competition Law Group, LLC, Kelly J. Eberspecher, Strellis, Faulbaum, Walsh & Field, Chartered, Chicago, for JCW Investments, Inc., Plaintiff.
Michael J. Kelly, Freeborn & Peters, Chicago, Daniel J. Lueders, Woodard, Emhardt, Naughton, Moriarty & McNett, John L Roberts, Woodard, Emhardt, Naughton, Moriarty & McNett, Indianapolis, IN, Todd J. Ohlms, Freeborn & Peters, Chicago, for Novelty Inc, Defendant.
MEMORANDUM OPINION AND ORDER
GETTLEMAN, District Judge.
Like the images in the mirrors of a barbershop, this case seems to go on infinitely, with each new phase slightly smaller, but no less complex and vexing, than the one proceeding it. The latest dispute involves the successful plaintiff's petition for attorney's fees, including the most recent request by plaintiff to require defendant to pay yet additional fees and costs incurred in connection with the fee dispute. By this opinion, the court intends to put an end to this nonsense.
The facts of this case are generally set forth in the court's previous opinions dated September 20, 2002, and October 30, 2003.[1] Briefly, defendant Novelty, Inc. copied the trademarks and dolls belonging to plaintiff JCW Investments, Inc., in connection with plaintiff's line of farting dolls. The case was filed in mid-2002 and included litigation with respect to plaintiff's successful motion for a preliminary injunction, plaintiff's successful motion for partial summary judgment on the issue of validity of its copyright and defendant's copying of one of the dolls, and a jury trial in which a verdict was rendered in favor of plaintiff and against defendant, awarding actual damages of $241,000 and punitive damages of $50,000, for a total of $291,000. In addition, the parties engaged in extensive post-trial motions, which were all decided against defendant.
After all the dust settled with respect to the merits, plaintiff petitioned for attorney's fees because the jury had found, and the court concurred, that defendant willfully infringed plaintiff's marks. Pursuant to Local Rule 54.3, the parties apparently attempted to settle the issue of attorney's fees, and when they could not do so the court appointed a special master, John W. Cooley, pursuant to Fed.R.Civ.P. 53. The master conducted appropriate proceedings (no one complains about his procedural decisions) and, on February 9, 2005, issued a 54 page report and recommendation that the court award plaintiff the total sum of $596,399.82 in attorney's fees and expenses. Defendant has filed objections to the special master's report and recommendation, and the matter has been fully briefed. Defendant is correct that, pursuant to Fed.R.Civ.P. 53(g), the court reviews *690 the special master's report and recommendation de novo.
Defendant first criticizes the special master by complaining that he did not apply "elevated scrutiny" to plaintiff's billing records because plaintiff's counsel had taken the case on a contingent fee basis, citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 722, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987). Defendant is wrong. Delaware Valley holds only that a court generally should not increase the lodestar fee to compensate the winning party's attorneys for having assumed the risk of the litigation. In the instant case, plaintiff does not request anything greater than the actual lodestar amount.
Defendant next criticizes the special master's analysis of the 2003 American Intellectual Property Law Association Report of Economic Survey ("AIPLA Report"). However, both parties in the proceedings before the special master cited to the AIPLA Report in arguing their respective positions. That report found that a reasonable range for two separate cases through trial, one trademark and one copyright, resulted in fees in the range of $376,580 on the low end and $616,170 on the high end. Defendant complains that the special master's award in the instant case, which totaled (including expenses) 97% of the high end figure, was improper in light of the nature of this case, which defendant categorizes as "below average intellectual property litigation." Defendant argues that because there were no experts, the amount of paper was only a "one six inch stack," there were "only" eight depositions, and the trial lasted "only" two and one-half days, this case should have resulted in a fee award closer to the low end of the "reasonable" range rather than the high end.
The court disagrees. As noted above and in the previous opinions entered in this case, this litigation has been anything but "below average." In a dispute in which defendant's products were so obviously knock-offs of plaintiff's protected dolls, the case took on a life of its own unnecessarily and litigiously. Instead of simplifying the dispute, defendant insisted on contesting practically every issue, resulting in unnecessarily protracted litigation and requiring the court to decide numerous issues before the case even got to trial, including preliminary injunction and summary judgment motions. Significantly, defendant was justifiably found guilty of willful infringement, resulting in an award of punitive damages. There is nothing "below average" about this case.
Defendant next complains that the special master erred in giving too much weight to plaintiff's billing records, and not considering sufficiently that defendant's attorneys billed far less than plaintiff's. The court has reviewed the special master's analysis of the billing records and finds nothing wrong, and therefore adopts that analysis. Perhaps the best that can be said about defendant's argument on this point is that the proof is in the pudding. Despite defendant's position that it had to assume a burden of proof on its counterclaims and in light of the court's early rulings in the case, the fact remains that the burden of proof of infringement and remedy was always on plaintiff. By meeting that burden, plaintiff proved its case to the satisfaction of the court and the jury. That its lawyers spent more time than defendant's in doing so can hardly be used to reduce the amount of fees owed to plaintiff. Defendant's position that the superior experience of Greg Smith, plaintiff's lead counsel, should have resulted in efficiencies when compared to the relative inexperience of defendant's lead counsel is, *691 as the special master noted, "sheer conjecture." Without proof that plaintiff's attorneys fabricated time records or padded them in an inappropriate manner, there is simply no reason to reduce the fees generated by time that was so obviously well-spent from plaintiff's perspective.
Likewise, defendant's specific objections to the hours spent by plaintiff's attorneys in amending the complaint, conducting discovery, post-trial motions, the summary judgment proceedings, and trial preparation are without merit. The fact that defendant's lawyers spent less time, again, is not determinative. To the contrary, perhaps defendant's lawyers spent less time because they had less evidence with which to defend against an overwhelming plaintiff's case of copyright and trademark infringement. Finally, on this point, the court does not find the entries that defendant contends are "vague" to be anything of the sort. Although other judges have from time to time criticized counsel for failing to detail time spent on such matters as trial preparation and research, given the litigious nature of this case this court does not find the entries to be sufficiently vague to require a reduction. As the special master noted, of the 18 entries to which defendant objected, "11 of them relate to preparation for trial and the other 7 entries are some time entries ranging from .25 to 1.5 hours.... There is no suggestion by defendant that plaintiff's counsel did not perform legal services in connection with these entries." This court finds no reason to disturb that conclusion.
Defendant next complains about the special master's awarding of time spent for what defendant calls "office overhead," based on his finding that defense counsel actually billed approximately seven hours more than plaintiff's for similar tasks. The court finds nothing wrong with this reasoning; these are costs that are borne by the parties and are properly shifted to the losing party, particularly a losing party who has been found guilty of willful misconduct such as defendant in the instant case.
Defendant also complains about so-called "inefficiencies caused by plaintiff's loss of its primary counsel." Again, the fact that Mr. Smith took over this case after an associate left his firm is a common reality in the practice of law for which a successful party such as plaintiff should not be penalized. Mr. Smith's conduct of this case has been exemplary throughout, and it was through his efforts primarily that plaintiff achieved the success that it has in this litigation. The court can find no case holding that a party is required to use the lawyer with the lowest billing rate on a case, particularly a case as vigorously litigated as this one.
As noted by defendant, the special master did make a number or reductions from plaintiff's fee request, including a 25% reduction in the amount billed with respect to the final pretrial order and the preliminary injunction (the two matters about which defendant complains in its objections to the special master's report). The court has reviewed those records and concurs that a 25% reduction is reasonable. The court notes that defendant had the choice of putting plaintiff to its burden in obtaining the preliminary injunction, and that it is the plaintiff's duty to prepare the first draft of the final pretrial order a duty which by its nature requires a far greater amount of time to be spent by the plaintiff's lawyers than the defendant's.
This leaves two matters about which defendant complains that are troublesome to the court. First, plaintiff's attorneys billed an additional $80,000 between the filing of the first fee petition and the updated fee petition. The special master choose not to reduce this amount. The *692 court has reviewed the time records for these fees, and has determined that they are excessive.[2] Accordingly, the court reduces this particular item by 25%, or $20,000.
The second matter about which the court agrees with defendant is the cost of $1,800 foam boards used for demonstrative exhibits by plaintiff. Defendant claims that it purchased similar boards at Kinkos for approximately $40 a piece, a cost that is much more in line with what this court believes is appropriate. Defendant seeks at "at least of 50% reduction" for this excessive cost, and the court agrees. Accordingly, the court will reduce this particular cost by $1,300.
Plaintiff has requested the court to alter its initial order assessing the special master's fees equally between the parties, and awarding $10,212.50 in additional fees incurred by plaintiff since the special master's report in responding to defendant's objections. In the exercise of its discretion, the court declines both requests by plaintiff. It is time this litigation came to an end. After failure by the parties to settle the fee issue the court determined that both parties should bear their own costs and fees in further prosecution of plaintiff's requests for attorney's fees. The court sees no reason to vary from that determination.
CONCLUSION
For the reasons stated above, the court reduces the amount recommended by the special master by $21,300, for a total award of fees and expenses of $575,099.82.
NOTES
[1] JCW Investments, Inc. v. Novelty, Inc., 222 F.Supp.2d 1030 (N.D.Ill.2002); JCW Investments, Inc. v. Novelty, Inc., 289 F.Supp.2d 1023 (N.D.Ill.2003).
[2] Plaintiff failed to address this issue in its response to defendant's objection to the special master's report.
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165 F.2d 758 (1948)
MITCHELL
v.
UNITED STATES et al.
No. 12139.
Circuit Court of Appeals, Fifth Circuit.
January 14, 1948.
A. Milling Bernstein, of Monroe, La., and Mark Callaway, of Brownwood, Tex., for appellant.
Howell H. Heard and J. Norman Coon, both of Monroe, La., for appellees.
Before HUTCHESON, HOLMES, and LEE, Circuit Judges.
*759 LEE, Circuit Judge.
Appellee, Mrs. Rutledge, widow of Lieutenant Wayne T. Hardwick, brought suit against the United States and Mrs. Mitchell, the mother of Hardwick, to recover on a National Service Life Insurance contract in the amount of $10,000. Prior to the suit, the appellee made claim through the Veterans' Administration and her claim was rejected by the Administration's Board of Appeals. Mrs. Mitchell, the appellant, was interpleaded as party defendant, she being the named beneficiary in the original and only existing certificate of National Service Life Insurance. The insurance was taken out by the veteran, Hardwick, on December 3, 1942, at which time he was unmarried. The district court granted judgment in favor of the widow, and from this judgment the mother, Mrs. Mitchell, has appealed.
Lt. Hardwick and the appellee were married on October 16, 1943, the day upon which he was commissioned an officer, at Monroe, Louisiana. The testimony of the appellee is that on that day Hardwick stated to her that "he had a policy made out to his mother, but since we were married he was taking a policy out in my name." There is no evidence, insofar as the Government records show, of any affirmative act of the Lieutenant actually making a change of beneficiary from his mother to his wife while he was at Selman Field, Monroe. The day following their marriage Hardwick and his wife went to Texas to visit his mother and step-father and spent about a week there. Thereafter he was sent to various training fields, to which posts his wife accompanied him. Toward the latter part of January, 1944, Hardwick was informed that he would be sent overseas for combat duty. At that time he and his wife made a last visit to his parents in Texas, and after that visit Hardwick went to Grand Island, Nebraska, for his final processing for overseas duty, and his wife returned to her home at West Monroe. During the January visit to his parents, Mr. and Mrs. Mitchell, there was some discussion in the family about Hardwick's insurance, but the testimony is conflicting. Mrs. Hardwick was at that time pregnant, and her testimony is that Hardwick, upon finding the insurance certificate in his mother's house, said: "Mother, throw this away, because it is not worth the paper it is written on; I have made out my insurance to Juanita because she is expecting a child and needs it, and I have had it issued to her." The wife testified that Mrs. Mitchell was present, understood, and stated that she also wanted it "to be that way." The mother's story of what occurred is that a conversation took place between herself and her son concerning his life insurance, and that her son's wife was not present. She says that she intended to get the insurance certificate which was in her bureau, but that her son said: "No, you needn't bother about it, because I have got it fixed and you will get yours and she will get hers." The mother says she replied: "But you know I have this paper," and that her son replied: "That is OK, it's just a piece of paper." The mother's testimony is that this conversation was the only one that was ever held between herself and her son with regard to the insurance.
At the time of his final processing at Grand Island, Nebraska, Lt. Hardwick, on February 3, 1944, filled out a Government Insurance Report Form on which he filled in his wife's name as that of beneficiary of his insurance. The original of this document has never been located among the Government records; a copy, however, was received by the deceased officer's wife through the United States Mail from the War Department, mailed at Grand Island, Nebraska. A brother officer and close friend, Lt. Lancaster, who was with Hardwick, standing next to him in line at the time this form was filled out, testified that at that time he did not hear Hardwick state that he desired to make a change of beneficiary or request a form for the purpose; but he further testified that he and Hardwick had had several conversations, both in America and later in England, during the course of which Hardwick had said that before his marriage his mother had been the beneficiary of his life insurance, but that he had changed it so that his wife would be the beneficiary. On February 22, Hardwick wrote his wife from England and said, among other things, "Say, darling, did you ever get your papers for my insurance? *760 You should have gotten it before now." (On the trial the court and counsel differed as to whether the word "your" was "your" or "Gov." or "Govt.")
Appellant's specifications of error are: (1) That the court erred in failing to find that the appellee had failed to maintain the burden of proving that her husband had changed the beneficiary; (2) that the lower court erred in holding that the Government Insurance Report Form was such a positive affirmative act by the deceased within the meaning of the statute as definitely to express his intent to effect a change in beneficiary; and (3) that the court erred in holding the evidence sufficient to establish an affirmative act on the deceased's part in execution of his intention, in view of the National Service Life Insurance Act of 1940, 38 U.S.C.A. § 801 et seq., which sets up a legal standard for the orderly administration of this type of Government insurance.
The case presents only the question as to whether Hardwick's naming his wife the beneficiary on the Government Insurance Report Form can be considered such an affirmative act as to evidence an exercise of his right to change the beneficiary. 38 U.S. C.A. § 802(g) (Insurance Act) provides in part:
"The insured shall have the right to designate the beneficiary or beneficiaries of the insurance * * * and shall, subject to regulations, at all times have the right to change the beneficiary or beneficiaries * * * without the consent of such beneficiary or beneficiaries * * *."
The applicable regulation, No. 3447, of the Veterans' Administration in force at the time reads in part:
"* * * A change of beneficiary to be effective must be made by notice in writing signed by the insured and forwarded to the Veterans' Administration by the insured or his agent * * *."
The cases are unanimous that in war-risk insurance cases involving change of beneficiary the courts will brush aside all legal technicalities in order to effectuate the manifest intent of the insured; and that if he manifests an intent to make a change and has done everything reasonably within his power to accomplish his purpose, leaving only ministerial acts to be performed by the insurer, the courts will treat that as done which ought to have been done and give effect to the insured's intent.[1] The cases are also unanimous that a mere intent to change a beneficiary is not enough. Such an intent must be followed by some affirmative act on the part of the insured evidencing an exercise of the right to change the beneficiary.[2] Where the courts differ is as to the degree of affirmative action necessary to effect a change. Literal compliance with the provisions of a policy is never necessary.[3]
Piecing together the facts as disclosed in the record, we reach the conclusion that the insured, Lt. Hardwick, intended to change the beneficiary of his insurance and did so. Standing alone, the testimony of the widow that on their wedding day, October 16, 1943, at Selman Field, Monroe, Louisiana, her husband told her that he intended to make her the beneficiary in place of his mother would be insufficient to prove either intent or affirmative action. But the filling out by the insured of the Government Insurance Report Form on February 3, 1944, at Grand Island, Nebraska, is strong corroboration of that testimony. Patently, Hardwick intended that his wife should be the beneficiary and believed that he had done what he could to make her such. The fact that nowhere in the Government records is there any record of the transactions accomplished in Louisiana on October 16, 1943, is not necessarily controlling and does not constrain us to hold that no change of beneficiary was effectuated on that day, since the original of the Government Insurance Report Form filled out by Hardwick in Nebraska and filed with the War Department, we know to have been lost. Other important papers and documents may *761 also have been lost. The testimony of Hardwick's brother officer, Lancaster, and Hardwick's letter written from England to his wife go to strengthen the evidence not only of Hardwick's intent but also of his belief that he had carried it out.
These insurance cases are difficult of decision. Each must be decided in the light of its own facts. The strict law is that a change of beneficiary must be made in writing and in proper form. Where this has not been done, the courts will brush aside technicalities to give effect to the intention of the insured. It is said that a combination of intent and act is required, but to say in these insurance cases that though intention to change the beneficiary is proved to the hilt, no effective formal act having been done no change can be held to have been made, is not to brush technicalities very far aside. If a man possesssing the degree of literacy required of an officer in the United States Army Air Corps writes, "I have taken out insurance and I have made you the beneficiary," surely it is subserving technicality to say that this is not sufficient evidence of an exercise of his right to change. True, it is not an actual change; but it is strong, almost incontrovertible, evidence of a change.
In the case at bar the facts in combination lead irresistibly to the conclusion that the insured, Hardwick, not only intended to make his wife the beneficiary of his insurance, but had also affirmatively acted to make her such.
The judgment appealed from is affirmed.
NOTES
[1] Bradley v. United States, 10 Cir., 143 F.2d 573; Roberts v. United States, 4 Cir., 157 F.2d 906.
[2] Bradley v. United States, supra; Roberts v. United States, supra; Johnson v. White, 8 Cir., 39 F.2d 793; Egleston v. United States, D.C., 71 F.Supp. 114.
[3] Collins v. United States, 10 Cir., 161 F.2d 64.
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403 Pa. Superior Ct. 280 (1991)
588 A.2d 951
COMMONWEALTH of Pennsylvania
v.
Jose GARCIA, Appellant.
Superior Court of Pennsylvania.
Argued December 18, 1990.
Filed March 28, 1991.
*282 Regina Boutcher and George Henry Newman, Philadelphia, for appellant.
Harriet R. Brumberg, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before CIRILLO, President Judge, and CAVANAUGH, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
OLSZEWSKI, Judge:
This is an appeal from judgment of sentence. Jose Garcia was convicted following a jury trial of involuntary deviate sexual intercourse (18 Pa.C.S.A. § 3123); corruption of minors (18 Pa.C.S.A. § 6301); rape (18 Pa.C.S.A. § 3121); and criminal attempt, rape (18 Pa.C.S.A. § 901).[1] Garcia was sentenced to a term of seven to fifteen years for these convictions.
Garcia appealed the convictions to the Superior Court, which reversed the conviction and ordered a new trial in a split panel decision. Commonwealth v. Garcia (No. 01076 Phila.1989, filed June 4, 1990, Olszewski, J., dissent by Ford Elliott, J.). The Commonwealth petitioned for reargument before this Court en banc; having reviewed the record, the parties' briefs and arguments, we vacate the judgment of sentence and remand the matter for a new trial.
Garcia alleges seven instances of error by the trial court; due to our disposition of the first issue, we need not reach the other six. Garcia argues that the trial court erred in allowing the expert testimony of Alan R. DeJong, M.D., a pediatrician, clinical associate and professor of pediatrics, and a co-director of the Pediatric Sexual Assault Follow-up Program, who testified as to the typical behavior of child *283 sexual assault victims. Garcia characterizes DeJong's testimony as an inadmissible attempt by the Commonwealth to bolster the credibility of the child witness/victims who testified against him. The Commonwealth argues that DeJong's testimony was permissible observations of objective behavior demonstrated by other victims of child sexual abuse. We are constrained by recent opinions of our Supreme Court to agree with Garcia.
This case arose out of incidents alleged to have occurred in Garcia's home during 1985 and 1986. The Commonwealth presented the testimony of two children, ages nine and eight, indicating that Garcia had subjected them to multiple acts of sexual abuse during the time in question. The children's testimony contained inconsistencies and uncertainties as to the dates and number of the incidents of abuse; however, it was clear from their testimony that the children had delayed in reporting the incidents. The children also testified as to their reasons for failing to report the abuse promptly.[2] (See generally, N.T., vol. IV, V.)
The mother of the second victim testified that her daughter had told her of incidents of abuse. Other testimony indicated that an investigation commenced in late August 1986, and that Garcia was arrested on September 10, 1986.
At trial, Garcia relied upon the alleged victim's delay in reporting the abuse as a central element of his defense. Accordingly, the trial court instructed the jury how the delay should enter into their deliberations. (N.T., vol. VIII, P. 124-126.)
Certain aspects of DeJong's testimony centered on his observations of other abuse cases and the presence of *284 delay in those cases. Specifically, DeJong testified that one-third of child sexual abuse victims who report the incident do so within 24 hours; another third of the reporting victims do so within 24-72 hours; the remainder of the victims who report the incident may take up to years do so. (N.T., vol. VII, P. 69-70.) DeJong further testified as to the reasons why children delay in reporting sexual abuse. (Id. at 69-71.)[3]
The trial court allowed this testimony, relying upon Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985). (Trial court opinion at 15-16.) Baldwin allows expert testimony regarding the behavior patterns of child sexual abuse victims as long as the expert does not opine as to the veracity of the child witnesses. Baldwin, supra, 348 Pa.Superior Ct. at 377, 502 A.2d at 257 (citations omitted). Baldwin, however, has been expressly overruled inasmuch as it conflicts with Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), and Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). Davis, supra, 518 Pa. at 81 n. 1, 541 A.2d at 317 n. 1. Our analysis, therefore, turns to an examination of what is left of Baldwin in light of Davis and other case law.
Baldwin permitted a social worker "to explain the dynamics of intra-family sexual abuse and the behavior patterns of the victims ... and why victims are often unable to recall exact dates or times or describe the specific incidents in detail." Baldwin, supra, 348 Pa.Super. at 373, 502 A.2d at 255. The Baldwin Court stated that the reactions and *285 behavior of incest victims "are not matters of common knowledge and experience." Id., 348 Pa.Superior Ct. at 377, 502 A.2d at 257-258 (citations omitted). The Court held that the behavioral and psychological characteristics of child sexual abuse victims are proper subjects of expert testimony. Id. Also, "so long as the expert does not render an opinion on the accuracy of the victim's recitation of facts, his or her general testimony on the dynamics of sexual abuse does not prejudice the jury." Id.; see also, Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317.
In Seese, the expert testified that it was very unusual for a prepubertal child to lie about sexual abuse, because they do not have sufficient sexual knowledge to know how to describe such abuse unless they have experienced it. Id. 512 Pa. at 442, 517 A.2d at 921. Our Supreme Court stated that the testimony was essentially an inadmissible "expert opinion as to the veracity of the class of potential witnesses of which the victim was a member." Id.
Baldwin prohibited only direct testimony regarding the veracity of the witness or complainant. Baldwin, supra 348 Pa.Super. at 376-79, 502 A.2d at 257-258; Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317. Seese expanded this prohibition to include expert testimony which commented on the veracity of a class of potential witnesses of which the victim was a member. Seese, supra 512 Pa. at 443-44, 517 A.2d at 922. The testimony in Davis was similar in many respects to that in Seese. Essentially, children do not fantasize about sexual experiences. Davis, supra 518 Pa. at 79-81, 541 A.2d at 316. Hence, there was expert testimony concerning the veracity of a class of individuals of which the particular witness was a member.[4]
In both Seese and Davis, our Supreme Court's ratio decidendi was the well-known proposition of law that the *286 determination of the veracity of a witness is reserved exclusively for the jury. Davis, supra, 518 Pa. at 81-82, 541 A.2d at 317 (citations omitted); Seese, supra 512 Pa. at 443-44, 517 A.2d at 922 (citations omitted). The Court was concerned with the possibility that such expert testimony would encourage the trier of fact to abdicate its responsibility to ascertain the facts by deferring to an "expert." Ibid. In Seese, the Court stated "such testimony would imbue the opinions of `experts' with an unwarranted appearance of reliability upon a subject, veracity, which is not beyond the facility of the ordinary juror to assess." Seese, supra 512 Pa. at 443-44, 517 A.2d at 922.
Since Seese and Davis, the authority of Baldwin has been continually eroded. In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), an expert testified that the victim suffered from "rape trauma syndrome" and that the victim's failure to identify her attacker two weeks after rape in one-on-one identification was unremarkable, and an in-court identification five years later was credible. Our Supreme Court held that the expert testimony on rape trauma syndrome should not have been admitted. Gallagher, supra 519 Pa. at 297-99, 547 A.2d at 359. The Court stated that the only purpose of the testimony was to enhance the credibility of the victim. Id., 519 Pa. at 295-97, 547 A.2d at 358.[5]Gallagher sparked two dissenting opinions. The thrust of the first dissent was that the expert testimony should have been admitted to explain the apparently inconsistent conduct of the victim as:
... this information was beyond the ordinary training, knowledge, intelligence and experience of the ordinary juror and assisted the jury in assessing the testimony of the victim ...
Id., 519 Pa. at 301, 547 A.2d at 360 (Larsen, J. dissenting). The second dissent argued that the expert testimony should have been allowed as a profile of the behavior of the class *287 of which the victim was a member to help the jury understand the victim's actions. Id., 519 Pa. at 302-03, 547 A.2d at 361 (citations omitted) (Papadakos, J. dissenting).[6]
The erosion of Baldwin continued in Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988), where an expert testified that alleged victim's post-attack behavior was consistent with behavior of victims of child sexual abuse. The Emge Court stated that Seese and Davis prohibited express testimony regarding the alleged victim's ability to verbally communicate the truth. It concluded that behavioral testimony equally invaded the exclusive province of the fact finder. Emge, supra 381 Pa.Super. at 145, 553 A.2d at 76 (emphasis in original). The Court concluded that testimony which matches the behavior of known victims of child sexual abuse with that of an alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, and so is prohibited. Id. (citations omitted). Emge, therefore, treated indirect comment on the veracity of an alleged child sexual abuse witness/victim via testimony as to the behavior of typical victims as an invasion of the province of the jury. See also, Commonwealth v. Higby, 384 Pa.Super. 619, 559 A.2d 939 (1989) alloc. denied, 525 Pa. 978, 575 A.2d 109 (1990).
In Commonwealth v. Gibbons, 383 Pa.Super. 297, 556 A.2d 915, alloc. denied, 523 Pa. 647, 567 A.2d 651 (1989), an expert testified concerning the behavior patterns of child sexual abuse victims and the general dynamics of child sexual abuse. The expert did not attempt to compare alleged victim's behavior to that of known victims of child sexual abuse. Id. 383 Pa.Super. at 300, 556 A.2d at 916. Nevertheless, the Court, relying on Emge, concluded that the prejudicial value of the expert's testimony clearly outweighed *288 its probative value. Id. Gibbons, in effect, prohibits any expert testimony on the typical behavior of child sexual abuse victims because of its prejudicial impact.
We stated in Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989), alloc. granted, 524 Pa. 625, 574 A.2d 67 (1990), that upon review we must determine the purpose for which the expert testimony in question was offered; if that testimony was offered solely to sustain the credibility of the victim, the testimony should not have been admitted. Id. 385 Pa.Super. at 323-26, 561 A.2d at 8-9 (citations omitted). In Dunkle, as here, the victim delayed in reporting the offense, could not recall exact dates and times, and was inconsistent as to other details. Id. Expert testimony remarkably similar to that offered in the case at bar was held inadmissible as serving only to bolster the victim's credibility. Id.
Here, DeJong did not attempt to compare the alleged victims in this case with known sexual abuse victims he had interviewed. Nonetheless, as per Emge and Gibbons, the expert need not place the alleged victim in a class of known victims for his testimony to be inadmissible and an infringement upon the province of the jury. We have reviewed DeJong's testimony and we conclude that his testimony concerning the presence of delay, and the reasons why victims delay reporting incidents, was an attempt by the Commonwealth to legitimize the victims' delay in reporting the incidents. This testimony invaded the province of the jury and, in effect, attempted to have the jury adopt an expert's opinion that delay was a normal occurrence in two-thirds of all child sexual abuse cases, thus eviscerating the prompt complaint instruction. The Commonwealth's impermissible purpose, therefore, was to bolster the credibility of the victims.[7]
*289 Jurors are human and may be unduly impressed by an expert, his credentials, and ultimately his opinion, "even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert." Commonwealth v. Dillon, 386 Pa.Super. 236, 245, 562 A.2d 885, 889, alloc. granted, 524 Pa. 595, 568 A.2d 1245 (1989) (citations omitted)[8]. Our Supreme Court has decided that this will not occur in Pennsylvania courts. See, Seese, Davis, and Gallagher, supra.
The Commonwealth argues that despite the above-cited authority, expert testimony which does not directly opine as to the veracity of a witness is permissible. The Commonwealth attempts to distinguish between testimony which centers on the psychological processes of the victim as opposed to that centering on the behavior patterns of victims, encouraging us to allow the latter.[9] As we noted above, this argument, whether characterized as profiling the typical behavior of a class of victims or as an attempt to explain behavior that is beyond the ordinary experience of *290 jurors, was advanced in the dissenting opinions in Gallagher.[10]Gallagher, supra, 519 Pa. at 297-305, 547 A.2d at 359-362 (Larsen, J. dissenting and Papadakos, J. dissenting). The Gallagher majority implicitly rejected such distinctions by its decision. We are not free to disregard their command.[11]
Our primary concern in these cases is to do justice. To do so, we must maintain a difficult balance between society's interest in prosecuting criminals and a defendant's constitutional right to trial by jury. Our Supreme Court has struck this balance by prohibiting expert testimony which passes on or enhances the victim's credibility. Seese, Davis, and Gallagher, supra. We are constrained to hold that expert testimony regarding the behavior patterns of the victims of child sexual abuse is inadmissible when offered to explain the conduct of the witness/victim in a case, as it tends to bolster the victim's testimony and so withdraw the issue of witness credibility from the jury.
*291 Judgment of sentence of the trial court is vacated, and appellant Garcia is granted a new trial. Jurisdiction is relinquished.
FORD ELLIOTT, J., files Dissenting Opinion in which DEL SOLE and HUDOCK, JJ., join.
FORD ELLIOTT, Judge, dissenting:
I must respectfully dissent. The majority's opinion has effectively driven the expert from the courtroom in cases involving the sexual abuse of children. This result was not mandated by precedent, but instead stems from the majority's misreading and misapplication of the holdings of our supreme court.
Significantly, the supreme court has never expressly overruled the opinion of this court in Commonwealth v. Baldwin, supra. Contrary to the majority's assessment, that court had the opportunity to overrule Baldwin in deciding Commonwealth v. Davis, supra, and instead the court, in a footnote, stated that Baldwin was disapproved only insofar as it conflicted with the Seese and Davis decisions. Therefore, I would find that Baldwin is still valid authority for the proposition that behavioral and psychological characteristics of child sexual abuse victims are proper subjects for expert testimony when such are relevant to an issue in the case and the expert's opinion does not assess or evaluate the credibility of the particular victim. I, therefore, would affirm the trial court's reliance on Baldwin for the admission of the expert testimony in this case, finding that prompt complaint was at issue and that the expert's testimony was highly relevant on that issue and did not offer an expert opinion on the veracity of the victim.
THE CASE FOR EXPERT TESTIMONY
The standard in Pennsylvania for the admission of expert testimony as enunciated by Mr. Justice Flaherty in Commonwealth v. Seese, supra, is that, "[e]xpert testimony is *292 admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience."[1] 512 Pa. at 442, 517 A.2d at 921, (emphasis supplied) (citations omitted).
The use of expert testimony in child sexual abuse cases meets this criteria. The reason is simple. The immediate effects, long term impact and psychological trauma of sexual abuse on children are not, gratefully, matters within the common knowledge, information or understanding possessed by an ordinary juror. Not even a parent, who readily might recognize that a young child is exhibiting strange or unusual behavior, would associate such behavior with something as abhorrent as sexual abuse. How can we assume that jurors are vested with this understanding by virtue of their oath. Therefore, I take particular exception to the majority's conclusion that:
[j]urors are human and may be unduly impressed by an expert, his credentials, and ultimately his opinion, even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert.
Majority opinion at 289 (citation omitted).
Expert testimony, which specifically addresses the psychological dynamics of sexual abuse of children and their behavioral patterns as victims, is vital in many cases. As discussed by Judge Beck in Baldwin,
[t]he foregoing decisions support our conclusion that expert testimony such as that offered by Battinieri does not improperly invade the jury's prerogative. As one commentator has noted:
The argument that such psychological testimony is prejudicial because it bears on the credibility of a witness, and thus invades the province of the jury, is *293 simply wrong. Expert testimony cannot "invade the province of the jury" unless the jury is instructed that it must agree with the expert's assessment.
Baldwin, supra, 348 Pa.Super. at 376, 502 A.2d at 257.
There is a growing body of reliable scientific data to support the fact that the sexual abuse of children embodies psychological and societal components that are not generally within the common understanding and experience of lay observers. The nature of this abuse is often subject to myths and stereotypes. While a juror easily might comprehend that sexual abuse can have an impact on a child psychologically, a juror without some type of expert analysis, would not be able to understand the behavioral and psychological manifestations of this impact. As one commentator noted,
[e]xpert psychological testimony concerning a defendant's sanity is often esoterically expressed in psychological jargon that is far removed from the common experience of the ordinary juror. By contrast, most types of nontraditional scientific evidence are much closer to the common understanding of the ordinary juror, yet, may fall beyond the common experience of jurors. Nontraditional psychological evidence often deals with circumstances that jurors probably suspect involve peculiar psychological consequences not associated with everyday existence. Yet jurors are without sufficient information to have any great insight into what those peculiar consequences might be.
McCord, Syndromes, Profiles and Other Mental Exotica; A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases. 66 Or.L.Rev. 19, 30-31 (1987).
Perhaps the most troublesome aspect of the majority's decision is that without regard to the content or purpose for which the expert testimony is offered, it finds any expert testimony on the behavioral or psychological dynamics of child sexual abuse inadmissible because it "bolsters the credibility of the victim," and thereby invades the province *294 of the jury. However, can it be denied that the use of expert testimony in any case will either bolster or impeach the testimony of other witnesses. As stated in Baldwin,
[t]he fact that the jury, if it believes the expert's testimony, may draw inferences which would tend to bolster the victim's credibility does not make the evidence inadmissible. It is a commonplace fact that the testimony of one witness may tend to corroborate another. Far from being improper, this is normal and is good trial strategy. (Much expert testimony will tend to show that another witness either is or is not telling the truth.... This, by itself, will not render evidence inadmissible).
Baldwin, supra, 348 Pa.Super. at 376-77, 502 A.2d at 257 citing State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983).
An application of the reasoning employed by the majority could result in the exclusion of expert testimony in many cases on the basis that its effect is to bolster, support or enhance the credibility of one witness or another. The following types of expert testimony are prime examples: (1) the expert who testifies in a drug possession case regarding the validity of the "drug courier profile" utilized by the arresting officer; (2) a medical expert who testifies that vaginal lacerations and adhesions are consistent with a complainant's version of a rape; (3) the psychiatrist who testifies in a rape case that a mentally retarded adult victim is incapable of forming consent; (4) the ballistics expert who testifies that an injury inflicted on a victim is inconsistent with the defendant's story of self defense; (5) the expert who testifies in a child abuse case that the injuries inflicted upon the victim could not be the result of an accident; (6) the expert who testifies regarding the effects of drugs or alcohol on a person fitting the defendant's weight and size as supporting the arresting officer's observations; and, (7) the expert who testifies regarding diminished mental capacity.
In the Seese and Davis decisions, the supreme court specifically disapproved, in this jurisdiction, the use of expert testimony which presumes to pass directly on the *295 veracity of a particular witness. Specifically, Seese prohibited the expert from evaluating the credibility of the victim, and Davis prohibited the expert from evaluating the veracity of the class to which the victim purportedly belonged. The Seese and Davis decisions carve out exceptions to the general principle that expert testimony is admissible in the prosecution of child sexual abuse cases. They adhere to the long established rule that an expert may not evaluate the testimony of witnesses as to credibility, for to do so would invade the province of the trier of fact. Such direct testimony on credibility supplants the jury's function. Justice Flaherty characterized the limited nature of the holding in Seese, when he stated:
[a]lthough opinion evidence is not to be permitted on the issue of a witness' credibility, there remain, of course, all of the traditional methods for developing, or attacking a witness' credibility.
Seese, supra 512 Pa. at 444, 517 A.2d at 922.
This court, however, rather than adhering to the exceptions carved out by the supreme court, has instead, with broad strokes, obliterated the fine lines drawn by that court, and in effect, rendered inadmissible relevant, material, probative and scientific testimony of an expert merely because it supports the credibility of an alleged victim. I would suggest to the contrary that within the context of a child sexual abuse case, it may impede the function of the jury not to admit such testimony. To further provide perspective in this area, an examination of the role of the expert in child sexual abuse prosecutions is instructive.
THE ROLE OF THE EXPERT
In analyzing the caselaw, one author has gleaned five basic roles which the expert may assume when testifying in a sexual abuse case.
One jurisdiction permits the psychologist to testify as to the credibility of the child's testimony regarding the occurrence of the misuse and the identity of the offender. Because the child is likely to be a witness, the expert, in *296 effect, is employed to testify as to the credibility of another witness, the expert assuming the role of adviser to the jury on the weight that they should place upon the testimony before them. Commentators have identified this role as the liberal view, and one that has not been widely adopted.
Another approach permits the expert to testify regarding the results of a psychological evaluation of the child and to determine whether the psychological status of the child is consistent with having been subjected to sexual misuse by an adult. The evaluation itself may include a determination as to whether the child's behavior patterns are consistent with a syndrome or a diagnosis. This role is directly analogous to the approach taken by most courts with regard to the admission of testimony by a treating physician. The expert will identify symptoms of psychological injury and will report the behavior patterns observed during the examination of the child. Further, the expert will present a professional opinion as to whether these observations are indicative of a diagnosis or are consistent with the occurrence of a particular event. The expert thereby indirectly supports or impeaches the veracity of other witnesses.
A third approach calls upon the expert to present the behavior patterns and psychological symptoms associated with sexual misuse, without having evaluated the victim. The expert may respond to a hypothetical question that incorporates specific facts of the case. This role for psychological experts in child sexual misuse cases is a variation of the approach that many jurisdictions take with regard to traditional medical expert testimony. Rather than serve as a gatherer of facts, as in the second role discussed above, the expert applies scientific knowledge to either the hypothetical facts presented or to the facts admitted into evidence.
The fourth approach is similar to the third in that the expert does not evaluate the child. Under this scheme, the expert's testimony is restricted to a discussion of *297 general principles, leaving the application of these principles to the trier of fact. This approach is essentially an educational model, in which the expert's testimony educated the trier of fact.
The fifth and final approach allows the expert to present the child's testimony, which was elicited by the expert under reasonably controlled conditions and preserved. The expert may assist the court in the interpretation of the preserved testimony when its meaning is not self-evident. The expert thus assumes the role of preserver of perishable testimony a role that has been assumed by the experts and accepted by the courts sub silentio. This is a necessary subcomponent of the second role identified above. The clinical expert must elicit the child's verbal and nonverbal behavior in order to evaluate the child. For this evaluation to be meaningful, the methods and conditions must be reasonably controlled. As presently conducted, however, this testimony is most often preserved in a haphazard fashion, subject to the need of the evaluator to support the evaluation.
Note, The Admissibility of Psychological Testimony in Cases Involving the Sexual Misuse of a Child, 42 U.Miami L.Rev. 1033, 1040-1042 (1988). See also, Note, Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68 B.U.L.Rev. 155 (1988).
These roles represent examples of the varied content and purpose for which expert testimony might be offered in the trial of a sexual abuse case, and they also help to illustrate the limited nature of the Seese and Davis holdings. Our supreme court in these cases has prohibited the use of an expert, no matter what role that expert may assume, from assessing a witness' ability to tell the truth.
THIS COURT'S EXTENSION OF SEESE AND DAVIS
Recognizing that Seese and Davis dealt with express testimony regarding the alleged victim's ability to verbally communicate the truth, the superior court has gone further and held that expert testimony on the behavioral dynamics *298 of sexual abuse equally invades the province of the fact-finder.
In cases where lay witnesses, perhaps a parent or teacher, were permitted to take the stand and testify as to the child's change in behavior following an alleged incident of abuse, the expert was prohibited from pulling together the behavioral testimony of the lay witnesses and giving the jury some correlation or assessment of the questioned behavior. Commonwealth v. Emge, supra; Commonwealth v. Higby, supra.
In Commonwealth v. Gibbons, supra, this court agreed with the trial court that the expert's testimony was "relevant and probative in that the jury could infer that gaps and inconsistencies in the victim's testimony stemmed from the psychological dynamics of incest rather than from fabrication or fantasy." Id. 383 Pa.Super. at 299, 556 A.2d at 916. This court went on to point out that, unlike in Emge, supra, the psychologist did not testify that the accusing child's behavior matched the behavior of known victims of sexual abuse. Nevertheless, citing Emge, the court concluded that the probative value of the expert's testimony clearly was outweighed by the prejudicial impact of admitting it. No further explanation was given for this conclusion.
In Commonwealth v. Dunkle, supra, a case very similar to the instant case, this court held that, where the child delayed in reporting the incident and failed to recall certain details of the alleged abuse, her testimony must stand alone before the jury, even though she may not be able to explain her behavior. The court determined that any attempt to introduce expert testimony, which dealt with the fact that children, sexually abused, sometimes delay in reporting the incident and sometimes are unable to recall exact dates and times because of the trauma associated with the event, is in violation of the Seese and Davis holdings. To admit such behavioral testimony, the court reasoned, would thereby allow the jury to accept the victim's version of the facts. Dunkle, supra, 385 Pa.Super. at 325-26, 561 A.2d at 9.
*299 This line of decisions tacitly, has eliminated the use of expert testimony in abuse cases no matter in what form or for what purpose it is offered. It has lumped all types of such testimony into one category, leaving the prosecution, defense counsel, and the trial court without any guidelines for determining admissibility. I would be inclined to agree with my colleagues on the inadmissibility of such testimony if the objections were grounded more soundly on relevancy or on the particular use of, or necessity for, such testimony at trial or on the qualifications of the expert or even the validity of the research data. Absent such objections, however, the jury is entitled to the evidence.
Moreover, the introduction of such expert testimony offered in child sexual abuse cases is always subject to cross examination, impeachment, and cautionary instructions.[2] These are the protections afforded to a defendant to insure that the proper weight is given to any expert testimony by the jury.
THE IMPACT OF GALLAGHER
The majority would argue that the supreme court's decision in Commonwealth v. Gallagher, supra, has extended that court's Seese and Davis holdings now to prohibit all expert psychological syndrome testimony including testimony regarding the behavioral patterns of sexual abuse victims on the basis that such testimony bolsters the credibility of the victim.
I admit to some difficulty in denying that the supreme court's treatment of the rape-crisis syndrome in Gallagher might have application to other types of syndrome testimony including the child sexual abuse accommodation syndrome.[3]*300 As discussed by Judge Tamilia in his dissent in Commonwealth v. Smith, 389 Pa.Super. 626, 567 A.2d 1080 (1989), a syndrome is a collection of symptoms, the manifestation of which may vary from case to case. A syndrome does not represent a diagnosis and therefore its use as substantive evidence of the occurrence of a particular event is always subject to scrutiny.[4]
In Gallagher, the expert testified that she examined the victim and diagnosed the victim as suffering from rape trauma syndrome. She further testified that she believed the syndrome affected the victim's ability to identify the assailant. The supreme court determined that this testimony improperly enhanced the victim's credibility in the eyes of the jury which was impermissible. See Commonwealth v. Cepull, supra, wherein Gallagher is distinguished on this basis. However, the court, specifically declined to reach the issue of whether evidence on rape trauma syndrome was sufficiently reliable to be admissible generally. Considering once again the roles of an expert which were reviewed earlier, the holding in Gallagher appears to do no more than assail the use of an expert to offer syndrome testimony as clinical diagnosis. In effect, the second approach to the role of an expert which permitted the testimony of the expert regarding the results of a psychological evaluation and the determination of whether the psychological status of the victim is consistent with having been subjected to the rape trauma has now been disapproved in this jurisdiction. The issue of whether an expert may testify generally as to behavior patterns and psychological symptoms associated with rape trauma syndrome when offered for another purpose was not decided by Gallagher. I consider this conclusion borne out by the supreme court's *301 treatment of another psychological profile type the battered woman syndrome in Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989). While I agree with the majority that the result in Stonehouse was the grant of a new trial based on ineffective assistance of counsel in failing to request an adequate jury instruction, there is little question that the lead opinion authored by Justice Larsen, and joined in by Justice Papadakos and former Justice Stout, would have found counsel ineffective for failing to present expert testimony on the battered woman syndrome. Justice Zappala in his concurrence joined in by Justice McDermott, while choosing not to reach that issue stated the following:
[a]lthough the issue was addressed by amici, the appellant has made it clear that appellant's position on the self-defense issue is not to be mischaracterized as a failure to raise the `battered woman syndrome' issue. While I recognize the import of this issue, I believe its resolution is best left to a time when the issue is squarely before us.
Stonehouse, supra, 521 Pa. at 66-67, 555 A.2d at 785. There is nothing in the majority or concurring opinion which would have precluded defense counsel on remand from offering expert testimony on the battered woman syndrome in defense of the case, and in fact three members of the court already had found prior counsel ineffective for not doing so.[5] In the interests of justice and judicial economy, if Gallagher so clearly forbade the introduction of psychological profile testimony under all circumstances then surely one of the justices of our supreme court would have so indicated. Having stated thus, if an adult defendant has the right to have a psychological condition explained to the jury by an expert, what logic deprives a child victim of this same opportunity to have her story heard. The injustice worked by the majority's holding today is further highlighted by the notion that a defendant now might offer the very same expert testimony, which we preclude the prosecution *302 from introducing, to establish that his actions were the result of his own experience of having been victimized by sexual abuse as a child.
THE TESTIMONY OF DR. DEJONG
Turning to the role of the expert in the instant case and examining the nature of his testimony and the purpose for which it was offered, I would find Dr. DeJong's testimony to represent one of the purest examples of the proper use of expert testimony in an abuse case.[6] And I readily would admit that the effect of the testimony was to enhance the credibility of the victim. As discussed by the majority, Garcia relied upon the alleged victim's delay in reporting the abuse as a central element of his defense. Counsel engaged in extensive cross-examination of the victim to highlight this fact and in its closing to the jury the defense vigorously argued the delay issue. Prompt complaint was an issue for the jury to consider in assessing and weighing the testimony of the child victim. Thus, the trial judge instructed the jury:
[a]nother aspect of sexual assault cases concerns what is known in the trade as prompt complaint.
Again there used to be reasonings and philosophies years ago that because of a particular heinous nature a sexual assault is the type of incident that immediately demanded an outcry from the person who was the alleged victim. Hence, the development of a theory called prompt complaint.
Notes of Testimony, N.T., 10/16/87 at 123-124. Obviously, the jury is entitled to all available information in confronting this issue. The trial judge, therefore, properly permitted the statistical testimony of Dr. DeJong to be considered by the jurors in order to aid them in following his instructions that "delay or failure to make prompt complaint are factors bearing upon the believability of [`the witnesses'] testimony and must be considered by you in light of all the *303 evidence in the case." Id. at 126. I cannot agree with the majority that Dr. DeJong's testimony was the same as that prohibited by the supreme court in Seese, Davis or Gallagher.
Following the victim's testimony, Dr. DeJong, a pediatrician with expertise in sexual abuse, testified to the possible reasons for the lack of physical trauma to the victims. This was one of the issues the jury had to confront. He further testified as to the statistics he compiled as Director of the Pediatric Sexual Assault Follow-Up Program at Jefferson Hospital. These statistics showed varying delays between the time that the alleged sexual abuses occurred and the time when they were reported. Some children reported alleged sexual abuse immediately, others delayed. He did not, however, offer an opinion as to the accuracy or validity of the complaints he recorded.
The majority holds that this expert testimony was improper in that it was an attempt by the Commonwealth to have the jury adopt an expert's opinion that delay was a normal occurrence in sixty-six percent of child sexual abuse cases. This is not quite accurate. Dr. DeJong did not render an opinion as to what was normal or abnormal in sexual abuse cases. He testified that two-thirds of the children who reported alleged incidents of sexual abuse did so at least twenty-four hours after those alleged incidents occurred. He did not attempt to interpret those statistics for the jury nor attach any significance to them.
Additionally, such testimony was not being offered to establish the occurrence of a fact of consequence, but rather to assist the trier of fact in weighing the probative value of a circumstantial fact. One commentator has explained,
[t]he purpose of an expert's testimony with respect to scientific information is to provide information that is beyond the common experience of the trier of fact and that will assist it in the determination of the probative value to be assigned to a circumstantial fact that bears upon a fact of consequence. An example is a child's *304 postponing disclosure of the sexual misuse for a period of months or years. A juror is likely to be incredulous upon hearing a defense attorney elicit from the prosecution's chief witness, the child victim of misuse, that the child delayed for an extended period of time before reporting the abuse to anyone. Common experience teaches us that when a child suffers an injury the child will tell an adult almost immediately. Therefore, testimony of delay in reporting an abusive event would serve as an indirect impeachment of the child's veracity. The prosecutor may call an expert to address this perception. The expert will testify that a delay in reporting an incident of sexual misuse is a common occurrence among victims of sexual assault. The defendant, through his elicitation of testimony regarding delay in the reporting of the incident of sexual misuse opened the door to the admission of the prosecution's expert testimony. The defendant placed in issue the proper interpretation of the elicited circumstantial fact: Whether there exists a stronger correlation between delay in reporting and fabrication than between delay in reporting and telling the truth. The expert's role in such a case is to provide an opinion, based upon both the statistical studies and their own clinical experience with patients other than the victim, as to which correlation has more merit.
Expert Psychological Testimony, supra at 1055-1056.
The use of expert testimony in this manner has been approved in numerous other jurisdictions.[7] As suggested *305 by one writer, such testimony has an important and relevant place in the courtroom:
[t]he defense in child sexual abuse cases often highlights some unusual aspects of the victim's behavior. These aspects typically include delays in reporting, inconsistent and partial disclosures, and recantations. The defense generally raises these issues during cross-examination of the victim, or perhaps during cross-examination of other state witnesses such as police officers or child protective service workers. This type of cross-examination is often very effective if the prosecutor does not take steps to rehabilitate these witnesses. Jurors often do not understand the dynamics of a sexually abusive relationship. They do not understand that children usually do not report sexual abuse immediately. In addition, any partial disclosure or recantation mentioned by the defense gives credence to the view, held by many prospective jurors, that children fabricate stories of sexual abuse.
When faced with this type of defense, the prosecutor should consider using expert testimony either in the case in chief, or in rebuttal. This form of testimony is fundamentally different from the expert diagnosis of child sexual abuse syndrome referred to earlier in this article. The testimony of an expert in this context is more general, and is designed to provide the jury with an analytical framework within which to evaluate the child victim's testimony. In essence, the testimony is being offered to show that the victim's behavior, while appearing to be inconsistent, may in fact be consistent with sexual abuse. However, the expert in this case is not being asked for an opinion about whether the specific child in this case is an abused child.
*306 Prosecutors have successfully admitted testimony from experts on the subject of delayed and incomplete disclosure. For example, in People v. Dunnahoo [152 Cal. App.3d 561], 199 Cal.Rptr. 796 (Cal.Ct.App.2d 1984), the defense pointed out that the two victims did not immediately tell the police about the acts committed on them by the defendant. The prosecution then used two police officers, qualified as experts in the field of child molestation, who testified that sexually molested children find it quite difficult to talk about sexual abuse. The appellate court held that this was appropriately admitted expert testimony. Similarly, in People v. Benjamin, R. [103 A.D.2d 663], 481 N.Y.S.2d 827 (1984), the court approved the admission of expert testimony concerning why a victim of sexual abuse is often reluctant to reveal the crime, particularly if it occurred in a family setting. The court pointed to the fact that the defense raised the issue of delayed reporting during the cross-examination of the victim. Moreover, the court noted that the testimony was of a general nature and did not amount to an expert opinion that in fact this specific child was a victim of molestation. In State v. Middleton [294 Or. 427], 657 P.2d 1215 (Ore.1983), prosecutors successfully admitted expert testimony that sexual abuse victims often recant their original disclosure.
The prosecutor should be on firm ground in offering this testimony, as it is admissible in most states. The expert should be counselled by the prosecutor prior to trial not to opine that the specific child is a victim of molestation. Testimony from experts that delays in reporting, incomplete disclosures, and recantations are not inconsistent with abuse should provide the jury with an appropriate knowledge of the dynamics of child sexual abuse. As one commentator has noted, the prosecution's use of expert testimony in this way is in keeping with the theory of expert witness rules and facts. See R. Roe, `Expert Testimony in Child Sexual Abuse Cases,' from Papers from a National Policy Conference on Legal Reforms *307 in Child Sexual Abuse Cases, American Bar Association, (1985).
Gardner, Prosecutors Should Think Twice Before Using Experts in Child Abuse Cases, 3 Crim.Just. 12, 15 (1988).
CONCLUSION
Admittedly, the views expressed in this dissent are not new. Rather, they have been expressed previously by other members of this court with great clarity and eloquence. See Commonwealth v. Purcell, 403 Pa.Super. 342, 589 A.2d 217 (1991), (Dissenting Opinion by Beck, J.); Commonwealth v. Cepull, supra, (Opinion by Tamilia, J.); Commonwealth v. Dunkle, supra, (Kelly, J. dissenting); Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988) (Opinion by Kelly, J.); Commonwealth v. Smith, supra, (Dissenting Opinion by Tamilia, J.); Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987), (Opinion by Kelly, J.); and, Commonwealth v. Emge, supra, (Dissenting Opinion by Brosky, J.).
The admissibility of non-traditional psychological evidence is a new and uncharted evidentiary area in many jurisdictions. Hence, the strong advocacy by several members of this court that we proceed at a more measured and calculated pace in defining admissibility standards for such evidence.[8] Certainly, such an effort would benefit far more from a review on a case by case basis, rather than, at this early date, the establishment of blanket prohibitions.[9] This is particularly so since our supreme court's rulings on the admissibility of such evidence have not been as sweeping.
Without question, expert testimony on the behavior patterns and psychological dynamics of sexual abuse victims can be very prejudicial. While, we have a grave responsibility *308 to address the many legitimate concerns regarding the use of expert testimony in this area, we also must not ignore its tremendous benefits to the truth determining process. This responsibility becomes all the more critical when such expert testimony is offered to aid the trier of fact in cases involving society's most vulnerable victims, our children. If we can determine on sound evidentiary grounds, that expert testimony is reliable, relevant, material and probative, can we afford to keep it from the jury in a case of child sexual abuse. Should not our inquiry be focused more on weighing the probative value of such testimony against its prejudicial impact in any given case.
I agree with the majority that our primary concern is to do justice. But a necessary part of that mandate involves providing a jury with the best possible evidence to allow it to decide a case correctly. Undeniably, there is presently a climate of hysteria in our society which makes the possibility of false accusation a matter of grave concern. Therefore, for the protection of both the accused and the child, the Commonwealth must be required to exercise its discretion with great caution when deciding whether to prosecute such cases. However, once the decision to prosecute is made, we must not abandon the child in the courtroom.
DEL SOLE and HUDOCK, JJ., join.
NOTES
[1] Jose Garcia and Pat Garcia were tried jointly; however, Pat Garcia is not part of this appeal.
[2] The first victim testified that she was frightened by a threat allegedly made by Pat Garcia, also that she had been previously sexually abused and did not wish to go through another court proceeding. (N.T., vol. IV, P. 55, 57.) The second victim explained that she had reported the first incident to her mother, who then told Pat Garcia to get help for Jose Garcia; the second victim continued to visit the Garcia home, as they were her baby-sitters. The second victim also testified that Garcia threatened to kill her if she reported the continuing abuse. (N.T., vol. V, P. 19-28.)
[3] DeJong also testified as to the presence and absence of physical trauma in child sexual abuse cases and the usual time frame for resolution of such trauma. (N.T., vol. VII, P. 64-69).
The remainder of DeJong's testimony discussed the typical abuser profile; the methods abusers use to cover their tracks; the percentage of abusers who are family members, friends of the family, and strangers; and the enormity of the child sexual abuse problem. (Id. at 70-74.) While our holding today renders our consideration of this portion of DeJong's testimony unnecessary, we note in passing that it was not relevant to any issue to be proven in the case. Commonwealth v. McNeely, 368 Pa.Super. 517, 520-24, 534 A.2d 778, 780-781 (1987), alloc. denied, 520 Pa. 582, 549 A.2d 915 (1988). The prejudicial impact of this testimony clearly outweighed its probative value, if any; this testimony was, therefore, inadmissible.
[4] See also, Commonwealth v. Ferguson, 377 Pa.Super. 246, 546 A.2d 1249 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989) (expert's statement that complainant's behavior and testimony were closely aligned with that of a child sexual abuse victim invaded province of jury since it was an expert assessment of the truthfulness of the child witness).
[5] See also, Commonwealth v. Zamarripa, 379 Pa.Super. 208, 549 A.2d 980 (1988) (introduction of opinion evidence of rape trauma syndrome to establish lack of consent is improper because lack of consent is issue for jury to decide).
[6] We note that the Gallagher majority's rejection of the profile evidence theory advanced by Justice Papadakos' dissent appears to reject the third and fourth approaches for the admissibility of this evidence argued for by the dissent. Dissent at 958-959. If evidence outlining the behavior profiles of rape victims is inadmissible, we fail to understand why behavior profiles of child sexual abuse victims should be admissible.
[7] The dissent admits that the testimony's effect was to enhance the credibility of the victim's testimony. Dissent at 961-962. We see no substance to the distinction which the dissent apparently wishes to draw. To admit expert testimony outlining a victim profile, but not diagnosing the victim as qualifying as a member of the profile, would fly in the face of the Gallagher opinion. The Gallagher majority made it clear that it was the purpose of enhancing victim credibility which was impermissible. Gallagher, supra 519 Pa. at 297, 547 A.2d at 358 (emphasis added).
[8] We are puzzled by the dissent's criticism of this statement. Dissent at 957. Rape is as abhorrent as child sexual abuse; the treatises cited by the dissent would indicate that the behavior of rape victims is just as unusual as the behavior exhibited by victims of child sexual abuse; yet our Supreme Court had decided that the credibility of rape victims is "within the facility of the normal juror to assess." Gallagher, supra 519 Pa. at 297, 547 A.2d at 358 (footnote omitted).
[9] The Commonwealth relies on Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987), alloc. denied, 524 Pa. 596, 568 A.2d 1246 (1989) (expert opinion regarding the general behavior and psychological characteristics of child sexual abuse victims is permitted providing expert does not directly opine as to the victim's veracity); Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988) (only expert testimony regarding the victim's credibility should be prohibited); and Commonwealth v. Cepull, 390 Pa.Super. 167, 568 A.2d 247 (1990) (generally allowing testimony as to Rape Trauma Syndrome in dicta). To the extent that these cases are inconsistent with today's reading of the relevant Supreme Court precedents, they are overruled.
The Commonwealth also cites numerous decisions from our sister states which allow the type of expert testimony at issue here. We, however, are bound by relevant Pennsylvania precedent.
[10] Further, we cannot agree with the Commonwealth's characterization of DeJong's testimony. DeJong testified as to the reasons why child sexual abuse victims delay in reporting the abuse. Such testimony involves an examination of why the victims acted as they did, not just how they acted. This attempts to address the victims' thought processes and is inadmissible.
[11] The Commonwealth also cites to a recent Supreme Court decision, Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989), which purportedly stands for the admissibility of this type of testimony because the behavior patterns of battered women are beyond the ordinary experience of jurors. We note that the plurality opinion in Stonehouse overturns the conviction due to a failure of trial counsel to request an instruction requiring the jury to consider the cumulative effects of long-term abuse when assessing the reasonableness of a battered person's claim of self-defense. Id., 521 Pa. at 57-58, 555 A.2d at 781. It was this reasoning, and not the discussion of the admissibility of expert testimony concerning battered women's syndrome, which commanded a majority of the court. See, Id., 521 Pa. at 66-67, 555 A.2d at 785 (Zappala, J. concurring). As such, we cannot consider Stonehouse proper authority allowing us to deviate from the command of Gallagher, supra.
[1] This standard on the introduction of expert testimony is different from the federal standard which permits the testimony if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." F.R.E. 702.
[2] See Miller, Cross-Examination of Expert Witnesses: Dispelling the Aura of Reliability, 42 U.Miami L.Rev. 1073, (1988); Goldstein, Psychiatrists on the Hot Seat: Discrediting Doctors by Impeachment of Their Credibility, 16 Bull.Am.Acd.Psych.L. 255, 225-34 (1988); and Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo.L.J. 429, (1985).
[3] See Summit, "The Child Sexual Abuse Accommodation Syndrome"; 7 Child and Neglect 177 (1983) wherein the syndrome sets out five characteristics commonly observed in sexually abused children: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted and unconvincing disclosure; and, (5) retraction.
[4] See Expert Psychological Testimony, supra; McCord, supra. See also Boreski, Syndrome Testimony in Child Abuse Prosecutions: The Wave of the Future, 8 St.Louis U.Pub.L.Rev. 207 (1989).
[5] We note that on remand, defendant Stonehouse was acquitted following a bench trial.
[6] The form of this testimony might be the subject of either the third or fourth approach discussed.
[7] The cases are catalogued in Smith, supra, Dissenting Opinion by Tamilia J. at Note 4, as follows:
4. See, e.g., State v. Davis, 422 N.W.2d 296 (Minn.Ct.App.1988) (court approves expert testimony to inform jury that running away from home is common in sexually abused adolescents); State v. Bailey, 89 N.C.App. 212, 365 S.E.2d 651, 655 (1988) (expert could state why child would continue to cooperate with abuser); People v. Bowker, 203 Cal.App.3d 385, 249 Cal.Rptr. 886, 891 (1988) (child sexual abuse accommodation syndrome testimony admitted to explain delay); People v. Hampton, 746 P.2d 947 (Colo.1987) (adult rape victim; rape trauma syndrome admitted to explain delay); Wheat v. State, 527 A.2d 269 (Del.1987); People v. Matlock, 153 Mich.App. 171, 395 N.W.2d 274, 277 (1986); State v. Sandberg, 406 N.W.2d 506, 511 (Minn.1987); Smith v. State, 100 Nev. 570, 688 P.2d 326, 326-27 (1984); People v. Benjamin R., 103 A.D.2d 663, 481 N.Y.S.2d 827, 831-32 (1984); State v. Hicks, 148 Vt. 459, 535 A.2d 776, 777 (1987); State v. Petrich, 101 Wash.2d 566, 683 P.2d 173, 179-80 (1984); Scadden v. State, 732 P.2d 1036, 1046 (Wyo.1987).
See also, Duckett v. State, 797 S.W.2d 906 (Tex.Cr.App.1990).
[8] See Frye v. United States, 293 F. 1013 (D.C.Cir.1923), defining admissibility standards for "new" types of scientific data and United States v. Downing, 753 F.2d 1224 (3rd Cir.1985) establishing a three prong test for the admissibility of expert testimony on the reliability of eyewitness identification.
[9] Commonwealth v. McNeely, supra, in which expert testimony was found inadmissible as not relevant in that the panel was unable to discern the purpose for which testimony was offered.
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class BRYAN J. HANKS
United States Army, Appellant
ARMY 20120597
Headquarters, Fort Hood, Texas
James L. Varley and Patricia H. Lewis, Military Judges
Colonel Stuart W. Risch, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Captain Timothy J. Kotsis, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain
Nathan S. Mammen, JA (on brief).
25 November 2014
-----------------------------------
OPINION OF THE COURT
-----------------------------------
CAMPANELLA, Judge:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of aggravated assualt with a means likely to produce grievous
bodily harm upon a child under the age of 16 years, in violation of Article 128,
Uniform Code of Military Justice, 10 U.S.C. § 928 (2006) [hereinafter UCMJ]. A
panel of officer and enlisted members sitting as a general court -martial convicted
appellant, contrary to his pleas, of maiming and aggravated assault in which
grievous bodily harm is intentionally inflicted upon a child under the age of 16
years, in violation of Articles 124 and 128, UCMJ. The panel sentenced appellant to
a dishonorable discharge and confinement for 30 months. The convening authority
HANKS—ARMY 20120597
approved only so much of the sentence as provided for confinement for 29 months
and a dishonorable discharge. 1
This case is before us for review under Article 66, UCMJ. Appellant raises
one assigned error which requires discussion but no relief.
BACKGROUND
One evening while his wife was away at work, appellant was at his home at
Fort Hood, Texas, watching his 22-month old son, JH. Around 2130, appellant was
boiling water on his stove in preparation to strip the kitchen floor. After the water
reached a boil, appellant placed the pot of water on the floor. Around the same time,
JH became restless and began to cry. Appellant tried unsuccessfully to sooth e JH.
When appellant’s attempts to stop JH from crying failed, appellant became “very
angry and lost [his] patience.” Appellant then picked JH up, brought him into the
kitchen, and holding him by his arms, forced JH’s hands into the scalding water. As
a result, JH suffered second degree burns on his hands and wrists. The burns
ultimately resulted in significant scarring and fixed deformity.
Appellant was charged with and found guilty of the following offenses:
CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 124.
THE SPECIFICATION: In that [appellant], U.S. Army,
did at or near Fort Hood, Texas, on or about 7 October
2011, maim [JH], by forcing [JH’s] hands in a pot of
scalding water.
CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128
THE SPECIFICATION: In that [appellant], U.S. Army,
did at or near Fort Hood, Texas, on or about 7 October
2011, commit an assault upon [JH], a child under the
age of 16 years of age, by forcing [JH’s] hands in a pot
of scalding water, a means likely to produce grievous
bodily harm, and did thereby intentionally inflict
1
In the addendum to the advice to the convening authority, the staff judge advocate
recommended granting appellant 30 days of clemency because of excessive post-trial
delay. The convening authority also deferred automatic forfeitures until action and
waived automatic forfeitures for an additional six months for the benefit of
appellant’s dependents.
2
HANKS—ARMY 20120597
grievous bodily harm upon [JH] to wit: burned hands
and wrists. 2
On appeal, appellant asserts the military judge abused her discretion by not
dismissing either the Specification of Charge II, aggravated assault in which
grievous bodily harm was intentionally inflicted, or the Specification of Charge I,
maiming, as an unreasonable multiplication of charges exaggerating appellant’s
criminality. We disagree.
LAW AND DISCUSSION
Multiplicity
Before reaching the issue of unreasonable multiplication of charges, we first
address the issue of multiplicity. The government asserts the aggravated assault in
this case is a lesser-included offense of maiming and is, therefore, multiplicious .3
As a threshold matter, we do not share this opinion.
“Whether an offense is a lesser-included offense is a question of law we
review de novo.” United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011) (quoting
United States v. Miller, 67 M.J. 385, 387 (C.A.A.F. 2009) (citations omitted)).
2
We note that the aggravated assault specification in this case was inartfully
drafted. While it is only a single specification, it states two offenses. The assault
with a means likely to produce death or grievous bodily harm specification is a
lesser-included offense of assault by intentionally inflicting grievous bodily harm.
See United States v. St. John, 72 M.J. 685, 687-88 (Army. Ct. Crim. App. 2013)
(examining the specifications as pleaded in applying the elements test). Here, the
government need not have expressly pleaded a lesser -included offense in a
specification stating the greater offense because, as a matter of logic, the lesser
offense was “necessarily included” by implication. UCMJ art. 79; see Rule for
Courts-Martial [hereinafter R.C.M.] 307(c)(4) discussion (“In no case should both an
offense and a lesser included offense be separately charged.”). We exercise our
discretion and affirm the greater offense. By doing so, we necessarily affirm the
lesser-included offense. The remainder of our opinion analyzes the facts and the law
based on this greater offense.
3
Notwithstanding the government’s “concession,” the government also argues
appellant waived the multiplicity issue by not raising it at trial.
3
HANKS—ARMY 20120597
The appellant was charged with maiming JH by forcing JH’s hands into a pot
of scalding water on 7 October 2011.
As alleged, the Article 124 offense requires proof of three elements:
1. The appellant inflicted injury on JH by forcing JH’s hands into a
pot of scalding water;
2. The injury seriously disfigured JH’s body, destroyed or disabled
an organ or member, or seriously diminished JH’s physical vigor by
the injury to an organ or member; and
3. The appellant inflicted this injury with the intent to cause some
injury to JH.
See Manual for Courts-Martial, United States [hereinafter MCM], (2008 ed.), pt. IV,
¶ 50.b.
As alleged, the Article 128 offense of aggravated assault in which grievous
bodily harm is intentionally inflicted requires proof of four elements:
1. The appellant assaulted JH by forcing JH’s hands into a pot
of scalding water;
2. Grievous bodily harm was inflicted upon JH;
3. The grievous bodily harm was done with unlawful force or
violence; and
4. The appellant, at the time, had the specific intent to inflict
grievous bodily harm.
See MCM, pt. IV, ¶ 54.b.(4)(b).
To determine whether a charged offense provides sufficient notice of some
other offense, both the Supreme Court and the Court of Appeals for the Armed
Forces apply an elements test which analyzes whether the elements of the lesser
offense are a subset of the charged offense:
Under the elements test, one compares the elements of each
offense. If all of the elements of offense X are also elements of
offense Y, then X is an LIO of Y. Offense Y is called the
greater offense because it contains all of the el ements of offense
X along with one or more additional elements.
4
HANKS—ARMY 20120597
United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). Put another way, the
Supreme Court in Schmuck v. United States explained: “To be necessarily included
in the greater offense the lesser must be such that it is impossible to commit the
greater without first having committed the lesser. ” 489 U.S. 705, 719 (1989)
(quotation marks and citations omitted). Normal principles of statutory construction
determine whether words used in the elements of a charged offense may include
other though not expressly stated words in the elements of a lesser-included offense.
United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010) (citing Carter v. United
States, 530 U.S. 255, 263 (2000)).
Applying these principles to the facts and circumstances of the present case,
we find that the aggravated assault with intent to commit grievous bodily harm is not
a lesser-included offense of maiming. Maiming requires only the intent to injure
generally but not a specific intent to maim. MCM, pt. IV, ¶ 50.b(c)(3). Assault, in
which grievous bodily harm is intentionally inflicted , on the other hand, requires the
specific intent to inflict grievous bodily harm. MCM, pt. IV, ¶ 54.b(4)(b)(iv). In
other words, one could commit the offense of maiming without also committing the
aggravated assault if the perpetrator maimed a victim intending to cause some injury
as required by the elements of maiming, but did not intend to cause the victim
grievous bodily harm. Likewise, one can commit an assault in which grievous
bodily harm is intentionally inflicted and not maim their victim if the bodily harm
inflicted is serious but not disfiguring or permanently destructive . These offenses
can each stand alone, as “each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).
As alleged in this case, the elements of aggravated assault are not a subset of
the charged maiming. We make this finding cognizant of the fact that that the
offense of assault in which grievous bodily harm is intentionally inflicted is listed in
the MCM as a lesser-included offense of maiming, Article 124, UCMJ. MCM, pt.
IV, ¶ 50.d.(3); see also Jones, 69 M.J. at 470-72 (rejecting the proposition that
listing a criminal offense as a lesser-included offense in the MCM necessarily makes
it so). Furthermore, in so holding, we disagree with the Navy-Marine Court of
Criminal Appeals’ holding in United States v. Allen, 59 M.J. 515, 531 (N.M. Ct.
Crim. App. 2013) (“We find that assault intentionally inflicting grievous bodily
harm is a lesser-included offense of the more serious crime of maiming the baby.”)
(citing MCM, 1995 ed., pt. IV, ¶ 50.d.(3)). We also decline to accept the
government’s concession in this regard as a panel of this court did in an earlier
decision under similar circumstances. United States v. Smith, ARMY 20110398,
2013 CCA LEXIS 514 (Army Ct. Crim. App. 26 June 2013) (“We accept the
government’s concession that under the unique facts of this case, applying the
elements test, there is no doubt the aggravated assault [by intentional infliction of
grievous bodily harm] specification was both multiplicious and a lesser -included
offense of maiming.”) (citations omitted).
5
HANKS—ARMY 20120597
Unreasonable Multiplication of Charges
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” R.C.M. 307(c)(4). The
prohibition against unreasonable multiplication of charges “addresses those features
of military law that increase the potential for overreaching in the exercise of
prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012)
(quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). In Quiroz, our
superior court listed five factors to guide our analysis of whether charges have been
unreasonably multiplied:
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or
specifications?;
(2) Is each charge and specification aimed at distinctly
separate criminal acts?;
(3) Does the number of charges and specifications
misrepresent or exaggerate the appellant's criminality?;
(4) Does the number of charges and specifications
[unreasonably] increase the appellant's punitive
exposure?; and
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
55 M.J. at 338 (internal citation and quotation marks omitted) (internal alteration
reflects the holding by CAAF in Quiroz that “unreasonably” was the appropriate
legal standard).
Applying the Quiroz factors to the facts of this case, first we note appellant
made a sentencing objection–not a findings objection–to the charging scheme at
trial. We, therefore, find this factor does not favor appellant. Second, each charged
offense is aimed at a separate and different criminal purpose. Campbell, 71 M.J. at
24. Maiming requires an act of physical injury that degrades the appearance or
function of a person in a substantially permanent nature and the precise injury
inflicted need not be intended specifically by the perpetrator. Aggravated assault in
which grievous bodily harm is intentionally inflicted requires a more demanding
specific intent which maiming does not. Appellant’s conduct consisted of a
“singular act, but each one implicated multiple and significant criminal law
interests, none necessarily dependent on the other.” Id. Third, we find the separate
charges do not exaggerate appellant’s conduct. While the two distinct and separate
6
HANKS—ARMY 20120597
charges are based on the same act, together they accurately reflect appellant’s
criminality in a way that one charge standing alone would not. We also do not find
in appellant’s favor in regards to the fourth Quiroz factor, because the military judge
merged the offenses for sentencing resulting in no increase in punitive exposure to
appellant. Lastly, we find no evidence of prosecutorial overreaching. Having
considered the Quiroz factors as applied to the appellant’s case, we do not find an
unreasonable multiplication of charges for findings .
CONCLUSION
Upon consideration of the entire record, we affirm only so much of the
Specification of Charge II as follows:
In that Private First Class Bryan J. Hanks, U.S. Army, did at
or near Fort Hood, Texas, on or about 7 October 2011,
commit an assault upon [JH], a child under the age of 16
years of age, by forcing [JH’s] hands in a pot of scalding
water and did thereby intentionally inflict grievous bodily
harm upon [JH] to wit: burned hands and wrists.
The remaining findings of guilty are affirmed.
Because the military judge merged the aggravated assault and maiming
findings for sentencing, the factors announced in United States v. Winckelmann, 73
M.J. 11, 15-16 (C.A.A.F. 2013) weigh in favor of reassessing and affirming the
sentence. Accordingly, the sentence is AFFIRMED.
Senior Judge TOZZI and Judge CELTNIEKS concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
MALCOLM
Clerk of Court
Clerk of Court
7
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Order Michigan Supreme Court
Lansing, Michigan
May 25, 2016 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Brian K. Zahra
152190 Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 152190
COA: 320318
Saginaw CC: 13-038965-FC
JEMARCUS JOVON WATKINS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the July 9, 2015
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 25, 2016
s0518
Clerk
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840 F.2d 14
Cano-Villav.U.S. Parole Commission*
NO. 87-1837
United States Court of Appeals,Fifth Circuit.
FEB 11, 1988
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MILLER v. ALABAMA
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
ALABAMA
No. 10–9646. Argued March 20, 2012—Decided June 25, 2012*
In each of these cases, a 14-year-old was convicted of murder and sen-
tenced to a mandatory term of life imprisonment without the possibil-
ity of parole. In No. 10−9647, petitioner Jackson accompanied two
other boys to a video store to commit a robbery; on the way to the
store, he learned that one of the boys was carrying a shotgun. Jack-
son stayed outside the store for most of the robbery, but after he en-
tered, one of his co-conspirators shot and killed the store clerk. Ar-
kansas charged Jackson as an adult with capital felony murder and
aggravated robbery, and a jury convicted him of both crimes. The
trial court imposed a statutorily mandated sentence of life imprison-
ment without the possibility of parole. Jackson filed a state habeas
petition, arguing that a mandatory life-without-parole term for a 14-
year-old violates the Eighth Amendment. Disagreeing, the court
granted the State’s motion to dismiss. The Arkansas Supreme Court
affirmed.
In No. 10−9646, petitioner Miller, along with a friend, beat Miller’s
neighbor and set fire to his trailer after an evening of drinking and
drug use. The neighbor died. Miller was initially charged as a juve-
nile, but his case was removed to adult court, where he was charged
with murder in the course of arson. A jury found Miller guilty, and
the trial court imposed a statutorily mandated punishment of life
without parole. The Alabama Court of Criminal Appeals affirmed,
holding that Miller’s sentence was not overly harsh when compared
to his crime, and that its mandatory nature was permissible under
——————
* Together with No. 10–9647, Jackson v. Hobbs, Director, Arkansas
Department of Correction, on certiorari to the Supreme Court of Arkan-
sas.
2 MILLER v. ALABAMA
Syllabus
the Eighth Amendment.
Held: The Eighth Amendment forbids a sentencing scheme that man-
dates life in prison without possibility of parole for juvenile homicide
offenders. Pp. 6−27.
(a) The Eighth Amendment’s prohibition of cruel and unusual pun-
ishment “guarantees individuals the right not to be subjected to ex-
cessive sanctions.” Roper v. Simmons, 543 U. S. 551, 560. That right
“flows from the basic ‘precept of justice that punishment for crime
should be graduated and proportioned’ ” to both the offender and the
offense. Ibid.
Two strands of precedent reflecting the concern with proportionate
punishment come together here. The first has adopted categorical
bans on sentencing practices based on mismatches between the cul-
pability of a class of offenders and the severity of a penalty. See, e.g.,
Kennedy v. Louisiana, 554 U. S. 407. Several cases in this group
have specially focused on juvenile offenders, because of their lesser
culpability. Thus, Roper v. Simmons held that the Eighth Amend-
ment bars capital punishment for children, and Graham v. Florida,
560 U. S. ___, concluded that the Amendment prohibits a sentence of
life without the possibility of parole for a juvenile convicted of a non-
homicide offense. Graham further likened life without parole for ju-
veniles to the death penalty, thereby evoking a second line of cases.
In those decisions, this Court has required sentencing authorities to
consider the characteristics of a defendant and the details of his of-
fense before sentencing him to death. See, e.g., Woodson v. North
Carolina, 428 U. S. 280 (plurality opinion). Here, the confluence of
these two lines of precedent leads to the conclusion that mandatory
life without parole for juveniles violates the Eighth Amendment.
As to the first set of cases: Roper and Graham establish that chil-
dren are constitutionally different from adults for sentencing purpos-
es. Their “ ‘lack of maturity’ ” and “ ‘underdeveloped sense of respon-
sibility’ ” lead to recklessness, impulsivity, and heedless risk-taking.
Roper, 543 U. S., at 569. They “are more vulnerable . . . to negative
influences and outside pressures,” including from their family and
peers; they have limited “contro[l] over their own environment” and
lack the ability to extricate themselves from horrific, crime-producing
settings. Ibid. And because a child’s character is not as “well
formed” as an adult’s, his traits are “less fixed” and his actions are
less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570.
Roper and Graham emphasized that the distinctive attributes of
youth diminish the penological justifications for imposing the harsh-
est sentences on juvenile offenders, even when they commit terrible
crimes.
While Graham’s flat ban on life without parole was for nonhomi-
Cite as: 567 U. S. ____ (2012) 3
Syllabus
cide crimes, nothing that Graham said about children is crime-
specific. Thus, its reasoning implicates any life-without-parole sen-
tence for a juvenile, even as its categorical bar relates only to non-
homicide offenses. Most fundamentally, Graham insists that youth
matters in determining the appropriateness of a lifetime of incarcera-
tion without the possibility of parole. The mandatory penalty
schemes at issue here, however, prevent the sentencer from consider-
ing youth and from assessing whether the law’s harshest term of im-
prisonment proportionately punishes a juvenile offender. This con-
travenes Graham’s (and also Roper’s) foundational principle: that
imposition of a State’s most severe penalties on juvenile offenders
cannot proceed as though they were not children.
Graham also likened life-without-parole sentences for juveniles to
the death penalty. That decision recognized that life-without-parole
sentences “share some characteristics with death sentences that are
shared by no other sentences.” 560 U. S., at ___. And it treated life
without parole for juveniles like this Court’s cases treat the death
penalty, imposing a categorical bar on its imposition for nonhomicide
offenses. By likening life-without-parole sentences for juveniles to
the death penalty, Graham makes relevant this Court’s cases de-
manding individualized sentencing in capital cases. In particular,
those cases have emphasized that sentencers must be able to consid-
er the mitigating qualities of youth. In light of Graham’s reasoning,
these decisions also show the flaws of imposing mandatory life-
without-parole sentences on juvenile homicide offenders. Pp. 6−17.
(b) The counterarguments of Alabama and Arkansas are unpersua-
sive. Pp. 18–27.
(1) The States first contend that Harmelin v. Michigan, 501
U. S. 957, forecloses a holding that mandatory life-without-parole
sentences for juveniles violate the Eighth Amendment. Harmelin de-
clined to extend the individualized sentencing requirement to non-
capital cases “because of the qualitative difference between death and
all other penalties.” Id., at 1006 (KENNEDY, J., concurring in part and
concurring in judgment). But Harmelin had nothing to do with chil-
dren, and did not purport to apply to juvenile offenders. Indeed,
since Harmelin, this Court has held on multiple occasions that sen-
tencing practices that are permissible for adults may not be so for
children. See Roper, 543 U. S. 551; Graham, 560 U. S ___.
The States next contend that mandatory life-without-parole terms
for juveniles cannot be unconstitutional because 29 jurisdictions im-
pose them on at least some children convicted of murder. In consid-
ering categorical bars to the death penalty and life without parole,
this Court asks as part of the analysis whether legislative enact-
ments and actual sentencing practices show a national consensus
4 MILLER v. ALABAMA
Syllabus
against a sentence for a particular class of offenders. But where, as
here, this Court does not categorically bar a penalty, but instead re-
quires only that a sentencer follow a certain process, this Court has
not scrutinized or relied on legislative enactments in the same way.
See, e.g., Sumner v. Schuman, 483 U. S. 66.
In any event, the “objective indicia of society’s standards,” Graham,
560 U. S., at ___, that the States offer do not distinguish these cases
from others holding that a sentencing practice violates the Eighth
Amendment. Fewer States impose mandatory life-without-parole
sentences on juvenile homicide offenders than authorized the penalty
(life-without-parole for nonhomicide offenders) that this Court invali-
dated in Graham. And as Graham and Thompson v. Oklahoma, 487
U. S. 815, explain, simply counting legislative enactments can pre-
sent a distorted view. In those cases, as here, the relevant penalty
applied to juveniles based on two separate provisions: One allowed
the transfer of certain juvenile offenders to adult court, while another
set out penalties for any and all individuals tried there. In those cir-
cumstances, this Court reasoned, it was impossible to say whether a
legislature had endorsed a given penalty for children (or would do so
if presented with the choice). The same is true here. Pp. 18–25.
(2) The States next argue that courts and prosecutors suffi-
ciently consider a juvenile defendant’s age, as well as his background
and the circumstances of his crime, when deciding whether to try him
as an adult. But this argument ignores that many States use manda-
tory transfer systems. In addition, some lodge the decision in the
hands of the prosecutors, rather than courts. And even where judges
have transfer-stage discretion, it has limited utility, because the deci-
sionmaker typically will have only partial information about the child
or the circumstances of his offense. Finally, because of the limited
sentencing options in some juvenile courts, the transfer decision may
present a choice between a light sentence as a juvenile and standard
sentencing as an adult. It cannot substitute for discretion at post-
trial sentencing. Pp. 25−27.
No. 10−9646, 63 So. 3d 676, and No. 10−9647, 2011 Ark. 49, ___ S. W.
3d ___, reversed and remanded.
KAGAN, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. BREYER, J., filed a con-
curring opinion, in which SOTOMAYOR, J., joined. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.
ALITO, J., filed a dissenting opinion, in which SCALIA, J., joined.
Cite as: 567 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 10–9646 and 10–9647
_________________
EVAN MILLER, PETITIONER
10–9646 v.
ALABAMA
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF ALABAMA
KUNTRELL JACKSON, PETITIONER
10–9647 v.
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF ARKANSAS
[June 25, 2012]
JUSTICE KAGAN delivered the opinion of the Court.
The two 14-year-old offenders in these cases were convict-
ed of murder and sentenced to life imprisonment without
the possibility of parole. In neither case did the sentenc-
ing authority have any discretion to impose a different
punishment. State law mandated that each juvenile die
in prison even if a judge or jury would have thought that
his youth and its attendant characteristics, along with the
nature of his crime, made a lesser sentence (for example,
life with the possibility of parole) more appropriate. Such
a scheme prevents those meting out punishment from
considering a juvenile’s “lessened culpability” and greater
“capacity for change,” Graham v. Florida, 560 U. S. ___,
2 MILLER v. ALABAMA
Opinion of the Court
___ (2010) (slip op., at 17, 23), and runs afoul of our cases’
requirement of individualized sentencing for defendants
facing the most serious penalties. We therefore hold that
mandatory life without parole for those under the age of
18 at the time of their crimes violates the Eighth Amend-
ment’s prohibition on “cruel and unusual punishments.”
I
A
In November 1999, petitioner Kuntrell Jackson, then 14
years old, and two other boys decided to rob a video store.
En route to the store, Jackson learned that one of the
boys, Derrick Shields, was carrying a sawed-off shotgun in
his coat sleeve. Jackson decided to stay outside when the
two other boys entered the store. Inside, Shields pointed
the gun at the store clerk, Laurie Troup, and demanded
that she “give up the money.” Jackson v. State, 359 Ark.
87, 89, 194 S. W. 3d 757, 759 (2004) (internal quotation
marks omitted). Troup refused. A few moments later,
Jackson went into the store to find Shields continuing to
demand money. At trial, the parties disputed whether
Jackson warned Troup that “[w]e ain’t playin’,” or instead
told his friends, “I thought you all was playin’.” Id., at 91,
194 S. W. 3d, at 760 (internal quotation marks omitted).
When Troup threatened to call the police, Shields shot and
killed her. The three boys fled empty-handed. See id., at
89–92, 194 S. W. 3d, at 758–760.
Arkansas law gives prosecutors discretion to charge 14-
year-olds as adults when they are alleged to have commit-
ted certain serious offenses. See Ark. Code Ann. §9–27–
318(c)(2) (1998). The prosecutor here exercised that au-
thority by charging Jackson with capital felony murder
and aggravated robbery. Jackson moved to transfer the
case to juvenile court, but after considering the alleged
facts of the crime, a psychiatrist’s examination, and Jack-
son’s juvenile arrest history (shoplifting and several inci-
Cite as: 567 U. S. ____ (2012) 3
Opinion of the Court
dents of car theft), the trial court denied the motion, and
an appellate court affirmed. See Jackson v. State, No.
02–535, 2003 WL 193412, *1 (Ark. App., Jan. 29, 2003);
§§9–27–318(d), (e). A jury later convicted Jackson of both
crimes. Noting that “in view of [the] verdict, there’s only
one possible punishment,” the judge sentenced Jackson to
life without parole. App. in No. 10–9647, p. 55 (hereinaf-
ter Jackson App.); see Ark. Code Ann. §5–4–104(b) (1997)
(“A defendant convicted of capital murder or treason shall
be sentenced to death or life imprisonment without pa-
role”).1 Jackson did not challenge the sentence on appeal,
and the Arkansas Supreme Court affirmed the convic-
tions. See 359 Ark. 87, 194 S. W. 3d 757.
Following Roper v. Simmons, 543 U. S. 551 (2005), in
which this Court invalidated the death penalty for all
juvenile offenders under the age of 18, Jackson filed a
state petition for habeas corpus. He argued, based on
Roper’s reasoning, that a mandatory sentence of life with-
out parole for a 14-year-old also violates the Eighth
Amendment. The circuit court rejected that argument and
granted the State’s motion to dismiss. See Jackson App.
72–76. While that ruling was on appeal, this Court held
in Graham v. Florida that life without parole violates the
Eighth Amendment when imposed on juvenile nonhomi-
cide offenders. After the parties filed briefs addressing
that decision, the Arkansas Supreme Court affirmed the
dismissal of Jackson’s petition. See Jackson v. Norris,
2011 Ark. 49, ___ S. W. 3d ___. The majority found that
Roper and Graham were “narrowly tailored” to their con-
texts: “death-penalty cases involving a juvenile and life-
imprisonment-without-parole cases for nonhomicide of-
——————
1 Jackson was ineligible for the death penalty under Thompson v.
Oklahoma, 487 U. S. 815 (1988) (plurality opinion), which held that
capital punishment of offenders under the age of 16 violates the Eighth
Amendment.
4 MILLER v. ALABAMA
Opinion of the Court
fenses involving a juvenile.” Id., at 5, ___ S. W. 3d, at ___.
Two justices dissented. They noted that Jackson was not
the shooter and that “any evidence of intent to kill was
severely lacking.” Id., at 10, ___ S. W. 3d, at ___
(Danielson, J., dissenting). And they argued that Jack-
son’s mandatory sentence ran afoul of Graham’s admoni-
tion that “ ‘[a]n offender’s age is relevant to the Eighth
Amendment, and criminal procedure laws that fail to take
defendants’ youthfulness into account at all would be
flawed.’ ” Id., at 10–11, ___ S. W. 3d, at ___ (quoting Gra-
ham, 560 U. S., at ___ (slip op., at 25)).2
B
Like Jackson, petitioner Evan Miller was 14 years old at
the time of his crime. Miller had by then been in and out
of foster care because his mother suffered from alcoholism
and drug addiction and his stepfather abused him. Miller,
too, regularly used drugs and alcohol; and he had at-
tempted suicide four times, the first when he was six years
old. See E. J. M. v. State, 928 So. 2d 1077, 1081 (Ala.
Crim. App. 2004) (Cobb, J., concurring in result); App. in
No. 10–9646, pp. 26–28 (hereinafter Miller App.).
One night in 2003, Miller was at home with a friend,
Colby Smith, when a neighbor, Cole Cannon, came to
make a drug deal with Miller’s mother. See 6 Record in
No. 10–9646, p. 1004. The two boys followed Cannon back
to his trailer, where all three smoked marijuana and
——————
2 For the first time in this Court, Arkansas contends that Jackson’s
sentence was not mandatory. On its view, state law then in effect
allowed the trial judge to suspend the life-without-parole sentence and
commit Jackson to the Department of Human Services for a “training-
school program,” at the end of which he could be placed on probation.
Brief for Respondent in No. 10–9647, pp. 36–37 (hereinafter Arkansas
Brief) (citing Ark. Code Ann. §12–28–403(b)(2) (1999)). But Arkansas
never raised that objection in the state courts, and they treated Jack-
son’s sentence as mandatory. We abide by that interpretation of state
law. See, e.g., Mullaney v. Wilbur, 421 U. S. 684, 690–691 (1975).
Cite as: 567 U. S. ____ (2012) 5
Opinion of the Court
played drinking games. When Cannon passed out, Miller
stole his wallet, splitting about $300 with Smith. Miller
then tried to put the wallet back in Cannon’s pocket, but
Cannon awoke and grabbed Miller by the throat. Smith
hit Cannon with a nearby baseball bat, and once released,
Miller grabbed the bat and repeatedly struck Cannon with
it. Miller placed a sheet over Cannon’s head, told him
“ ‘I am God, I’ve come to take your life,’ ” and delivered one
more blow. Miller v. State, 63 So. 3d 676, 689 (Ala. Crim.
App. 2010). The boys then retreated to Miller’s trailer, but
soon decided to return to Cannon’s to cover up evidence of
their crime. Once there, they lit two fires. Cannon even-
tually died from his injuries and smoke inhalation. See
id., at 683–685, 689.
Alabama law required that Miller initially be charged as
a juvenile, but allowed the District Attorney to seek re-
moval of the case to adult court. See Ala. Code §12–15–34
(1977). The D. A. did so, and the juvenile court agreed
to the transfer after a hearing. Citing the nature of the
crime, Miller’s “mental maturity,” and his prior juvenile
offenses (truancy and “criminal mischief”), the Alabama
Court of Criminal Appeals affirmed. E. J. M. v. State, No.
CR–03–0915, pp. 5–7 (Aug. 27, 2004) (unpublished memo-
randum).3 The State accordingly charged Miller as an
adult with murder in the course of arson. That crime (like
capital murder in Arkansas) carries a mandatory mini-
——————
3 The Court of Criminal Appeals also affirmed the juvenile court’s
denial of Miller’s request for funds to hire his own mental expert for the
transfer hearing. The court pointed out that under governing Alabama
Supreme Court precedent, “the procedural requirements of a trial do
not ordinarily apply” to those hearings. E. J. M. v. State, 928 So. 2d
1077 (2004) (Cobb, J., concurring in result) (internal quotation marks
omitted). In a separate opinion, Judge Cobb agreed on the reigning
precedent, but urged the State Supreme Court to revisit the question in
light of transfer hearings’ importance. See id., at 1081 (“[A]lthough
later mental evaluation as an adult affords some semblance of proce-
dural due process, it is, in effect, too little, too late”).
6 MILLER v. ALABAMA
Opinion of the Court
mum punishment of life without parole. See Ala. Code
§§13A–5–40(9), 13A–6–2(c) (1982).
Relying in significant part on testimony from Smith,
who had pleaded to a lesser offense, a jury found Miller
guilty. He was therefore sentenced to life without the
possibility of parole. The Alabama Court of Criminal
Appeals affirmed, ruling that life without parole was “not
overly harsh when compared to the crime” and that the
mandatory nature of the sentencing scheme was permissi-
ble under the Eighth Amendment. 63 So. 3d, at 690; see
id., at 686–691. The Alabama Supreme Court denied
review.
We granted certiorari in both cases, see 565 U. S. ___
(2011) (No. 10–9646); 565 U. S. ___ (2011) (No. 10–9647),
and now reverse.
II
The Eighth Amendment’s prohibition of cruel and un-
usual punishment “guarantees individuals the right not to
be subjected to excessive sanctions.” Roper, 543 U. S., at
560. That right, we have explained, “flows from the basic
‘precept of justice that punishment for crime should be
graduated and proportioned’ ” to both the offender and the
offense. Ibid. (quoting Weems v. United States, 217 U. S.
349, 367 (1910)). As we noted the last time we consid-
ered life-without-parole sentences imposed on juveniles,
“[t]he concept of proportionality is central to the Eighth
Amendment.” Graham, 560 U. S., at ___ (slip op., at 8).
And we view that concept less through a historical prism
than according to “ ‘the evolving standards of decency
that mark the progress of a maturing society.’ ” Estelle v.
Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles,
356 U. S. 86, 101 (1958) (plurality opinion)).
The cases before us implicate two strands of precedent
reflecting our concern with proportionate punishment.
The first has adopted categorical bans on sentencing
Cite as: 567 U. S. ____ (2012) 7
Opinion of the Court
practices based on mismatches between the culpability of
a class of offenders and the severity of a penalty. See
Graham, 560 U. S., at ___ (slip op., at 9–10) (listing cases).
So, for example, we have held that imposing the death
penalty for nonhomicide crimes against individuals, or
imposing it on mentally retarded defendants, violates the
Eighth Amendment. See Kennedy v. Louisiana, 554 U. S.
407 (2008); Atkins v. Virginia, 536 U. S. 304 (2002). Sev-
eral of the cases in this group have specially focused on
juvenile offenders, because of their lesser culpability.
Thus, Roper held that the Eighth Amendment bars capital
punishment for children, and Graham concluded that the
Amendment also prohibits a sentence of life without the
possibility of parole for a child who committed a nonhomi-
cide offense. Graham further likened life without parole
for juveniles to the death penalty itself, thereby evoking
a second line of our precedents. In those cases, we have
prohibited mandatory imposition of capital punishment,
requiring that sentencing authorities consider the charac-
teristics of a defendant and the details of his offense before
sentencing him to death. See Woodson v. North Carolina,
428 U. S. 280 (1976) (plurality opinion); Lockett v. Ohio,
438 U. S. 586 (1978). Here, the confluence of these two
lines of precedent leads to the conclusion that mandatory
life-without-parole sentences for juveniles violate the
Eighth Amendment.4
——————
4 The three dissenting opinions here each take issue with some or all
of those precedents. See post, at 5–6 (opinion of ROBERTS, C. J.); post,
at 1–6 (opinion of THOMAS, J.); post, at 1–4 (opinion of ALITO, J.). That
is not surprising: their authors (and joiner) each dissented from some or
all of those precedents. See, e.g., Kennedy, 554 U. S., at 447 (ALITO, J.,
joined by ROBERTS, C. J., and SCALIA and THOMAS, JJ., dissenting);
Roper, 543 U. S., at 607 (SCALIA, J., joined by THOMAS, J., dissenting);
Atkins, 536 U. S., at 337 (SCALIA, J., joined by THOMAS, J., dissent-
ing); Thompson, 487 U. S., at 859 ((SCALIA, J., dissenting); Graham v.
Collins, 506 U. S. 461, 487 (1993) (THOMAS, J., concurring) (contending
that Woodson was wrongly decided). In particular, each disagreed with
8 MILLER v. ALABAMA
Opinion of the Court
To start with the first set of cases: Roper and Graham
establish that children are constitutionally different from
adults for purposes of sentencing. Because juveniles have
diminished culpability and greater prospects for reform,
we explained, “they are less deserving of the most severe
punishments.” Graham, 560 U. S., at ___ (slip op., at 17).
Those cases relied on three significant gaps between juve-
niles and adults. First, children have a “ ‘lack of maturity
and an underdeveloped sense of responsibility,’ ” leading to
recklessness, impulsivity, and heedless risk-taking. Roper,
543 U. S., at 569. Second, children “are more vulner-
able . . . to negative influences and outside pressures,”
including from their family and peers; they have limited
“contro[l] over their own environment” and lack the ability
to extricate themselves from horrific, crime-producing
settings. Ibid. And third, a child’s character is not as
“well formed” as an adult’s; his traits are “less fixed” and
his actions less likely to be “evidence of irretrievabl[e]
deprav[ity].” Id., at 570.
Our decisions rested not only on common sense—on
what “any parent knows”—but on science and social sci-
ence as well. Id., at 569. In Roper, we cited studies
showing that “‘[o]nly a relatively small proportion of adoles-
cents’ ” who engage in illegal activity “ ‘develop entrenched
patterns of problem behavior.’ ” Id., at 570 (quoting Stein-
berg & Scott, Less Guilty by Reason of Adolescence: De-
velopmental Immaturity, Diminished Responsibility, and
the Juvenile Death Penalty, 58 Am. Psychologist 1009,
——————
the majority’s reasoning in Graham, which is the foundation stone of
our analysis. See Graham, 560 U. S., at ___ (ROBERTS, C. J., concurring
in judgment) (slip op., at 1); id., at ___ (THOMAS, J., joined by SCALIA
and ALITO, JJ., dissenting) (slip op., at 1–25); id., at ___ (ALITO, J.,
dissenting) (slip op., at 1). While the dissents seek to relitigate old
Eighth Amendment battles, repeating many arguments this Court has
previously (and often) rejected, we apply the logic of Roper, Graham,
and our individualized sentencing decisions to these two cases.
Cite as: 567 U. S. ____ (2012) 9
Opinion of the Court
1014 (2003)). And in Graham, we noted that “develop-
ments in psychology and brain science continue to show
fundamental differences between juvenile and adult
minds”—for example, in “parts of the brain involved in
behavior control.” 560 U. S., at ___ (slip op., at 17).5 We
reasoned that those findings—of transient rashness, pro-
clivity for risk, and inability to assess consequences—both
lessened a child’s “moral culpability” and enhanced the
prospect that, as the years go by and neurological devel-
opment occurs, his “ ‘deficiencies will be reformed.’ ” Id., at
___ (slip op., at 18) (quoting Roper, 543 U. S., at 570).
Roper and Graham emphasized that the distinctive at-
tributes of youth diminish the penological justifications
for imposing the harshest sentences on juvenile offenders,
even when they commit terrible crimes. Because “ ‘[t]he
heart of the retribution rationale’ ” relates to an offender’s
blameworthiness, “ ‘the case for retribution is not as strong
with a minor as with an adult.’ ” Graham, 560 U. S., at
___ (slip op., at 20–21) (quoting Tison v. Arizona, 481 U. S.
137, 149 (1987); Roper, 543 U. S., at 571). Nor can deter-
rence do the work in this context, because “ ‘the same
characteristics that render juveniles less culpable than
adults’ ”—their immaturity, recklessness, and impetuos-
ity—make them less likely to consider potential punish-
——————
5 The evidence presented to us in these cases indicates that the sci-
ence and social science supporting Roper’s and Graham’s conclusions
have become even stronger. See, e.g., Brief for American Psychologi-
cal Association et al. as Amici Curiae 3 (“[A]n ever-growing body of
research in developmental psychology and neuroscience continues to
confirm and strengthen the Court’s conclusions”); id., at 4 (“It is in-
creasingly clear that adolescent brains are not yet fully mature in
regions and systems related to higher-order executive functions such as
impulse control, planning ahead, and risk avoidance”); Brief for J.
Lawrence Aber et al. as Amici Curiae 12–28 (discussing post-Graham
studies); id., at 26–27 (“Numerous studies post-Graham indicate that
exposure to deviant peers leads to increased deviant behavior and is a
consistent predictor of adolescent delinquency” (footnote omitted)).
10 MILLER v. ALABAMA
Opinion of the Court
ment. Graham, 560 U. S., at ___ (slip op., at 21) (quoting
Roper, 543 U. S., at 571). Similarly, incapacitation could
not support the life-without-parole sentence in Graham:
Deciding that a “juvenile offender forever will be a danger
to society” would require “mak[ing] a judgment that [he]
is incorrigible”—but “ ‘incorrigibility is inconsistent with
youth.’ ” 560 U. S., at ___ (slip op., at 22) (quoting Work-
man v. Commonwealth, 429 S. W. 2d 374, 378 (Ky. App.
1968)). And for the same reason, rehabilitation could not
justify that sentence. Life without parole “forswears
altogether the rehabilitative ideal.” Graham, 560 U. S., at
___ (slip op., at 23). It reflects “an irrevocable judgment
about [an offender’s] value and place in society,” at odds
with a child’s capacity for change. Ibid.
Graham concluded from this analysis that life-without-
parole sentences, like capital punishment, may violate
the Eighth Amendment when imposed on children. To be
sure, Graham’s flat ban on life without parole applied only
to nonhomicide crimes, and the Court took care to distin-
guish those offenses from murder, based on both moral
culpability and consequential harm. See id., at ___ (slip
op., at 18). But none of what it said about children—about
their distinctive (and transitory) mental traits and en-
vironmental vulnerabilities—is crime-specific. Those
features are evident in the same way, and to the same de-
gree, when (as in both cases here) a botched robbery turns
into a killing. So Graham’s reasoning implicates any life-
without-parole sentence imposed on a juvenile, even as its
categorical bar relates only to nonhomicide offenses.
Most fundamentally, Graham insists that youth matters
in determining the appropriateness of a lifetime of incar-
ceration without the possibility of parole. In the circum-
stances there, juvenile status precluded a life-without-
parole sentence, even though an adult could receive it for a
similar crime. And in other contexts as well, the charac-
teristics of youth, and the way they weaken rationales for
Cite as: 567 U. S. ____ (2012) 11
Opinion of the Court
punishment, can render a life-without-parole sentence
disproportionate. Cf. id., at ___ (slip op., at 20–23) (gener-
ally doubting the penological justifications for imposing
life without parole on juveniles). “An offender’s age,” we
made clear in Graham, “is relevant to the Eighth Amend-
ment,” and so “criminal procedure laws that fail to take
defendants’ youthfulness into account at all would be
flawed.” Id., at ___ (slip op., at 25). THE CHIEF JUSTICE,
concurring in the judgment, made a similar point. Al-
though rejecting a categorical bar on life-without-parole
sentences for juveniles, he acknowledged “Roper’s conclu-
sion that juveniles are typically less culpable than adults,”
and accordingly wrote that “an offender’s juvenile status
can play a central role” in considering a sentence’s propor-
tionality. Id., at ___ (slip op., at 5–6); see id., at ___ (slip
op., at 12) (Graham’s “youth is one factor, among others,
that should be considered in deciding whether his pun-
ishment was unconstitutionally excessive”).6
But the mandatory penalty schemes at issue here pre-
vent the sentencer from taking account of these central
considerations. By removing youth from the balance—
by subjecting a juvenile to the same life-without-parole
sentence applicable to an adult—these laws prohibit a
sentencing authority from assessing whether the law’s
harshest term of imprisonment proportionately punishes a
juvenile offender. That contravenes Graham’s (and also
Roper’s) foundational principle: that imposition of a State’s
——————
6 In discussing Graham, the dissents essentially ignore all of this
reasoning. See post, at 3–6 (opinion of ROBERTS, C. J.); post, at 4
(opinion of ALITO, J.). Indeed, THE CHIEF JUSTICE ignores the points
made in his own concurring opinion. The only part of Graham that the
dissents see fit to note is the distinction it drew between homicide and
nonhomicide offenses. See post, at 7–8 (opinion of ROBERTS, C. J.); post,
at 4 (opinion of ALITO, J.). But contrary to the dissents’ charge, our
decision today retains that distinction: Graham established one rule (a
flat ban) for nonhomicide offenses, while we set out a different one
(individualized sentencing) for homicide offenses.
12 MILLER v. ALABAMA
Opinion of the Court
most severe penalties on juvenile offenders cannot proceed
as though they were not children.
And Graham makes plain these mandatory schemes’
defects in another way: by likening life-without-parole
sentences imposed on juveniles to the death penalty itself.
Life-without-parole terms, the Court wrote, “share some
characteristics with death sentences that are shared by no
other sentences.” 560 U. S., at ___ (slip op., at 19). Im-
prisoning an offender until he dies alters the remainder of
his life “by a forfeiture that is irrevocable.” Ibid. (citing
Solem v. Helm, 463 U. S. 277, 300–301 (1983)). And this
lengthiest possible incarceration is an “especially harsh
punishment for a juvenile,” because he will almost inevi-
tably serve “more years and a greater percentage of his life
in prison than an adult offender.” Graham, 560 U. S., at
___ (slip op., at 19–20). The penalty when imposed on a
teenager, as compared with an older person, is therefore
“the same . . . in name only.” Id., at ___ (slip op., at 20).
All of that suggested a distinctive set of legal rules: In part
because we viewed this ultimate penalty for juveniles as
akin to the death penalty, we treated it similarly to that
most severe punishment. We imposed a categorical ban on
the sentence’s use, in a way unprecedented for a term of
imprisonment. See id., at ___ (slip op., at 9); id., at ___
(THOMAS, J., dissenting) (slip op., at 7) (“For the first time
in its history, the Court declares an entire class of offend-
ers immune from a noncapital sentence using the categori-
cal approach it previously reserved for death penalty cases
alone”). And the bar we adopted mirrored a proscription
first established in the death penalty context—that the
punishment cannot be imposed for any nonhomicide
crimes against individuals. See Kennedy, 554 U. S. 407;
Coker v. Georgia, 433 U. S. 584 (1977).
That correspondence—Graham’s “[t]reat[ment] [of]
juvenile life sentences as analogous to capital punish-
ment,” 560 U. S., at ___ (ROBERTS, C. J., concurring in
Cite as: 567 U. S. ____ (2012) 13
Opinion of the Court
judgment) (slip op., at 5)—makes relevant here a second
line of our precedents, demanding individualized sentenc-
ing when imposing the death penalty. In Woodson, 428
U. S. 280, we held that a statute mandating a death sen-
tence for first-degree murder violated the Eighth Amend-
ment. We thought the mandatory scheme flawed because
it gave no significance to “the character and record of
the individual offender or the circumstances” of the offense,
and “exclud[ed] from consideration . . . the possibility of
compassionate or mitigating factors.” Id., at 304. Subse-
quent decisions have elaborated on the requirement that
capital defendants have an opportunity to advance, and
the judge or jury a chance to assess, any mitigating fac-
tors, so that the death penalty is reserved only for the
most culpable defendants committing the most serious
offenses. See, e.g., Sumner v. Shuman, 483 U. S. 66, 74–
76 (1987); Eddings v. Oklahoma, 455 U. S. 104, 110–112
(1982); Lockett, 438 U. S., at 597–609 (plurality opinion).
Of special pertinence here, we insisted in these rulings
that a sentencer have the ability to consider the “mitigat-
ing qualities of youth.” Johnson v. Texas, 509 U. S. 350,
367 (1993). Everything we said in Roper and Graham
about that stage of life also appears in these decisions. As
we observed, “youth is more than a chronological fact.”
Eddings, 455 U. S., at 115. It is a time of immaturity, ir-
responsibility, “impetuousness[,] and recklessness.” John-
son, 509 U. S., at 368. It is a moment and “condition
of life when a person may be most susceptible to influence
and to psychological damage.” Eddings, 455 U. S., at 115.
And its “signature qualities” are all “transient.” Johnson,
509 U. S., at 368. Eddings is especially on point. There, a
16-year-old shot a police officer point-blank and killed
him. We invalidated his death sentence because the judge
did not consider evidence of his neglectful and violent
family background (including his mother’s drug abuse and
his father’s physical abuse) and his emotional disturbance.
14 MILLER v. ALABAMA
Opinion of the Court
We found that evidence “particularly relevant”—more so
than it would have been in the case of an adult offender.
455 U. S., at 115. We held: “[J]ust as the chronological age
of a minor is itself a relevant mitigating factor of great
weight, so must the background and mental and emotional
development of a youthful defendant be duly considered”
in assessing his culpability. Id., at 116.
In light of Graham’s reasoning, these decisions too show
the flaws of imposing mandatory life-without-parole sen-
tences on juvenile homicide offenders. Such mandatory
penalties, by their nature, preclude a sentencer from
taking account of an offender’s age and the wealth of
characteristics and circumstances attendant to it. Under
these schemes, every juvenile will receive the same sen-
tence as every other—the 17-year-old and the 14-year-old,
the shooter and the accomplice, the child from a stable
household and the child from a chaotic and abusive one.
And still worse, each juvenile (including these two 14-
year-olds) will receive the same sentence as the vast ma-
jority of adults committing similar homicide offenses—but
really, as Graham noted, a greater sentence than those
adults will serve.7 In meting out the death penalty, the
elision of all these differences would be strictly forbidden.
And once again, Graham indicates that a similar rule
should apply when a juvenile confronts a sentence of life
(and death) in prison.
So Graham and Roper and our individualized sentenc-
——————
7 Although adults are subject as well to the death penalty in many
jurisdictions, very few offenders actually receive that sentence. See,
e.g., Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M.
Durose, & D. Farole, Felony Sentences in State Courts 2006—
Statistical Tables, p. 28 (Table 4.4) (rev. Nov. 22, 2010). So in practice,
the sentencing schemes at issue here result in juvenile homicide
offenders receiving the same nominal punishment as almost all adults,
even though the two classes differ significantly in moral culpability and
capacity for change.
Cite as: 567 U. S. ____ (2012) 15
Opinion of the Court
ing cases alike teach that in imposing a State’s harshest
penalties, a sentencer misses too much if he treats every
child as an adult. To recap: Mandatory life without parole
for a juvenile precludes consideration of his chronological
age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and conse-
quences. It prevents taking into account the family and
home environment that surrounds him—and from which
he cannot usually extricate himself—no matter how bru-
tal or dysfunctional. It neglects the circumstances of the
homicide offense, including the extent of his participation
in the conduct and the way familial and peer pressures
may have affected him. Indeed, it ignores that he might
have been charged and convicted of a lesser offense if not
for incompetencies associated with youth—for example,
his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist
his own attorneys. See, e.g., Graham, 560 U. S., at ___
(slip op., at 27) (“[T]he features that distinguish juveniles
from adults also put them at a significant disadvantage in
criminal proceedings”); J. D. B. v. North Carolina, 564
U. S. ___, ___ (2011) (slip op., at 5–6) (discussing children’s
responses to interrogation). And finally, this mandatory
punishment disregards the possibility of rehabilitation
even when the circumstances most suggest it.
Both cases before us illustrate the problem. Take Jack-
son’s first. As noted earlier, Jackson did not fire the bullet
that killed Laurie Troup; nor did the State argue that
he intended her death. Jackson’s conviction was instead
based on an aiding-and-abetting theory; and the appellate
court affirmed the verdict only because the jury could have
believed that when Jackson entered the store, he warned
Troup that “[w]e ain’t playin’,” rather than told his friends
that “I thought you all was playin’.” See 359 Ark., at
90–92, 194 S. W. 3d, at 759–760; supra, at 2. To be sure,
Jackson learned on the way to the video store that his
16 MILLER v. ALABAMA
Opinion of the Court
friend Shields was carrying a gun, but his age could well
have affected his calculation of the risk that posed, as well
as his willingness to walk away at that point. All these
circumstances go to Jackson’s culpability for the offense.
See Graham, 560 U. S., at ___ (slip op., at 18) (“[W]hen
compared to an adult murderer, a juvenile offender who
did not kill or intend to kill has a twice diminished moral
culpability”). And so too does Jackson’s family background
and immersion in violence: Both his mother and his
grandmother had previously shot other individuals. See
Record in No. 10–9647, pp. 80–82. At the least, a sen-
tencer should look at such facts before depriving a 14-
year-old of any prospect of release from prison.
That is true also in Miller’s case. No one can doubt that
he and Smith committed a vicious murder. But they did it
when high on drugs and alcohol consumed with the adult
victim. And if ever a pathological background might have
contributed to a 14-year-old’s commission of a crime, it is
here. Miller’s stepfather physically abused him; his alco-
holic and drug-addicted mother neglected him; he had
been in and out of foster care as a result; and he had tried
to kill himself four times, the first when he should have
been in kindergarten. See 928 So. 2d, at 1081 (Cobb, J.,
concurring in result); Miller App. 26–28; supra, at 4.
Nonetheless, Miller’s past criminal history was limited—
two instances of truancy and one of “second-degree crimi-
nal mischief.” No. CR–03–0915, at 6 (unpublished memo-
randum). That Miller deserved severe punishment for
killing Cole Cannon is beyond question. But once again,
a sentencer needed to examine all these circumstances
before concluding that life without any possibility of parole
was the appropriate penalty.
We therefore hold that the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders. Cf. Graham,
560 U. S., at ___ (slip op., at 24) (“A State is not required
Cite as: 567 U. S. ____ (2012) 17
Opinion of the Court
to guarantee eventual freedom,” but must provide “some
meaningful opportunity to obtain release based on demon-
strated maturity and rehabilitation”). By making youth
(and all that accompanies it) irrelevant to imposition of
that harshest prison sentence, such a scheme poses too
great a risk of disproportionate punishment. Because that
holding is sufficient to decide these cases, we do not con-
sider Jackson’s and Miller’s alternative argument that
the Eighth Amendment requires a categorical bar on life
without parole for juveniles, or at least for those 14 and
younger. But given all we have said in Roper, Graham,
and this decision about children’s diminished culpability
and heightened capacity for change, we think appropriate
occasions for sentencing juveniles to this harshest possible
penalty will be uncommon. That is especially so because
of the great difficulty we noted in Roper and Graham of
distinguishing at this early age between “the juvenile of-
fender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.” Roper, 543 U. S., at 573;
Graham, 560 U. S., at ___ (slip op., at 17). Although we do
not foreclose a sentencer’s ability to make that judgment
in homicide cases, we require it to take into account how
children are different, and how those differences coun-
sel against irrevocably sentencing them to a lifetime in
prison.8
——————
8 Given our holding, and the dissents’ competing position, we see a
certain irony in their repeated references to 17-year-olds who have
committed the “most heinous” offenses, and their comparison of those
defendants to the 14-year-olds here. See post, at 2 (opinion of ROBERTS,
C. J.) (noting the “17-year old [who] is convicted of deliberately murder-
ing an innocent victim”); post, at 3 (“the most heinous murders”); post,
at 7 (“the worst types of murder”); post, at 5 (opinion of ALITO, J.)
(warning the reader not to be “confused by the particulars” of these two
cases); post, at 1 (discussing the “171⁄2-year-old who sets off a bomb in
a crowded mall”). Our holding requires factfinders to attend to exactly
such circumstances—to take into account the differences among de-
18 MILLER v. ALABAMA
Opinion of the Court
III
Alabama and Arkansas offer two kinds of arguments
against requiring individualized consideration before sen-
tencing a juvenile to life imprisonment without possi-
bility of parole. The States (along with the dissents) first
contend that the rule we adopt conflicts with aspects of
our Eighth Amendment caselaw. And they next assert
that the rule is unnecessary because individualized cir-
cumstances come into play in deciding whether to try a
juvenile offender as an adult. We think the States are
wrong on both counts.
A
The States (along with JUSTICE THOMAS) first claim that
Harmelin v. Michigan, 501 U. S. 957 (1991), precludes our
holding. The defendant in Harmelin was sentenced to a
mandatory life-without-parole term for possessing more
than 650 grams of cocaine. The Court upheld that pen-
alty, reasoning that “a sentence which is not otherwise cruel
and unusual” does not “becom[e] so simply because it is
‘mandatory.’ ” Id., at 995. We recognized that a different
rule, requiring individualized sentencing, applied in the
death penalty context. But we refused to extend that
command to noncapital cases “because of the qualitative
difference between death and all other penalties.” Ibid.;
see id., at 1006 (KENNEDY, J., concurring in part and
concurring in judgment). According to Alabama, invali-
dating the mandatory imposition of life-without-parole
terms on juveniles “would effectively overrule Harmelin.”
Brief for Respondent in No. 10–9646, p. 59 (hereinafter
Alabama Brief); see Arkansas Brief 39.
We think that argument myopic. Harmelin had nothing
to do with children and did not purport to apply its hold-
——————
fendants and crimes. By contrast, the sentencing schemes that the
dissents find permissible altogether preclude considering these factors.
Cite as: 567 U. S. ____ (2012) 19
Opinion of the Court
ing to the sentencing of juvenile offenders. We have by
now held on multiple occasions that a sentencing rule
permissible for adults may not be so for children. Capital
punishment, our decisions hold, generally comports with
the Eighth Amendment—except it cannot be imposed on
children. See Roper, 543 U. S. 551; Thompson, 487 U. S.
815. So too, life without parole is permissible for nonhom-
icide offenses—except, once again, for children. See Gra-
ham, 560 U. S., at ___ (slip op., at 24). Nor are these
sentencing decisions an oddity in the law. To the contrary,
“ ‘[o]ur history is replete with laws and judicial recogni-
tion’ that children cannot be viewed simply as miniature
adults.” J. D. B., 564 U. S., at ___ (slip op., at 10–11)
(quoting Eddings, 455 U. S., at 115–116, citing examples
from criminal, property, contract, and tort law). So if (as
Harmelin recognized) “death is different,” children are
different too. Indeed, it is the odd legal rule that does not
have some form of exception for children. In that context,
it is no surprise that the law relating to society’s harshest
punishments recognizes such a distinction. Cf. Graham,
560 U. S., at ___ (ROBERTS, C. J., concurring in judgment)
(slip op., at 7) (“Graham’s age places him in a significantly
different category from the defendan[t] in . . . Harmelin”).
Our ruling thus neither overrules nor undermines nor con-
flicts with Harmelin.
Alabama and Arkansas (along with THE CHIEF JUS-
TICE and JUSTICE ALITO) next contend that because many
States impose mandatory life-without-parole sentences on
juveniles, we may not hold the practice unconstitutional.
In considering categorical bars to the death penalty and
life without parole, we ask as part of the analysis whether
“ ‘objective indicia of society’s standards, as expressed in
legislative enactments and state practice,’ ” show a “na-
tional consensus” against a sentence for a particular class
of offenders. Graham, 560 U. S., at ___ (slip op., at 10)
(quoting Roper, 543 U. S., at 563). By our count, 29 juris-
20 MILLER v. ALABAMA
Opinion of the Court
dictions (28 States and the Federal Government) make
a life-without-parole term mandatory for some juveniles
convicted of murder in adult court.9 The States argue that
this number precludes our holding.
We do not agree; indeed, we think the States’ argument
on this score weaker than the one we rejected in Graham.
For starters, the cases here are different from the typical
one in which we have tallied legislative enactments. Our
decision does not categorically bar a penalty for a class
of offenders or type of crime—as, for example, we did in
Roper or Graham. Instead, it mandates only that a sen-
tencer follow a certain process—considering an offender’s
youth and attendant characteristics—before imposing a
particular penalty. And in so requiring, our decision flows
straightforwardly from our precedents: specifically, the
principle of Roper, Graham, and our individualized sen-
tencing cases that youth matters for purposes of meting
out the law’s most serious punishments. When both of
those circumstances have obtained in the past, we have
not scrutinized or relied in the same way on legislative
——————
9 The States note that 26 States and the Federal Government make
life without parole the mandatory (or mandatory minimum) punish-
ment for some form of murder, and would apply the relevant provision
to 14-year-olds (with many applying it to even younger defendants).
See Alabama Brief 17–18. In addition, life without parole is mandatory
for older juveniles in Louisiana (age 15 and up) and Texas (age 17). See
La. Child. Code Ann., Arts. 857(A), (B) (West Supp. 2012); La. Rev.
Stat. Ann. §§14:30(C), 14:30.1(B) (West Supp. 2012); Tex. Family Code
Ann. §§51.02(2)(A), 54.02(a)(2)(A) (West Supp. 2011); Tex. Penal Code
Ann. §12.31(a) (West 2011). In many of these jurisdictions, life without
parole is the mandatory punishment only for aggravated forms of
murder. That distinction makes no difference to our analysis. We have
consistently held that limiting a mandatory death penalty law to
particular kinds of murder cannot cure the law’s “constitutional vice” of
disregarding the “circumstances of the particular offense and the
character and propensities of the offender.” Roberts v. Louisiana, 428
U. S. 325, 333 (1976) (plurality opinion); see Sumner v. Shuman, 483
U. S. 66 (1987). The same analysis applies here, for the same reasons.
Cite as: 567 U. S. ____ (2012) 21
Opinion of the Court
enactments. See, e.g., Sumner v. Shuman, 483 U. S. 66
(relying on Woodson’s logic to prohibit the mandatory
death penalty for murderers already serving life without
parole); Lockett, 438 U. S., at 602–608 (plurality opinion)
(applying Woodson to require that judges and juries
consider all mitigating evidence); Eddings, 455 U. S., at
110–117 (similar). We see no difference here.
In any event, the “objective indicia” that the States offer
do not distinguish these cases from others holding that
a sentencing practice violates the Eighth Amendment. In
Graham, we prohibited life-without-parole terms for
juveniles committing nonhomicide offenses even though
39 jurisdictions permitted that sentence. See 560 U. S.,
at ___ (slip op., at 11). That is 10 more than impose life
without parole on juveniles on a mandatory basis.10 And
——————
10 In assessing indicia of societal standards, Graham discussed “ac-
tual sentencing practices” in addition to legislative enactments, noting
how infrequently sentencers imposed the statutorily available penalty.
560 U. S., at ___ (slip op., at 11). Here, we consider the constitutional-
ity of mandatory sentencing schemes—which by definition remove a
judge’s or jury’s discretion—so no comparable gap between legislation
and practice can exist. Rather than showing whether sentencers
consider life without parole for juvenile homicide offenders appropriate,
the number of juveniles serving this sentence, see post, at 1, 3–4
(ROBERTS, C. J., dissenting), merely reflects the number who have com-
mitted homicide in mandatory-sentencing jurisdictions. For the same
reason, THE CHIEF JUSTICE’s comparison of ratios in this case and Gra-
ham carries little weight. He contrasts the number of mandatory
life-without-parole sentences for juvenile murderers, relative to the
number of juveniles arrested for murder, with “the corresponding
number” of sentences in Graham (i.e., the number of life-without-parole
sentences for juveniles who committed serious nonhomicide crimes, as
compared to arrests for those crimes). Post, at 4. But because the
mandatory nature of the sentences here necessarily makes them more
common, THE CHIEF JUSTICE’s figures do not “correspon[d]” at all. The
higher ratio is mostly a function of removing the sentencer’s discretion.
Where mandatory sentencing does not itself account for the number
of juveniles serving life-without-parole terms, the evidence we have of
practice supports our holding. Fifteen jurisdictions make life without
22 MILLER v. ALABAMA
Opinion of the Court
in Atkins, Roper, and Thompson, we similarly banned the
death penalty in circumstances in which “less than half ”
of the “States that permit[ted] capital punishment (for
whom the issue exist[ed])” had previously chosen to do so.
Atkins, 536 U. S., at 342 (SCALIA, J., dissenting) (emphasis
deleted); see id., at 313–315 (majority opinion); Roper, 543
U. S., at 564–565; Thompson, 487 U. S., at 826–827 (plu-
rality opinion). So we are breaking no new ground in
these cases.11
Graham and Thompson provide special guidance, be-
cause they considered the same kind of statutes we do and
——————
parole discretionary for juveniles. See Alabama Brief 25 (listing 12
States); Cal. Penal Code Ann. §190.5(b) (West 2008); Ind. Code §35–50–
2–3(b) (2011); N. M. Stat. §§31–18–13(B), 31–18–14, 31–18–15.2 (2010).
According to available data, only about 15% of all juvenile life-without-
parole sentences come from those 15 jurisdictions, while 85% come from
the 29 mandatory ones. See Tr. of Oral Arg. in No. 10–9646, p. 19;
Human Rights Watch, State Distribution of Youth Offenders Serv-
ing Juvenile Life Without Parole (JLWOP), Oct. 2, 2009, online at
http://www.hrw.org/news/2009/10/02/state-distribution-juvenile-offenders-
serving-juvenile-life-without-parole (as visited June 21, 2012, and
available in Clerk of Court’s case file). That figure indicates that when
given the choice, sentencers impose life without parole on children
relatively rarely. And contrary to THE CHIEF JUSTICE’s argument, see
post, at 5, n. 2, we have held that when judges and juries do not often
choose to impose a sentence, it at least should not be mandatory. See
Woodson v. North Carolina, 428 U. S. 280, 295–296 (1976) (plurality
opinion) (relying on the infrequency with which juries imposed the
death penalty when given discretion to hold that its mandatory imposi-
tion violates the Eighth Amendment).
11 In response, THE CHIEF JUSTICE complains: “To say that a sentence
may be considered unusual because so many legislatures approve it
stands precedent on its head.” Post, at 5. To be clear: That description
in no way resembles our opinion. We hold that the sentence violates
the Eighth Amendment because, as we have exhaustively shown, it
conflicts with the fundamental principles of Roper, Graham, and our
individualized sentencing cases. We then show why the number of
States imposing this punishment does not preclude our holding, and
note how its mandatory nature (in however many States adopt it)
makes use of actual sentencing numbers unilluminating.
Cite as: 567 U. S. ____ (2012) 23
Opinion of the Court
explained why simply counting them would present a
distorted view. Most jurisdictions authorized the death
penalty or life without parole for juveniles only through
the combination of two independent statutory provisions.
One allowed the transfer of certain juvenile offenders to
adult court, while another (often in a far-removed part of
the code) set out the penalties for any and all individuals
tried there. We reasoned that in those circumstances, it
was impossible to say whether a legislature had endorsed
a given penalty for children (or would do so if presented
with the choice). In Thompson, we found that the statutes
“t[old] us that the States consider 15-year-olds to be old
enough to be tried in criminal court for serious crimes (or
too old to be dealt with effectively in juvenile court),
but t[old] us nothing about the judgment these States
have made regarding the appropriate punishment for such
youthful offenders.” 487 U. S., at 826, n. 24 (plurality
opinion) (emphasis deleted); see also id., at 850 (O’Connor,
J., concurring in judgment); Roper, 543 U. S., at 596, n.
(O’Connor, J., dissenting). And Graham echoed that
reasoning: Although the confluence of state laws “ma[de]
life without parole possible for some juvenile nonhomicide
offenders,” it did not “justify a judgment” that many
States actually “intended to subject such offenders” to
those sentences. 560 U. S., at ___ (slip op., at 16).12
All that is just as true here. Almost all jurisdictions
allow some juveniles to be tried in adult court for some
——————
12 THE CHIEF JUSTICE attempts to distinguish Graham on this point,
arguing that there “the extreme rarity with which the sentence in
question was imposed could suggest that legislatures did not really
intend the inevitable result of the laws they passed.” Post, at 6. But
neither Graham nor Thompson suggested such reasoning, presumably
because the time frame makes it difficult to comprehend. Those cases
considered what legislators intended when they enacted, at different
moments, separate juvenile-transfer and life-without-parole provi-
sions—by definition, before they knew or could know how many juve-
nile life-without-parole sentences would result.
24 MILLER v. ALABAMA
Opinion of the Court
kinds of homicide. See Dept. of Justice, H. Snyder & M.
Sickmund, Juvenile Offenders and Victims: 2006 National
Report 110–114 (hereinafter 2006 National Report). But
most States do not have separate penalty provisions for
those juvenile offenders. Of the 29 jurisdictions mandat-
ing life without parole for children, more than half do so
by virtue of generally applicable penalty provisions, im-
posing the sentence without regard to age.13 And indeed,
some of those States set no minimum age for who may be
transferred to adult court in the first instance, thus apply-
ing life-without-parole mandates to children of any age—
be it 17 or 14 or 10 or 6.14 As in Graham, we think that
“underscores that the statutory eligibility of a juvenile
offender for life without parole does not indicate that the
penalty has been endorsed through deliberate, express,
and full legislative consideration.” 560 U. S., at ___ (slip
——————
13 See Ala. Code §§13A–5–45(f), 13A–6–2(c) (2005 and Cum. Supp.
2011); Ariz. Rev. Stat. Ann. §13–752 (West 2010), §41–1604.09(I) (West
2011); Conn. Gen. Stat. §53a–35a(1) (2011); Del. Code Ann., Tit. 11,
§4209(a) (2007); Fla. Stat. §775.082(1) (2010); Haw. Rev. Stat. §706–
656(1) (1993); Idaho Code §18–4004 (Lexis 2004); Mich. Comp. Laws
Ann. §791.234(6)(a) (West Cum. Supp. 2012); Minn. Stat. Ann.
§§609.106, subd. 2 (West 2009); Neb. Rev. Stat. §29–2522 (2008); N. H.
Rev. Stat. Ann. §630:1–a (West 2007); 18 Pa. Cons. Stat. §§1102(a), (b),
61 Pa. Cons. Stat. §6137(a)(1) (Supp. 2012); S. D. Codified Laws §22-6-
1(1) (2006), §24–15–4 (2004); Vt. Stat. Ann., Tit. 13, §2311(c)(2009);
Wash. Rev. Code §10.95.030(1) (2010).
14 See Del. Code Ann., Tit. 10, §1010 (1999 and Cum. Supp. 2010), Tit.
11, §4209(a) (2007); Fla. Stat. §985.56 (2010), 775.082(1); Haw. Rev.
Stat. §571–22(d) (1993), §706–656(1); Idaho Code §§20–508, 20–509
(Lexis Cum. Supp. 2012), §18–4004; Mich. Comp. Laws Ann. §712A.2d
(West 2009), §791.234(6)(a); Neb. Rev. Stat. §§43–247, 29–2522 (2008);
42 Pa. Cons. Stat. §6355(e) (2000), 18 Pa. Cons. Stat. §1102. Other
States set ages between 8 and 10 as the minimum for transfer, thus
exposing those young children to mandatory life without parole. See
S. D. Codified Laws §§26–8C–2, 26–11–4 (2004), §22–6–1 (age 10); Vt.
Stat. Ann., Tit. 33, §5204 (2011 Cum. Supp.), Tit. 13, §2311(a) (2009)
(age 10); Wash. Rev. Code §§9A.04.050, 13.40.110 (2010), §10.95.030
(age 8).
Cite as: 567 U. S. ____ (2012) 25
Opinion of the Court
op., at 16). That Alabama and Arkansas can count to 29
by including these possibly (or probably) inadvertent
legislative outcomes does not preclude our determination
that mandatory life without parole for juveniles violates
the Eighth Amendment.
B
Nor does the presence of discretion in some jurisdictions’
transfer statutes aid the States here. Alabama and Ar-
kansas initially ignore that many States use mandatory
transfer systems: A juvenile of a certain age who has
committed a specified offense will be tried in adult court,
regardless of any individualized circumstances. Of the
29 relevant jurisdictions, about half place at least some
juvenile homicide offenders in adult court automatically,
with no apparent opportunity to seek transfer to juvenile
court.15 Moreover, several States at times lodge this deci-
sion exclusively in the hands of prosecutors, again with
no statutory mechanism for judicial reevaluation.16 And
those “prosecutorial discretion laws are usually silent
regarding standards, protocols, or appropriate considera-
tions for decisionmaking.” Dept. of Justice, Office of Juve-
nile Justice and Delinquency Prevention, P. Griffin, S.
Addie, B. Adams, & K. Firestine, Trying Juveniles as
——————
15 See Ala. Code §12–15–204(a) (Cum. Supp. 2011); Ariz. Rev. Stat.
Ann. §13–501(A) (West Cum. Supp. 2011); Conn. Gen. Stat. §46b–127
(2011); Ill. Comp. Stat. ch. 705, §§405/5–130(1)(a), (4)(a) (West 2010);
La. Child. Code Ann., Art. 305(A) (West Cum. Supp. 2012); Mass. Gen.
Laws, ch. 119, §74 (West 2010); Mich. Comp. Laws Ann. §712A.2(a)
(West 2002); Minn. Stat. Ann. §260B.007, subd. 6(b) (West Cum. Supp.
2011), §260B.101, subd. 2 (West 2007); Mo. Rev. Stat. §§211.021(1), (2)
(2011); N. C. Gen. Stat. Ann. §§7B–1501(7), 7B–1601(a), 7B–2200
(Lexis 2011); N. H. Rev. Stat. Ann. §169–B:2(IV) (West Cum. Supp.
2011), §169–B:3 (West 2010); Ohio Rev. Code Ann. §2152.12(A)(1)(a)
(Lexis 2011); Tex. Family Code Ann. §51.02(2); Va. Code Ann. §§16.1–
241(A), 16.1–269.1(B), (D) (Lexis 2010).
16 Fla. Stat. Ann. §985.557(1) (West Supp. 2012); Mich. Comp. Laws
Ann. §712A.2(a)(1); Va. Code Ann. §§16.1–241(A), 16.1–269.1(C), (D).
26 MILLER v. ALABAMA
Opinion of the Court
Adults: An Analysis of State Transfer Laws and Reporting
5 (2011).
Even when States give transfer-stage discretion to
judges, it has limited utility. First, the decisionmaker
typically will have only partial information at this early,
pretrial stage about either the child or the circumstances
of his offense. Miller’s case provides an example. As
noted earlier, see n. 3, supra, the juvenile court denied
Miller’s request for his own mental-health expert at the
transfer hearing, and the appeals court affirmed on the
ground that Miller was not then entitled to the protections
and services he would receive at trial. See No. CR–03–
0915, at 3–4 (unpublished memorandum). But by then, of
course, the expert’s testimony could not change the sen-
tence; whatever she said in mitigation, the mandatory
life-without-parole prison term would kick in. The key mo-
ment for the exercise of discretion is the transfer—and as
Miller’s case shows, the judge often does not know then
what she will learn, about the offender or the offense, over
the course of the proceedings.
Second and still more important, the question at trans-
fer hearings may differ dramatically from the issue at a
post-trial sentencing. Because many juvenile systems
require that the offender be released at a particular age or
after a certain number of years, transfer decisions often
present a choice between extremes: light punishment as a
child or standard sentencing as an adult (here, life without
parole). In many States, for example, a child convicted in
juvenile court must be released from custody by the age of
21. See, e.g., Ala. Code §12–15–117(a) (Cum. Supp. 2011);
see generally 2006 National Report 103 (noting limitations
on the length of juvenile court sanctions). Discretionary
sentencing in adult court would provide different options:
There, a judge or jury could choose, rather than a life-
without-parole sentence, a lifetime prison term with the
possibility of parole or a lengthy term of years. It is easy
Cite as: 567 U. S. ____ (2012) 27
Opinion of the Court
to imagine a judge deciding that a minor deserves a
(much) harsher sentence than he would receive in juvenile
court, while still not thinking life-without-parole appro-
priate. For that reason, the discretion available to a judge
at the transfer stage cannot substitute for discretion at
post-trial sentencing in adult court—and so cannot satisfy
the Eighth Amendment.
IV
Graham, Roper, and our individualized sentencing
decisions make clear that a judge or jury must have the
opportunity to consider mitigating circumstances before
imposing the harshest possible penalty for juveniles. By
requiring that all children convicted of homicide receive
lifetime incarceration without possibility of parole, regard-
less of their age and age-related characteristics and the
nature of their crimes, the mandatory sentencing schemes
before us violate this principle of proportionality, and so
the Eighth Amendment’s ban on cruel and unusual pun-
ishment. We accordingly reverse the judgments of the
Arkansas Supreme Court and Alabama Court of Criminal
Appeals and remand the cases for further proceedings not
inconsistent with this opinion.
It is so ordered.
Cite as: 567 U. S. ____ (2012) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 10–9646 and 10–9647
_________________
EVAN MILLER, PETITIONER
10–9646 v.
ALABAMA
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF ALABAMA
KUNTRELL JACKSON, PETITIONER
10–9647 v.
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF ARKANSAS
[June 25, 2012]
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR joins,
concurring.
I join the Court’s opinion in full. I add that, if the State
continues to seek a sentence of life without the possibil-
ity of parole for Kuntrell Jackson, there will have to be a
determination whether Jackson “kill[ed] or intend[ed] to
kill” the robbery victim. Graham v. Florida, 560 U. S. ___,
___ (2010) (slip op., at 18). In my view, without such a
finding, the Eighth Amendment as interpreted in Graham
forbids sentencing Jackson to such a sentence, regardless
of whether its application is mandatory or discretionary
under state law.
In Graham we said that “when compared to an adult
murderer, a juvenile offender who did not kill or intend to
kill has a twice diminished moral culpability.” Ibid. (em-
phasis added). For one thing, “compared to adults, juve-
niles have a lack of maturity and an underdeveloped sense
2 MILLER v. ALABAMA
BREYER, J., concurring
of responsibility; they are more vulnerable or susceptible
to negative influences and outside pressures, including
peer pressure; and their characters are not as well
formed.” Id., at ___ (slip op., at 17) (internal quotation
marks omitted). See also ibid. (“[P]sychology and brain
science continue to show fundamental differences between
juvenile and adult minds” making their actions “less likely
to be evidence of ‘irretrievably depraved character’ than
are the actions of adults” (quoting Roper v. Simmons, 543
U. S. 551, 570 (2005))); ante, at 8–9. For another thing,
Graham recognized that lack of intent normally dimin-
ishes the “moral culpability” that attaches to the crime in
question, making those that do not intend to kill “categori-
cally less deserving of the most serious forms of punish-
ment than are murderers.” 560 U. S., at ___ (slip op., at
18) (citing Kennedy v. Louisiana, 554 U. S. 407, 434–435
(2008); Enmund v. Florida, 458 U. S. 782 (1982); Tison v.
Arizona, 481 U. S. 137 (1987)). And we concluded that,
because of this “twice diminished moral culpability,” the
Eighth Amendment forbids the imposition upon juveniles
of a sentence of life without parole for nonhomicide cases.
Graham, supra, at ___, ___ (slip op., at 18, 32).
Given Graham’s reasoning, the kinds of homicide that
can subject a juvenile offender to life without parole must
exclude instances where the juvenile himself neither kills
nor intends to kill the victim. Quite simply, if the juvenile
either kills or intends to kill the victim, he lacks “twice
diminished” responsibility. But where the juvenile neither
kills nor intends to kill, both features emphasized in Gra-
ham as extenuating apply. The dissent itself here would
permit life without parole for “juveniles who commit the
worst types of murder,” post, at 7 (opinion of ROBERTS,
C. J.), but that phrase does not readily fit the culpability of
one who did not himself kill or intend to kill.
I recognize that in the context of felony-murder cases,
the question of intent is a complicated one. The felony-
Cite as: 567 U. S. ____ (2012) 3
BREYER, J., concurring
murder doctrine traditionally attributes death caused in
the course of a felony to all participants who intended to
commit the felony, regardless of whether they killed or
intended to kill. See 2 W. LaFave, Substantive Criminal
Law §§14.5(a) and (c) (2d ed. 2003). This rule has been
based on the idea of “transferred intent”; the defendant’s
intent to commit the felony satisfies the intent to kill
required for murder. See S. Kadish, S. Schulhofer, & C.
Streiker, Criminal Law and Its Processes 439 (8th ed.
2007); 2 C. Torcia, Wharton’s Criminal Law §147 (15th ed.
1994).
But in my opinion, this type of “transferred intent” is
not sufficient to satisfy the intent to murder that could
subject a juvenile to a sentence of life without parole. As
an initial matter, this Court has made clear that this
artificially constructed kind of intent does not count as
intent for purposes of the Eighth Amendment. We do not
rely on transferred intent in determining if an adult may
receive the death penalty. Thus, the Constitution forbids
imposing capital punishment upon an aider and abettor in
a robbery, where that individual did not intend to kill and
simply was “in the car by the side of the road . . . , waiting
to help the robbers escape.” Enmund, supra, at 788. Cf.
Tison, supra, at 157–158 (capital punishment permissi-
ble for aider and abettor where kidnaping led to death
because he was “actively involved” in every aspect of the
kidnaping and his behavior showed “a reckless disregard
for human life”). Given Graham, this holding applies to
juvenile sentences of life without parole a fortiori. See
ante, at 12–13. Indeed, even juveniles who meet the Tison
standard of “reckless disregard” may not be eligible for life
without parole. Rather, Graham dictates a clear rule: The
only juveniles who may constitutionally be sentenced to
life without parole are those convicted of homicide offenses
who “kill or intend to kill.” 560 U. S., at ___ (slip op.,
at 18).
4 MILLER v. ALABAMA
BREYER, J., concurring
Moreover, regardless of our law with respect to adults,
there is no basis for imposing a sentence of life without
parole upon a juvenile who did not himself kill or intend to
kill. At base, the theory of transferring a defendant’s
intent is premised on the idea that one engaged in a dan-
gerous felony should understand the risk that the victim
of the felony could be killed, even by a confederate. See 2
LaFave, supra, §14.5(c). Yet the ability to consider the
full consequences of a course of action and to adjust one’s
conduct accordingly is precisely what we know juveniles
lack capacity to do effectively. Ante, at 8–9. Justice Frank-
furter cautioned, “Legal theories and their phrasing in
other cases readily lead to fallacious reasoning if uncrit-
ically transferred to a determination of a State’s duty to-
ward children.” May v. Anderson, 345 U. S. 528, 536
(1953) (concurring opinion). To apply the doctrine of
transferred intent here, where the juvenile did not kill, to
sentence a juvenile to life without parole would involve
such “fallacious reasoning.” Ibid.
This is, as far as I can tell, precisely the situation pres-
ent in Kuntrell Jackson’s case. Jackson simply went
along with older boys to rob a video store. On the way, he
became aware that a confederate had a gun. He initially
stayed outside the store, and went in briefly, saying some-
thing like “We ain’t playin’ ” or “ ‘I thought you all was
playin,’ ” before an older confederate shot and killed the
store clerk. Jackson v. State, 359 Ark. 87, 91, 194 S. W. 3d
757, 760 (2004). Crucially, the jury found him guilty of
first-degree murder under a statute that permitted them
to convict if, Jackson “attempted to commit or committed
an aggravated robbery, and, in the course of that of-
fense, he, or an accomplice, caused [the clerk’s] death
under circumstance manifesting extreme indifference to the
value of human life.” Ibid. See Ark. Code Ann. §5–10–
101(a)(1) (1997); ante, at 15. Thus, to be found guilty,
Jackson did not need to kill the clerk (it is conceded he did
Cite as: 567 U. S. ____ (2012) 5
BREYER, J., concurring
not), nor did he need to have intent to kill or even “ex-
treme indifference.” As long as one of the teenage accom-
plices in the robbery acted with extreme indifference to
the value of human life, Jackson could be convicted of
capital murder. Ibid.
The upshot is that Jackson, who did not kill the clerk,
might not have intended to do so either. See Jackson v.
Norris, 2011 Ark. 49, at 10, ___ S. W. 3d ___ (Danielson,
J., dissenting) (“[A]ny evidence of [Jackson’s] intent to kill
was severely lacking”). In that case, the Eighth Amend-
ment simply forbids imposition of a life term without the
possibility of parole. If, on remand, however, there is a
finding that Jackson did intend to cause the clerk’s death,
the question remains open whether the Eighth Amend-
ment prohibits the imposition of life without parole upon a
juvenile in those circumstances as well. Ante, at 17.
Cite as: 567 U. S. ____ (2012) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 10–9646 and 10–9647
_________________
EVAN MILLER, PETITIONER
10–9646 v.
ALABAMA
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF ALABAMA
KUNTRELL JACKSON, PETITIONER
10–9647 v.
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF ARKANSAS
[June 25, 2012]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Determining the appropriate sentence for a teenager con-
victed of murder presents grave and challenging ques-
tions of morality and social policy. Our role, however, is to
apply the law, not to answer such questions. The perti-
nent law here is the Eighth Amendment to the Constitu-
tion, which prohibits “cruel and unusual punishments.”
Today, the Court invokes that Amendment to ban a pun-
ishment that the Court does not itself characterize as un-
usual, and that could not plausibly be described as such.
I therefore dissent.
The parties agree that nearly 2,500 prisoners are pres-
ently serving life sentences without the possibility of pa-
role for murders they committed before the age of 18.
Brief for Petitioner in No. 10–9647, p. 62, n. 80 (Jackson
2 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
Brief ); Brief for Respondent in No. 10–9646, p. 30 (Ala-
bama Brief ). The Court accepts that over 2,000 of those
prisoners received that sentence because it was mandated
by a legislature. Ante, at 22, n. 10. And it recognizes
that the Federal Government and most States impose such
mandatory sentences. Ante, at 19–20. Put simply, if a 17-
year-old is convicted of deliberately murdering an innocent
victim, it is not “unusual” for the murderer to receive a
mandatory sentence of life without parole. That reality
should preclude finding that mandatory life imprisonment
for juvenile killers violates the Eighth Amendment.
Our precedent supports this conclusion. When deter-
mining whether a punishment is cruel and unusual, this
Court typically begins with “ ‘objective indicia of society’s
standards, as expressed in legislative enactments and
state practice.’ ” Graham v. Florida, 560 U. S. ___, ___
(2010) (slip op., at 10); see also, e.g., Kennedy v. Louisiana,
554 U. S. 407, 422 (2008); Roper v. Simmons, 543
U. S. 551, 564 (2005). We look to these “objective indicia” to
ensure that we are not simply following our own subjective
values or beliefs. Gregg v. Georgia, 428 U. S. 153, 173
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).
Such tangible evidence of societal standards enables us to
determine whether there is a “consensus against” a given
sentencing practice. Graham, supra, at ___ (slip op., at
10). If there is, the punishment may be regarded as “un-
usual.” But when, as here, most States formally require
and frequently impose the punishment in question, there
is no objective basis for that conclusion.
Our Eighth Amendment cases have also said that we
should take guidance from “evolving standards of decency
that mark the progress of a maturing society.” Ante, at 6
(quoting Estelle v. Gamble, 429 U. S. 97, 102 (1976); inter-
nal quotation marks omitted). Mercy toward the guilty
can be a form of decency, and a maturing society may
abandon harsh punishments that it comes to view as
Cite as: 567 U. S. ____ (2012) 3
ROBERTS, C. J., dissenting
unnecessary or unjust. But decency is not the same as
leniency. A decent society protects the innocent from
violence. A mature society may determine that this re-
quires removing those guilty of the most heinous murders
from its midst, both as protection for its other members
and as a concrete expression of its standards of decency.
As judges we have no basis for deciding that progress
toward greater decency can move only in the direction of
easing sanctions on the guilty.
In this case, there is little doubt about the direction of
society’s evolution: For most of the 20th century, American
sentencing practices emphasized rehabilitation of the
offender and the availability of parole. But by the 1980’s,
outcry against repeat offenders, broad disaffection with
the rehabilitative model, and other factors led many legis-
latures to reduce or eliminate the possibility of parole,
imposing longer sentences in order to punish criminals
and prevent them from committing more crimes. See, e.g.,
Alschuler, The Changing Purposes of Criminal Punish-
ment, 70 U. Chi. L. Rev. 1, 1–13 (2003); see generally
Crime and Public Policy (J. Wilson & J. Petersilia eds.
2011). Statutes establishing life without parole sentences
in particular became more common in the past quarter
century. See Baze v. Rees, 553 U. S. 35, 78, and n. 10
(2008) (Stevens, J., concurring in judgment). And the
parties agree that most States have changed their laws
relatively recently to expose teenage murderers to manda-
tory life without parole. Jackson Brief 54–55; Alabama
Brief 4–5.
The Court attempts to avoid the import of the fact that
so many jurisdictions have embraced the sentencing prac-
tice at issue by comparing this case to the Court’s prior
Eighth Amendment cases. The Court notes that Graham
found a punishment authorized in 39 jurisdictions uncon-
stitutional, whereas the punishment it bans today is
mandated in 10 fewer. Ante, at 21. But Graham went to
4 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
considerable lengths to show that although theoretically
allowed in many States, the sentence at issue in that case
was “exceedingly rare” in practice. 560 U. S., at ___ (slip
op., at 16). The Court explained that only 123 prisoners
in the entire Nation were serving life without parole for
nonhomicide crimes committed as juveniles, with more
than half in a single State. It contrasted that with statis-
tics showing nearly 400,000 juveniles were arrested for
serious nonhomicide offenses in a single year. Based on
the sentence’s rarity despite the many opportunities to im-
pose it, Graham concluded that there was a national
consensus against life without parole for juvenile nonhom-
icide crimes. Id., at ___ (slip op., at 13–16).
Here the number of mandatory life without parole sen-
tences for juvenile murderers, relative to the number of
juveniles arrested for murder, is over 5,000 times higher
than the corresponding number in Graham. There is thus
nothing in this case like the evidence of national consen-
sus in Graham.1
The Court disregards these numbers, claiming that the
prevalence of the sentence in question results from the
number of statutes requiring its imposition. Ante, at 21,
n. 10. True enough. The sentence at issue is statutorily
mandated life without parole. Such a sentence can only
result from statutes requiring its imposition. In Graham
the Court relied on the low number of actual sentences to
explain why the high number of statutes allowing such
——————
1 Graham stated that 123 prisoners were serving life without parole
for nonhomicide offenses committed as juveniles, while in 2007 alone
380,480 juveniles were arrested for serious nonhomicide crimes. 560
U. S., at ___ (slip op., at 13–14). I use 2,000 as the number of prisoners
serving mandatory life without parole sentences for murders committed
as juveniles, because all seem to accept that the number is at least that
high. And the same source Graham used reports that 1,170 juveniles
were arrested for murder and nonnegligent homicide in 2009. Dept.
of Justice, Office of Juvenile Justice and Delinquency Prevention,
C. Puzzanchera & B. Adams, Juvenile Arrests 2009, p. 4 (Dec. 2011).
Cite as: 567 U. S. ____ (2012) 5
ROBERTS, C. J., dissenting
sentences was not dispositive. Here, the Court excuses
the high number of actual sentences by citing the high
number of statutes imposing it. To say that a sentence
may be considered unusual because so many legislatures
approve it stands precedent on its head.2
The Court also advances another reason for discounting
the laws enacted by Congress and most state legisla-
tures. Some of the jurisdictions that impose mandatory life
without parole on juvenile murderers do so as a result of
two statutes: one providing that juveniles charged with
serious crimes may be tried as adults, and another gener-
ally mandating that those convicted of murder be impris-
oned for life. According to the Court, our cases suggest
that where the sentence results from the interaction of two
such statutes, the legislature can be considered to have
imposed the resulting sentences “inadvertent[ly].” Ante,
at 22–25. The Court relies on Graham and Thompson v.
Oklahoma, 487 U. S. 815, 826, n. 24 (1988) (plurality
opinion), for the proposition that these laws are therefore
not valid evidence of society’s views on the punishment at
issue.
It is a fair question whether this Court should ever
assume a legislature is so ignorant of its own laws that it
does not understand that two of them interact with each
——————
2 The Court’s reference to discretionary sentencing practices is a dis-
traction. See ante, at 21–22, n. 10. The premise of the Court’s decision
is that mandatory sentences are categorically different from discretion-
ary ones. So under the Court’s own logic, whether discretionary sen-
tences are common or uncommon has nothing to do with whether
mandatory sentences are unusual. In any event, if analysis of discre-
tionary sentences were relevant, it would not provide objective support
for today’s decision. The Court states that “about 15% of all juvenile
life-without-parole sentences”—meaning nearly 400 sentences—were
imposed at the discretion of a judge or jury. Ante, at 22, n. 10. Thus
the number of discretionary life without parole sentences for juvenile
murderers, relative to the number of juveniles arrested for murder, is
about 1,000 times higher than the corresponding number in Graham.
6 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
other, especially on an issue of such importance as the one
before us. But in Graham and Thompson it was at least
plausible as a practical matter. In Graham, the extreme
rarity with which the sentence in question was imposed
could suggest that legislatures did not really intend the
inevitable result of the laws they passed. See 560 U. S.,
at ___ (slip op., at 15–16). In Thompson, the sentencing
practice was even rarer—only 20 defendants had received
it in the last century. 487 U. S., at 832 (plurality opinion).
Perhaps under those facts it could be argued that the leg-
islature was not fully aware that a teenager could re-
ceive the particular sentence in question. But here the
widespread and recent imposition of the sentence makes it
implausible to characterize this sentencing practice as a
collateral consequence of legislative ignorance.3
Nor do we display our usual respect for elected officials
by asserting that legislators have accidentally required
2,000 teenagers to spend the rest of their lives in jail. This
is particularly true given that our well-publicized decision
in Graham alerted legislatures to the possibility that
teenagers were subject to life with parole only because of
legislative inadvertence. I am aware of no effort in the
wake of Graham to correct any supposed legislative over-
sight. Indeed, in amending its laws in response to Gra-
ham one legislature made especially clear that it does
intend juveniles who commit first-degree murder to re-
ceive mandatory life without parole. See Iowa Code Ann.
§902.1 (West Cum. Supp. 2012).
In the end, the Court does not actually conclude that
mandatory life sentences for juvenile murderers are un-
usual. It instead claims that precedent “leads to” today’s
——————
3 The
Court claims that I “take issue with some or all of these prece-
dents” and “seek to relitigate” them. Ante, at 7–8, n. 4. Not so: apply-
ing this Court’s cases exactly as they stand, I do not believe they
support the Court’s decision in this case.
Cite as: 567 U. S. ____ (2012) 7
ROBERTS, C. J., dissenting
decision, primarily relying on Graham and Roper. Ante,
at 7. Petitioners argue that the reasoning of those cases
“compels” finding in their favor. Jackson Brief 34. The
Court is apparently unwilling to go so far, asserting only
that precedent points in that direction. But today’s deci-
sion invalidates the laws of dozens of legislatures and
Congress. This Court is not easily led to such a result.
See, e.g., United States v. Harris, 106 U. S. 629, 635 (1883)
(courts must presume an Act of Congress is constitutional
“unless the lack of constitutional authority . . . is clearly
demonstrated”). Because the Court does not rely on the
Eighth Amendment’s text or objective evidence of society’s
standards, its analysis of precedent alone must bear the
“heavy burden [that] rests on those who would attack the
judgment of the representatives of the people.” Gregg, 428
U. S., at 175. If the Court is unwilling to say that prece-
dent compels today’s decision, perhaps it should reconsider
that decision.
In any event, the Court’s holding does not follow from
Roper and Graham. Those cases undoubtedly stand for
the proposition that teenagers are less mature, less re-
sponsible, and less fixed in their ways than adults—not
that a Supreme Court case was needed to establish that.
What they do not stand for, and do not even suggest, is
that legislators—who also know that teenagers are differ-
ent from adults—may not require life without parole for
juveniles who commit the worst types of murder.
That Graham does not imply today’s result could not be
clearer. In barring life without parole for juvenile non-
homicide offenders, Graham stated that “[t]here is a line
‘between homicide and other serious violent offenses
against the individual.’ ” 560 U. S., at ___ (slip op., at 18)
(quoting Kennedy, 554 U. S., at ___ (slip op., at 27)). The
whole point of drawing a line between one issue and an-
other is to say that they are different and should be
treated differently. In other words, the two are in different
8 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
categories. Which Graham also said: “defendants who do
not kill, intend to kill, or foresee that life will be taken are
categorically less deserving of the most serious forms of
punishment than are murderers.” 560 U. S., at ___ (slip
op., at 18) (emphasis added). Of course, to be especially
clear that what is said about one issue does not apply to
another, one could say that the two issues cannot be com-
pared. Graham said that too: “Serious nonhomicide
crimes . . . cannot be compared to murder.” Ibid. (internal
quotation marks omitted). A case that expressly puts an
issue in a different category from its own subject, draws a
line between the two, and states that the two should not
be compared, cannot fairly be said to control that issue.
Roper provides even less support for the Court’s holding.
In that case, the Court held that the death penalty could
not be imposed for offenses committed by juveniles, no
matter how serious their crimes. In doing so, Roper also
set itself in a different category than this case, by ex-
pressly invoking “special” Eighth Amendment analysis for
death penalty cases. 543 U. S., at 568–569. But more
importantly, Roper reasoned that the death penalty was
not needed to deter juvenile murderers in part because
“life imprisonment without the possibility of parole” was
available. Id., at 572. In a classic bait and switch, the
Court now tells state legislatures that—Roper’s promise
notwithstanding—they do not have power to guarantee
that once someone commits a heinous murder, he will
never do so again. It would be enough if today’s decision
proved JUSTICE SCALIA’s prescience in writing that Roper’s
“reassurance . . . gives little comfort.” Id., at 623 (dissent-
ing opinion). To claim that Roper actually “leads to” re-
voking its own reassurance surely goes too far.
Today’s decision does not offer Roper and Graham’s
false promises of restraint. Indeed, the Court’s opinion
suggests that it is merely a way station on the path to
further judicial displacement of the legislative role in
Cite as: 567 U. S. ____ (2012) 9
ROBERTS, C. J., dissenting
prescribing appropriate punishment for crime. The
Court’s analysis focuses on the mandatory nature of the
sentences in this case. See ante, at 11–17. But then—
although doing so is entirely unnecessary to the rule it
announces—the Court states that even when a life with-
out parole sentence is not mandatory, “we think appropri-
ate occasions for sentencing juveniles to this harshest
possible penalty will be uncommon.” Ante, at 17. Today’s
holding may be limited to mandatory sentences, but the
Court has already announced that discretionary life with-
out parole for juveniles should be “uncommon”—or, to use
a common synonym, “unusual.”
Indeed, the Court’s gratuitous prediction appears to be
nothing other than an invitation to overturn life without
parole sentences imposed by juries and trial judges. If
that invitation is widely accepted and such sentences for
juvenile offenders do in fact become “uncommon,” the
Court will have bootstrapped its way to declaring that the
Eighth Amendment absolutely prohibits them.
This process has no discernible end point—or at least
none consistent with our Nation’s legal traditions. Roper
and Graham attempted to limit their reasoning to the
circumstances they addressed—Roper to the death penalty,
and Graham to nonhomicide crimes. Having cast aside
those limits, the Court cannot now offer a credible substi-
tute, and does not even try. After all, the Court tells us,
“none of what [Graham] said about children . . . is crime-
specific.” Ante, at 10. The principle behind today’s deci-
sion seems to be only that because juveniles are different
from adults, they must be sentenced differently. See ante,
at 14–17. There is no clear reason that principle would
not bar all mandatory sentences for juveniles, or any
juvenile sentence as harsh as what a similarly situated
adult would receive. Unless confined, the only stopping
point for the Court’s analysis would be never permitting
juvenile offenders to be tried as adults. Learning that an
10 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
Amendment that bars only “unusual” punishments re-
quires the abolition of this uniformly established practice
would be startling indeed.
* * *
It is a great tragedy when a juvenile commits murder—
most of all for the innocent victims. But also for the mur-
derer, whose life has gone so wrong so early. And for
society as well, which has lost one or more of its members
to deliberate violence, and must harshly punish another.
In recent years, our society has moved toward requiring
that the murderer, his age notwithstanding, be imprisoned
for the remainder of his life. Members of this Court may
disagree with that choice. Perhaps science and policy
suggest society should show greater mercy to young kill-
ers, giving them a greater chance to reform themselves at
the risk that they will kill again. See ante, at 8–11. But
that is not our decision to make. Neither the text of the
Constitution nor our precedent prohibits legislatures from
requiring that juvenile murderers be sentenced to life
without parole. I respectfully dissent.
Cite as: 567 U. S. ____ (2012) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 10–9646 and 10–9647
_________________
EVAN MILLER, PETITIONER
10–9646 v.
ALABAMA
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF ALABAMA
KUNTRELL JACKSON, PETITIONER
10–9647 v.
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF ARKANSAS
[June 25, 2012]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
dissenting.
Today, the Court holds that “mandatory life without
parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’ ” Ante, at 2. To reach
that result, the Court relies on two lines of precedent. The
first involves the categorical prohibition of certain pun-
ishments for specified classes of offenders. The second
requires individualized sentencing in the capital punish-
ment context. Neither line is consistent with the original
understanding of the Cruel and Unusual Punishments
Clause. The Court compounds its errors by combining
these lines of precedent and extending them to reach a result
that is even less legitimate than the foundation on which
it is built. Because the Court upsets the legislatively
enacted sentencing regimes of 29 jurisdictions without
2 MILLER v. ALABAMA
THOMAS, J., dissenting
constitutional warrant, I respectfully dissent.1
I
The Court first relies on its cases “adopt[ing] categorical
bans on sentencing practices based on mismatches be-
tween the culpability of a class of offenders and the severity
of a penalty.” Ante, at 6–7. Of these categorical propor-
tionality cases, the Court places particular emphasis on
Roper v. Simmons, 543 U. S. 551 (2005), and Graham v.
Florida, 560 U. S. ___ (2010). In Roper, the Court held
that the Constitution prohibits the execution of an offender
who was under 18 at the time of his offense. 543 U. S.,
at 578. The Roper Court looked to, among other things, its
own sense of parental intuition and “scientific and socio-
logical studies” to conclude that offenders under the age of
18 “cannot with reliability be classified among the worst
offenders.” Id., at 569. In Graham, the Court relied on
similar considerations to conclude that the Constitution
prohibits a life-without-parole sentence for a nonhomicide
offender who was under the age of 18 at the time of his
offense. 560 U. S., at ___ (slip op., at 24).
The Court now concludes that mandatory life-without-
parole sentences for duly convicted juvenile murderers
“contraven[e] Graham’s (and also Roper’s) foundational
principle: that imposition of a State’s most severe penal-
ties on juvenile offenders cannot proceed as though they
were not children.” Ante, at 11–12. But neither Roper nor
Graham held that specific procedural rules are required
for sentencing juvenile homicide offenders. And, the logic
of those cases should not be extended to create such a
requirement.
The Eighth Amendment, made applicable to the States
by the Fourteenth Amendment, provides that: “Excessive
——————
1 I join THE CHIEF JUSTICE’s opinion because it accurately explains
that, even accepting the Court’s precedents, the Court’s holding in
today’s cases is unsupportable.
Cite as: 567 U. S. ____ (2012) 3
THOMAS, J., dissenting
bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” As I have
previously explained, “the Cruel and Unusual Punish-
ments Clause was originally understood as prohibiting
torturous methods of punishment—specifically methods
akin to those that had been considered cruel and unusual
at the time the Bill of Rights was adopted.” Graham,
supra, at ___ (dissenting opinion) (slip op., at 3) (internal
quotation marks and citations omitted).2 The clause does
not contain a “proportionality principle.” Ewing v. Cali-
fornia, 538 U. S. 11, 32 (2003) (THOMAS, J., concurring in
judgment); see generally Harmelin v. Michigan, 501 U. S.
957, 975–985 (1991) (opinion of SCALIA, J.). In short, it
does not authorize courts to invalidate any punishment
they deem disproportionate to the severity of the crime
or to a particular class of offenders. Instead, the clause
“leaves the unavoidably moral question of who ‘deserves’ a
particular nonprohibited method of punishment to the
judgment of the legislatures that authorize the penalty.”
Graham, supra, at ___ (THOMAS, J., dissenting) (slip op.,
at 5).
The legislatures of Arkansas and Alabama, like those of
27 other jurisdictions, ante, at 19–20, have determined
——————
2 Neither the Court nor petitioners argue that petitioners’ sentences
would have been among “the ‘modes or acts of punishment that had
been considered cruel and unusual at the time that the Bill of Rights
was adopted.’ ” Graham, 560 U. S., at ___ (THOMAS, J., dissenting) (slip
op., at 10, n. 3) (quoting Ford v. Wainwright, 477 U. S. 399, 405 (1986)).
Nor could they. Petitioners were 14 years old at the time they commit-
ted their crimes. When the Bill of Rights was ratified, 14-year-olds
were subject to trial and punishment as adult offenders. See Roper v.
Simmons, 543 U. S. 551, 609, n. 1 (2005) (SCALIA, J., dissenting).
Further, mandatory death sentences were common at that time. See
Harmelin v. Michigan, 501 U. S. 957, 994–995 (1991). It is therefore
implausible that a 14-year-old’s mandatory prison sentence—of any
length, with or without parole—would have been viewed as cruel and
unusual.
4 MILLER v. ALABAMA
THOMAS, J., dissenting
that all offenders convicted of specified homicide offenses,
whether juveniles or not, deserve a sentence of life in
prison without the possibility of parole. Nothing in our
Constitution authorizes this Court to supplant that choice.
II
To invalidate mandatory life-without-parole sentences
for juveniles, the Court also relies on its cases “prohib-
it[ing] mandatory imposition of capital punishment.”
Ante, at 7. The Court reasons that, because Graham
compared juvenile life-without-parole sentences to the
death penalty, the “distinctive set of legal rules” that this
Court has imposed in the capital punishment context,
including the requirement of individualized sentencing, is
“relevant” here. Ante, at 12–13. But even accepting an
analogy between capital and juvenile life-without-parole
sentences, this Court’s cases prohibiting mandatory capi-
tal sentencing schemes have no basis in the original un-
derstanding of the Eighth Amendment, and, thus, cannot
justify a prohibition of sentencing schemes that mandate
life-without-parole sentences for juveniles.
A
In a line of cases following Furman v. Georgia, 408 U. S.
238 (1972) (per curiam), this Court prohibited the manda-
tory imposition of the death penalty. See Woodson v.
North Carolina, 428 U. S. 280 (1976) (plurality opinion);
Roberts v. Louisiana, 428 U. S. 325 (1976) (same); Sumner
v. Shuman, 483 U. S. 66 (1987). Furman first announced
the principle that States may not permit sentencers to
exercise unguided discretion in imposing the death pen-
alty. See generally 408 U. S. 238. In response to Furman,
many States passed new laws that made the death pen-
alty mandatory following conviction of specified crimes,
thereby eliminating the offending discretion. See Gregg
v. Georgia, 428 U. S. 153, 180–181 (1976) (joint opinion
Cite as: 567 U. S. ____ (2012) 5
THOMAS, J., dissenting
of Stewart, Powell, and Stevens, JJ.). The Court invali-
dated those statutes in Woodson, Roberts, and Sumner.
The Court reasoned that mandatory capital sentencing
schemes were problematic, because they failed “to allow
the particularized consideration” of “relevant facets of the
character and record of the individual offender or the
circumstances of the particular offense.” Woodson, supra,
at 303–304 (plurality opinion).3
In my view, Woodson and its progeny were wrongly
decided. As discussed above, the Cruel and Unusual
Punishments Clause, as originally understood, prohibits
“torturous methods of punishment.” See Graham, 560
U. S., at ___ (THOMAS, J., dissenting) (slip op., at 3) (inter-
nal quotation marks omitted). It is not concerned with
whether a particular lawful method of punishment—
whether capital or noncapital—is imposed pursuant to a
mandatory or discretionary sentencing regime. See Gard-
ner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist, J.,
dissenting) (“The prohibition of the Eighth Amendment
relates to the character of the punishment, and not to the
process by which it is imposed”). In fact, “[i]n the early
days of the Republic,” each crime generally had a defined
punishment “prescribed with specificity by the legisla-
ture.” United States v. Grayson, 438 U. S. 41, 45 (1978).
Capital sentences, to which the Court analogizes, were
——————
3 The Court later extended Woodson, requiring that capital defend-
ants be permitted to present, and sentencers in capital cases be permit-
ted to consider, any relevant mitigating evidence, including the age of
the defendant. See, e.g., Lockett v. Ohio, 438 U. S. 586, 597–608 (1978)
(plurality opinion); Eddings v. Oklahoma, 455 U. S. 104, 110–112
(1982); Skipper v. South Carolina, 476 U. S. 1, 4–5 (1986); Johnson v.
Texas, 509 U. S. 350, 361–368 (1993). Whatever the validity of the
requirement that sentencers be permitted to consider all mitigating
evidence when deciding whether to impose a nonmandatory capital
sentence, the Court certainly was wrong to prohibit mandatory capital
sentences. See Graham v. Collins, 506 U. S. 461, 488–500 (1993)
(THOMAS, J., concurring).
6 MILLER v. ALABAMA
THOMAS, J., dissenting
treated no differently. “[M]andatory death sentences
abounded in our first Penal Code” and were “common in
the several States—both at the time of the founding and
throughout the 19th century.” Harmelin, 501 U. S., at
994–995; see also Woodson, supra, at 289 (plurality opin-
ion) (“At the time the Eighth Amendment was adopted
in 1791, the States uniformly followed the common-law
practice of making death the exclusive and mandatory
sentence for certain specified offenses”). Accordingly, the
idea that the mandatory imposition of an otherwise-
constitutional sentence renders that sentence cruel and
unusual finds “no support in the text and history of the
Eighth Amendment.” Harmelin, supra, at 994.
Moreover, mandatory death penalty schemes were “a
perfectly reasonable legislative response to the concerns
expressed in Furman” regarding unguided sentencing
discretion, in that they “eliminat[ed] explicit jury discre-
tion and treat[ed] all defendants equally.” Graham v.
Collins, 506 U. S. 461, 487 (1993) (THOMAS, J., concur-
ring). And, as Justice White explained more than 30 years
ago, “a State is not constitutionally forbidden to provide
that the commission of certain crimes conclusively estab-
lishes that a criminal’s character is such that he deserves
death.” Roberts, supra, at 358 (dissenting opinion). Thus,
there is no basis for concluding that a mandatory capi-
tal sentencing scheme is unconstitutional. Because the
Court’s cases requiring individualized sentencing in the
capital context are wrongly decided, they cannot serve as a
valid foundation for the novel rule regarding mandatory
life-without-parole sentences for juveniles that the Court
announces today.
B
In any event, this Court has already declined to extend
its individualized-sentencing rule beyond the death pen-
alty context. In Harmelin, the defendant was convicted of
Cite as: 567 U. S. ____ (2012) 7
THOMAS, J., dissenting
possessing a large quantity of drugs. 501 U. S., at 961
(opinion of SCALIA, J.). In accordance with Michigan
law, he was sentenced to a mandatory term of life in prison
without the possibility of parole. Ibid. Citing the same
line of death penalty precedents on which the Court relies
today, the defendant argued that his sentence, due to its
mandatory nature, violated the Cruel and Unusual Pun-
ishments Clause. Id., at 994–995 (opinion of the Court).
The Court rejected that argument, explaining that
“[t]here can be no serious contention . . . that a sentence
which is not otherwise cruel and unusual becomes so sim-
ply because it is ‘mandatory.’ ” Id., at 995. In so doing,
the Court refused to analogize to its death penalty cases.
The Court noted that those cases had “repeatedly suggested
that there is no comparable [individualized-sentencing]
requirement outside the capital context, because of the
qualitative difference between death and all other penal-
ties.” Ibid. The Court observed that, “even where the
difference” between a sentence of life without parole and
other sentences of imprisonment “is the greatest,” such
a sentence “cannot be compared with death.” Id., at 996.
Therefore, the Court concluded that the line of cases re-
quiring individualized sentencing had been drawn at cap-
ital cases, and that there was “no basis for extending it
further.” Ibid.
Harmelin’s reasoning logically extends to these cases.
Obviously, the younger the defendant, “the great[er]” the
difference between a sentence of life without parole and
other terms of imprisonment. Ibid. But under Harmelin’s
rationale, the defendant’s age is immaterial to the Eighth
Amendment analysis. Thus, the result in today’s cases
should be the same as that in Harmelin. Petitioners, like
the defendant in Harmelin, were not sentenced to death.
Accordingly, this Court’s cases “creating and clarifying the
individualized capital sentencing doctrine” do not apply.
Id., at 995 (internal quotation marks omitted).
8 MILLER v. ALABAMA
THOMAS, J., dissenting
Nothing about our Constitution, or about the qualitative
difference between any term of imprisonment and death,
has changed since Harmelin was decided 21 years ago.
What has changed (or, better yet, “evolved”) is this Court’s
ever-expanding line of categorical proportionality cases.
The Court now uses Roper and Graham to jettison Har-
melin’s clear distinction between capital and noncapital
cases and to apply the former to noncapital juvenile of-
fenders.4 The Court’s decision to do so is even less sup-
portable than the precedents used to reach it.
III
As THE CHIEF JUSTICE notes, ante, at 8–9 (dissenting
opinion), the Court lays the groundwork for future incur-
sions on the States’ authority to sentence criminals. In its
categorical proportionality cases, the Court has considered
“ ‘objective indicia of society’s standards, as expressed
in legislative enactments and state practice’ to determine
whether there is a national consensus against the sentenc-
ing practice at issue.” Graham, 560 U. S., at ___ (slip op.,
at 10) (quoting Roper, 543 U. S., at 563). In Graham, for
example, the Court looked to “[a]ctual sentencing prac-
tices” to conclude that there was a national consensus
against life-without-parole sentences for juvenile nonhom-
icide offenders. 560 U. S., at ___ (slip op., at 11–14);
see also Roper, supra, at 564–565; Atkins v. Virginia, 536
U. S. 304, 316 (2002).
Today, the Court makes clear that, even though its
——————
4 In
support of its decision not to apply Harmelin to juvenile offend-
ers, the Court also observes that “ ‘[o]ur history is replete with laws and
judicial recognition that children cannot be viewed simply as miniature
adults.’ ” Ante, at 19 (quoting J. D. B. v. North Carolina, 564 U. S. ___,
___ (2011) (slip op., at 10–11) (some internal quotation marks omitted)).
That is no doubt true as a general matter, but it does not justify usurp-
ing authority that rightfully belongs to the people by imposing a consti-
tutional rule where none exists.
Cite as: 567 U. S. ____ (2012) 9
THOMAS, J., dissenting
decision leaves intact the discretionary imposition of life-
without-parole sentences for juvenile homicide offenders,
it “think[s] appropriate occasions for sentencing juveniles
to [life without parole] will be uncommon.” Ante, at 17.
That statement may well cause trial judges to shy away
from imposing life without parole sentences and embolden
appellate judges to set them aside when they are imposed.
And, when a future petitioner seeks a categorical ban on
sentences of life without parole for juvenile homicide
offenders, this Court will most assuredly look to the “actual
sentencing practices” triggered by this case. The Court
has, thus, gone from “merely” divining the societal consen-
sus of today to shaping the societal consensus of tomorrow.
* * *
Today’s decision invalidates a constitutionally permissi-
ble sentencing system based on nothing more than the
Court’s belief that “its own sense of morality . . . pre-empts
that of the people and their representatives.” Graham,
supra, at ___ (THOMAS, J., dissenting) (slip op., at 29).
Because nothing in the Constitution grants the Court the
authority it exercises today, I respectfully dissent.
Cite as: 567 U. S. ____ (2012) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 10–9646 and 10–9647
_________________
EVAN MILLER, PETITIONER
10–9646 v.
ALABAMA
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF ALABAMA
KUNTRELL JACKSON, PETITIONER
10–9647 v.
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF ARKANSAS
[June 25, 2012]
JUSTICE ALITO, with whom JUSTICE SCALIA joins,
dissenting.
The Court now holds that Congress and the legislatures
of the 50 States are prohibited by the Constitution from
identifying any category of murderers under the age of 18
who must be sentenced to life imprisonment without
parole. Even a 17½-year-old who sets off a bomb in a
crowded mall or guns down a dozen students and teach-
ers is a “child” and must be given a chance to persuade
a judge to permit his release into society. Nothing in
the Constitution supports this arrogation of legislative
authority.
The Court long ago abandoned the original meaning of
the Eighth Amendment, holding instead that the prohi-
bition of “cruel and unusual punishment” embodies the
“evolving standards of decency that mark the progress of a
maturing society.” Trop v. Dulles, 356 U. S. 86, 101 (1958)
2 MILLER v. ALABAMA
ALITO, J., dissenting
(plurality opinion); see also Graham v. Florida, 560 U. S.
___, ___ (2010) (slip op., at 7); Kennedy v. Louisiana, 554
U. S. 407, 419 (2008); Roper v. Simmons, 543 U. S. 551,
560–561 (2005); Atkins v. Virginia, 536 U. S. 304, 311–312
(2002); Hudson v. McMillian, 503 U. S. 1, 8 (1992); Ford v.
Wainwright, 477 U. S. 399, 406 (1986); Rhodes v. Chap-
man, 452 U. S. 337, 346 (1981); Estelle v. Gamble, 429
U. S. 97, 102 (1976). Both the provenance and philosoph-
ical basis for this standard were problematic from the
start. (Is it true that our society is inexorably evolving in
the direction of greater and greater decency? Who says
so, and how did this particular philosophy of history find
its way into our fundamental law? And in any event,
aren’t elected representatives more likely than unaccount
able judges to reflect changing societal standards?) But at
least at the start, the Court insisted that these “evolving
standards” represented something other than the personal
views of five Justices. See Rummel v. Estelle, 445 U. S.
263, 275 (1980) (explaining that “the Court’s Eighth
Amendment judgments should neither be nor appear to
be merely the subjective views of individual Justices”). In
stead, the Court looked for objective indicia of our society’s
moral standards and the trajectory of our moral “evolu
tion.” See id., at 274–275 (emphasizing that “ ‘judgment
should be informed by objective factors to the maximum
possible extent’ ” (quoting Coker v. Georgia, 433 U. S. 584,
592 (1977) (plurality opinion))).
In this search for objective indicia, the Court toyed with
the use of public opinion polls, see Atkins, supra, at 316,
n. 21, and occasionally relied on foreign law, see Roper v.
Simmons, supra, at 575; Enmund v. Florida, 458 U. S.
782, 796, n. 22 (1982); Thompson v. Oklahoma, 487 U. S.
815, 830–831 (1988); Coker, 433 U. S., at 596, n. 10 (plu
rality opinion).
In the main, however, the staple of this inquiry was the
tallying of the positions taken by state legislatures. Thus,
Cite as: 567 U. S. ____ (2012) 3
ALITO, J., dissenting
in Coker, which held that the Eighth Amendment prohib
its the imposition of the death penalty for the rape of an
adult woman, the Court noted that only one State permit
ted that practice. Id., at 595–596. In Enmund, where the
Court held that the Eighth Amendment forbids capital
punishment for ordinary felony murder, both federal law
and the law of 28 of the 36 States that authorized the
death penalty at the time rejected that punishment. 458
U. S., at 789.
While the tally in these early cases may be character
ized as evidence of a national consensus, the evidence
became weaker and weaker in later cases. In Atkins,
which held that low-IQ defendants may not be sentenced
to death, the Court found an anti–death-penalty consen
sus even though more than half of the States that allowed
capital punishment permitted the practice. See 536 U. S.,
at 342 (SCALIA, J., dissenting) (observing that less than
half of the 38 States that permit capital punishment
have enacted legislation barring execution of the mentally
retarded). The Court attempted to get around this prob
lem by noting that there was a pronounced trend against
this punishment. See id., at 313–315 (listing 18 States
that had amended their laws since 1986 to prohibit the
execution of mentally retarded persons).
The importance of trend evidence, however, was not
long lived. In Roper, which outlawed capital punishment
for defendants between the ages of 16 and 18, the lineup of
the States was the same as in Atkins, but the trend in
favor of abolition—five States during the past 15 years—
was less impressive. Roper, 543 U. S., at 564–565. Never
theless, the Court held that the absence of a strong trend
in support of abolition did not matter. See id., at 566
(“Any difference between this case and Atkins with respect
to the pace of abolition is thus counterbalanced by the
consistent direction of the change”).
In Kennedy v. Louisiana, the Court went further. Hold
4 MILLER v. ALABAMA
ALITO, J., dissenting
ing that the Eighth Amendment prohibits capital punish
ment for the brutal rape of a 12-year-old girl, the Court
disregarded a nascent legislative trend in favor of permit-
ting capital punishment for this narrowly defined and
heinous crime. See 554 U. S., at 433 (explaining that,
although “the total number of States to have made child
rape a capital offense . . . is six,” “[t]his is not an indication
of a trend or change in direction comparable to the one
supported by data in Roper”). The Court felt no need to
see whether this trend developed further—perhaps be
cause true moral evolution can lead in only one direction.
And despite the argument that the rape of a young child
may involve greater depravity than some murders, the
Court proclaimed that homicide is categorically different
from all (or maybe almost all) other offenses. See id.,
at 438 (stating that nonhomicide crimes, including child
rape, “may be devastating in their harm . . . but in terms
of moral depravity and of the injury to the person and
to the public, they cannot be compared to murder in their
severity and irrevocability” (internal quotation marks
and citation omitted)). As the Court had previously put
it, “death is different.” Ford, supra, at 411 (plurality
opinion).
Two years after Kennedy, in Graham v. Florida, any
pretense of heeding a legislative consensus was discarded.
In Graham, federal law and the law of 37 States and the
District of Columbia permitted a minor to be sentenced to
life imprisonment without parole for nonhomicide crimes,
but despite this unmistakable evidence of a national con
sensus, the Court held that the practice violates the
Eighth Amendment. See 560 U. S., at ___ (THOMAS, J.,
dissenting) (slip op., at 1–3). The Court, however, drew a
distinction between minors who murder and minors who
commit other heinous offenses, so at least in that sense
the principle that death is different lived on.
Today, that principle is entirely put to rest, for here we
Cite as: 567 U. S. ____ (2012) 5
ALITO, J., dissenting
are concerned with the imposition of a term of imprison
ment on offenders who kill. The two (carefully selected)
cases before us concern very young defendants, and de
spite the brutality and evident depravity exhibited by at
least one of the petitioners, it is hard not to feel sympathy
for a 14-year-old sentenced to life without the possibility of
release. But no one should be confused by the particulars
of the two cases before us. The category of murderers that
the Court delicately calls “children” (murderers under the
age of 18) consists overwhelmingly of young men who are
fast approaching the legal age of adulthood. Evan Miller
and Kuntrell Jackson are anomalies; much more typical
are murderers like Christopher Simmons, who committed
a brutal thrill-killing just seven months shy of his 18th
birthday. Roper, 543 U. S., at 556.
Seventeen-year-olds commit a significant number of
murders every year,1 and some of these crimes are incred
ibly brutal. Many of these murderers are at least as ma
ture as the average 18-year-old. See Thompson, 487 U. S.,
at 854 (O’Connor, J., concurring in judgment) (noting that
maturity may “vary widely among different individuals of
the same age”). Congress and the legislatures of 43 States
have concluded that at least some of these murderers
should be sentenced to prison without parole, and 28
States and the Federal Government have decided that for
some of these offenders life without parole should be man
datory. See Ante, at 20–21, and nn. 9–10. The majority of
this Court now overrules these legislative judgments.2
——————
1 Between 2002 and 2010, 17-year-olds committed an average com
bined total of 424 murders and nonnegligent homicides per year. See
Dept. of Justice, Bureau of Justice Statistics, §4, Arrests, Age of per
sons arrested (Table 4.7).
2 As the Court noted in Mistretta v. United States, 488 U. S. 361, 366
(1989), Congress passed the Sentencing Reform Act of 1984 to eliminate
discretionary sentencing and parole because it concluded that these
practices had led to gross abuses. The Senate Report for the 1984 bill
6 MILLER v. ALABAMA
ALITO, J., dissenting
It is true that, at least for now, the Court apparently
permits a trial judge to make an individualized decision
that a particular minor convicted of murder should be
sentenced to life without parole, but do not expect this
possibility to last very long. The majority goes out of its
way to express the view that the imposition of a sentence
of life without parole on a “child” (i.e., a murderer under
the age of 18) should be uncommon. Having held in Gra-
ham that a trial judge with discretionary sentencing
authority may not impose a sentence of life without parole
on a minor who has committed a nonhomicide offense, the
Justices in the majority may soon extend that holding to
minors who commit murder. We will see.
What today’s decision shows is that our Eighth Amend
ment cases are no longer tied to any objective indicia of
society’s standards. Our Eighth Amendment case law is
now entirely inward looking. After entirely disregarding
objective indicia of our society’s standards in Graham, the
Court now extrapolates from Graham. Future cases may
extrapolate from today’s holding, and this process may
continue until the majority brings sentencing practices
into line with whatever the majority views as truly
evolved standards of decency.
The Eighth Amendment imposes certain limits on the
——————
rejected what it called the “outmoded rehabilitation model” for federal
criminal sentencing. S. Rep. No. 98–225, p. 38 (1983). According to
the Report, “almost everyone involved in the criminal justice system now
doubts that rehabilitation can be induced reliably in a prison setting,
and it is now quite certain that no one can really detect whether or
when a prisoner is rehabilitated.” Ibid. The Report also “observed that
the indeterminate-sentencing system had two ‘unjustifi[ed] and ‘shame
ful’ consequences. The first was the great variation among sentences
imposed by different judges upon similarly situated offenders. The
second was uncertainty as to the time the offender would spend in
prison. Each was a serious impediment to an evenhanded and effective
operation of the criminal justice system.” Mistretta, supra, at 366
(quoting S. Rep. No. 98–225, at 38, 65 (citation omitted)).
Cite as: 567 U. S. ____ (2012) 7
ALITO, J., dissenting
sentences that may be imposed in criminal cases, but for
the most part it leaves questions of sentencing policy to be
determined by Congress and the state legislatures—and
with good reason. Determining the length of imprison
ment that is appropriate for a particular offense and a
particular offender inevitably involves a balancing of in
terests. If imprisonment does nothing else, it removes
the criminal from the general population and prevents
him from committing additional crimes in the outside
world. When a legislature prescribes that a category of
killers must be sentenced to life imprisonment, the legisla
ture, which presumably reflects the views of the elec
torate, is taking the position that the risk that these
offenders will kill again outweighs any countervailing
consideration, including reduced culpability due to imma
turity or the possibility of rehabilitation. When the major
ity of this Court countermands that democratic decision,
what the majority is saying is that members of society
must be exposed to the risk that these convicted murder
ers, if released from custody, will murder again.
Unless our cases change course, we will continue to
march toward some vision of evolutionary culmination
that the Court has not yet disclosed. The Constitution
does not authorize us to take the country on this journey.
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388 F.2d 310
Victor J. VEATCH, Appellant,v.Stanley R. RESOR, Secretary of the Army, Appellee.
No. 9700.
United States Court of Appeals Tenth Circuit.
December 21, 1967.
Appeal from the United States District Court for the District of Colorado.
Before BREITENSTEIN and SETH, Circuit Judges.
ORDER REMANDING WITH DIRECTIONS
PER CURIAM.
1
This matter coming before the Court on the written stipulation of the parties, and the Court being fully advised in the premises,
2
Doth find: That the controversy between the parties has been compromised and settled and that the issues involved therein are now moot; and, therefore, that the actions should be remanded to the United States District Court for the District of Colorado and the judgment vacated and the cause dismissed; and
3
It is ordered that the above-entitled action be remanded to the United States District Court for the District of Colorado and that the said Court shall vacate the judgment entered, 266 F.Supp. 893, and dismiss the complaint and the cause, with each party to pay his or its own costs.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10239
Plaintiff - Appellee, D.C. No. 4:12-cr-00727-JGZ
v.
MEMORANDUM*
EDUARDO PENALOZA-CARLON,
a.k.a. Eduarto Carlon Penaloza,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Eduardo Penaloza-Carlon appeals from the district court’s judgment and
challenges the time-served sentence imposed upon remand for resentencing.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Penaloza-Carlon’s counsel
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
has filed a brief stating that there are no grounds for relief, along with a motion to
withdraw as counsel of record. We have provided Penaloza-Carlon the opportunity
to file a pro se supplemental brief. No pro se supplemental brief or answering brief
has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80 (1988), discloses no arguable grounds for relief on direct appeal.
Counsel’s motion to withdraw is GRANTED.
AFFIRMED.
2 14-10239
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3IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Meshoppen Transport, Inc., :
Petitioner :
:
v. : No. 334 C.D. 2018
: Submitted: July 13, 2018
Workers’ Compensation :
Appeal Board (Pfister), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: October 17, 2018
Meshoppen Transport, Inc. (Employer) petitions for review of an
adjudication of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of the Workers’ Compensation Judge (WCJ) to grant Jean Marie Pfister’s
(Claimant) fatal claim petition. The sole issue before this Court is whether the Board
erred in determining that Claimant’s husband, Robert Pfister (Decedent), was acting
in the course and scope of his employment with Employer at the time of his heart
attack. Discerning no error, we affirm the Board.
Claimant filed a fatal claim petition pursuant to the Workers’
Compensation Act (Act),1 alleging that Decedent suffered a fatal heart attack on
September 23, 2015, following an Employer-required medical examination.
Employer denied all allegations, and hearings were held before the WCJ.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501–2708.
With the agreement of the parties, the WCJ bifurcated the proceeding
to decide first whether Decedent was acting within the course and scope of his
employment at all relevant times. The parties stipulated that Decedent worked for
Employer as a truck driver and that this job required him to maintain a valid
commercial driver’s license. Stipulation of Facts, ¶2; Reproduced Record at 16a
(R.R. __). On September 23, 2015, Decedent went to WorkWell Occupational
Services (WorkWell) to undergo a medical examination for his commercial driver’s
license. Employer scheduled the examination for Decedent. Id., ¶3; R.R. 16a.
As part of the examination, Decedent was asked to perform “vigorous
exercise for one minute.” Id., ¶4; R.R. 17a. As a result, his heart rate went from 76
at rest to 100. WorkWell’s report indicates that Decedent had a “regular heart rate
post exercise.” Id. The examination took 15 to 25 minutes.
Following the examination, Decedent drove his company truck to Dr.
Edward G. Zurad’s office so that Dr. Zurad could sign his driver’s license
paperwork. Decedent then drove to one of Employer’s locations to pick up a load
for delivery. As he exited his truck, Decedent fell and landed on his elbows. He
reported to a co-worker that he felt dizzy and nauseous. Decedent “passed out” for
a minute or two. Id., ¶8; R.R. 17a. His co-workers dialed 911 but cancelled the call
after Decedent insisted that “he was okay.” Id. Decedent stated that he had not eaten
breakfast and was given water and a muffin. A co-worker drove Decedent back to
Dr. Zurad’s office, where he collapsed and was admitted to the hospital. Decedent
was diagnosed with an acute myocardial infarction, and he died two days later.
Claimant testified that Decedent did not exercise regularly. He worked
over the weekend, and “[s]ometimes he’d be gone two, three weeks at a time.” Notes
of Testimony (N.T.), 5/23/2016, at 11-12; R.R. 54a-55a. Claimant described
2
Decedent’s lifestyle as “sedentary”; he spent most of his free time at home sitting
and relaxing. Id. at 11; R.R. 54a.
Employer presented the testimony of Patrick Musheno, its safety
director. He stated that Decedent worked for Employer as an “over-the-road” truck
driver for 10 to 12 years, transporting goods “anywhere in the 48 states.” N.T.
7/11/2016, at 10; R.R. 68a. To do this work, Decedent was required to undergo a
“[United States] Department of Transportation physical” every year. Id. at 18; R.R.
76a. Musheno testified that Employer scheduled and paid for the September 23,
2015, physical examination for Decedent. Employer selected WorkWell as its
medical provider to conduct physical examinations for its employees and report the
results to Employer. Musheno explained that Decedent was free to schedule an
examination at a place and time of his choosing; however, Employer would
reimburse Claimant for the cost of the examination only if it was done at WorkWell.
Id. at 27; R.R. 85a. Musheno testified that Decedent was not paid for his time while
attending the examination.
By interlocutory order of September 9, 2016, the WCJ concluded that
Decedent was acting within the course and scope of his employment at the time he
suffered the heart attack. By order of March 2, 2017, the WCJ granted Claimant
fatal claim benefits. The WCJ found, inter alia, that Decedent was required as a
condition of his employment to maintain a commercial driver’s license. The WCJ
noted that Musheno “acknowledge[d] and agree[d] that [D]ecedent was required to
attend the [physical] examination at WorkWell – paid for by the [E]mployer herein
– in order for the [D]ecedent to maintain his [commercial driver’s] license and
remain a truck driver for [E]mployer [].” WCJ Decision at 5; Findings of Fact, ¶8.
3
Further, Employer scheduled the examination for Decedent.2 Employer appealed to
the Board. Affirming the WCJ’s decision, the Board held that Decedent was
furthering Employer’s business by attending the medical examination. Employer
then petitioned for this Court’s review of the Board’s adjudication.
On appeal,3 Employer argues that the Board erred in concluding that
Decedent’s heart attack occurred during the course and scope of his employment.
Decedent attended the medical examination outside his work hours, and he was not
paid for his time at the examination. Citing Reichert v. Workers’ Compensation
Appeal Board (Foxdale Village), 126 A.3d 358 (Pa. Cmwlth. 2015), Employer also
observes that Decedent “could have refused to take the [] exam and opt not to
continue his work as an over the road truck driver.” Employer Brief at 12. Further,
Decedent was free to schedule an examination with any medical provider. Employer
maintains that it was the federal regulations, not Employer, that required Decedent
to take the physical examination to maintain his commercial driver’s license.
Employer asserts that the Board and the WCJ mischaracterized Musheno’s
testimony in finding that Employer required Decedent to attend the examination.
To be eligible for compensation, an injured employee must establish
that his injury occurred in the course of employment and that it was related thereto.
2
The WCJ further found Decedent’s fatal heart attack was caused by the vigorous exercise he
performed during the medical examination at WorkWell. The WCJ credited the testimony of Dr.
Raphael Bonita, M.D., who opined that Claimant’s physical exertion during the vigorous exercise
caused a plaque rupture, which led to an occlusion and caused Decedent’s fatal myocardial
infarction. The Board affirmed the WCJ’s finding, which Employer does not challenge before this
Court.
3
This Court’s review of a workers’ compensation adjudication determines whether an error of law
or a constitutional violation was committed or whether the findings of fact are supported by
substantial, competent evidence. Myers v. Workers’ Compensation Appeal Board (University of
Pennsylvania and Alexsis, Inc.), 782 A.2d 1108, 1110 n.1 (Pa. Cmwlth. 2001).
4
Section 301(c) of the Act, 77 P.S. §411.4 Injuries sustained by an employee while
“actually engaged in the furtherance of the business or affairs of the employer” are
compensable whether the injuries occurred upon the employer’s premises or
elsewhere. 77 P.S. §411; Penn State University v. Workers’ Compensation Appeal
Board (Smith), 15 A.3d 949, 952 (Pa. Cmwlth. 2011). The operative phrase
“actually engaged in the furtherance of the business or affairs of the employer” is
given a liberal construction. Southeastern Pennsylvania Transportation Authority
v. Workers’ Compensation Appeal Board (McDowell), 730 A.2d 562, 564 (Pa.
Cmwlth. 1999). Whether an employee is acting in the course of employment at the
time of an injury is a question of law, which must be determined based on the
findings of fact made by the WCJ. Id.
When determining whether an employee is furthering an employer’s
business or affairs when he sustains an injury during non-work hours, we consider
whether the employer encouraged the activity at issue; whether the activity furthered
a specific interest of employer; and whether the activity was necessary to maintain
the skills required by the employer’s job. Pinn v. Workers’ Compensation Appeal
Board (Hemlock Girl Scout Council), 754 A.2d 40, 43 (Pa. Cmwlth. 2000).
Precedent on course and scope of employment informs our analysis. In
Hemmler v. Workmen’s Compensation Appeal Board (Clarks Summit State
4
Section 301(c) provides in pertinent part:
The terms “injury” and “personal injury,” as used in this act, shall be construed to
mean an injury to an employe, regardless of his previous physical condition, except
as provided under subsection (f), arising in the course of his employment and
related thereto…. The term “injury arising in the course of his employment,” as
used in this article … shall include all … injuries sustained while the employe is
actually engaged in the furtherance of the business or affairs of the employer,
whether upon the employer’s premises or elsewhere….
77 P.S. §411.
5
Hospital), 569 A.2d 395 (Pa. Cmwlth. 1990), a hospital employee was injured during
his lunch break while playing basketball with co-workers in a gym on the employer’s
premises. The evidence demonstrated that the employer encouraged its employees
to participate in these physical activities to improve their health, relieve work-related
stress and to promote a better mental attitude in the performance of their work. The
employer posted information on the bulletin board encouraging employees to engage
in sports activities, and employees regularly used the employer’s gymnasium during
breaks to play basketball. Based upon this evidence, this Court held that the claimant
was engaged in an activity in furtherance of the employer’s business or affairs, and,
therefore, was in the course of his employment when he was injured.
In Mann v. City of Philadelphia, 563 A.2d 1284 (Pa. Cmwlth. 1989), a
lifeguard employed by the city drowned while he was swimming during his lunch
break in the city pool, which was closed at the time. Because the claimant was
required to maintain his swimming skills for the purpose of Red Cross certification
and was permitted to use the pool at the time of his drowning, this Court concluded
that he was furthering the employer’s interest at the time of the incident regardless
of whether the swimming activity also “furthered his personal interest.” Id. at 1287.
Here, it is undisputed that Decedent was required to undergo an annual
physical examination to maintain his commercial driver’s license. Musheno testified
that the physical examination was necessary for Decedent to remain an interstate
driver for Employer. Although Decedent was free to schedule an examination at a
place and time of his choosing, Employer would pay for the examination only if
done by WorkWell. Further, Musheno testified that Employer received a copy of
Decedent’s examination results from WorkWell. These facts show that Decedent
attended the physical examination at WorkWell because Employer encouraged it so
6
that he could renew his commercial driver’s license. We conclude that Decedent
was engaged in an activity in furtherance of Employer’s business during the physical
examination at WorkWell and, therefore, the course of his employment when he had
his heart attack.
Employer contends that Decedent attended the physical examination
not “solely” in the furtherance of Employer’s business but, rather, to allow “the
[D]ecedent to continue working as a truck driver for any employer willing to hire
him.” Employer Brief at 13, 17. In Mann, 563 A.2d 1284, the lifeguard was required
to meet certain physical fitness standards to maintain his Red Cross certification.
Likewise, here Decedent had to attend the physical examination to maintain his
commercial driver’s license, which was a condition of his continued employment as
an interstate truck driver. As we held in Mann, the relevant inquiry is whether
Decedent furthered Employer’s business or affairs at the time he suffered the heart
attack; it is immaterial whether the activity also furthered Decedent’s personal
interest in continued employment. Id. at 1287.
Employer further argues that the Board erred by distinguishing the
subject case from Reichert, 126 A.3d 358. In that case, the claimant was required to
undergo a functional capacity evaluation to be allowed to return to work following
a period of non-work-related disability. The claimant was injured during the
evaluation. The Board denied the claimant workers’ compensation benefits, and this
Court affirmed. We stated that “an injury that arises while participating in a pre-
requisite for employment is only work-related insofar as the event has the potential
to alter the employment relationship by allowing the claimant to return to
employment, but it does not arise in the course of employment.” Reichert, 126 A.3d
at 364. Employer argues that, similar to the functional capacity evaluation,
7
Claimant’s physical examination was a prerequisite for employment. Decedent did
not have to take the examination if he “opt[ed] not to continue his work.” Employer
Brief at 12.
Reichert is inapposite. The claimant in Reichert had been out of work
for a significant period of time. She was held ineligible for workers’ compensation
benefits because she did not prove that she was an employee at the time of her injury.
We emphasized that, to be entitled to workers’ compensation benefits, the claimant
must prove that an employer/employee relationship exists. Reichert, 126 A.3d at
361. This is not an issue in the instant case. Employer does not dispute that
Decedent was an active employee and had been for over a decade at the time he
suffered the heart attack. Decedent took the physical examination not to “return to
employment” but, rather, to remain employed as a truck driver for Employer. Id. at
364. We reject Employer’s argument based on Reichert.
For all of the foregoing reasons, we affirm the Board’s order.
________________________________________________
MARY HANNAH LEAVITT, President Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Meshoppen Transport, Inc., :
Petitioner :
:
v. : No. 334 C.D. 2018
:
Workers’ Compensation :
Appeal Board (Pfister), :
Respondent :
ORDER
AND NOW, this 17th day of October, 2018, the order of the Workers’
Compensation Appeal Board dated February 14, 2018, in the above-captioned matter
is hereby AFFIRMED.
_______________________________________________
MARY HANNAH LEAVITT, President Judge
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295 F.Supp.2d 611 (2003)
Linda K. LOVELL, Plaintiff,
v.
BBNT SOLUTIONS, LLC, et al., Defendants.
No. CIV.A.03-271-A.
United States District Court, E.D. Virginia, Alexandria Division.
December 11, 2003.
*612 *613 *614 Ellen Kyriacou Renaud, Swick & Shapiro, P.C., Washington, DC, for Plaintiffs/Movants.
Tara Nicole Mora, McGuireWoods LLP, Washington, DC, for Defendants/Respondents.
MEMORANDUM OPINION
ELLIS, District Judge.
In this Title VII[1] and Equal Pay Act[2] ("EPA") sex discrimination action based on salary and raise disparities, defendant-employers BBNT Solutions, LLC and Verizon Communications, Inc. seek to set aside the jury's verdict in favor of plaintiff-employee, Linda Lovell, through their Renewed Motion for Judgment as a Matter of Law pursuant to Rule 50(b), Fed.R.Civ.P., or, in the alternative, Motion for a New Trial pursuant to Rule 59(a), Fed.R.Civ.P. As a result, at issue are the following questions:
(i) whether plaintiff presented a prima facie case under both Title VII and the EPA regarding her disparate pay claim;
(ii) whether plaintiff presented a prima facie case under Title VII with respect to her raise claim;
(iii) whether there is sufficient evidence in the record to support the award of compensatory damages; and
(iv) whether the jury's award of economic damages under Title VII and the EPA was excessive.
I.[3]
Plaintiff, Linda Lovell, began working at *615 BBN[4] as a materials engineer in the Marine Engineering Group in January 1994. BBN, a subsidiary of Verizon Communication, Inc., provides contract research and development services across a broad spectrum of physical and information sciences, predominantly to Department of Defense research organizations. Currently, BBN is divided into nine departments, including the Sensor Systems and Technology Department, which is headed by Jude Nitsche. The Marine Engineering Group, headed by Jay Miner, is a component of the Sensor Systems and Technology Department; its focus is on mature technology, primarily in support of ship design improvement. The Marine Engineering Group, in turn, is comprised of two subgroups: Materials and Acoustics. The Materials subgroup supports the United States Navy and performs tests, evaluations, and drafts specifications for nonmetallic materials for use on Navy ships. The Acoustics subgroup supports both government and private contractors in the prediction, measurement, and design of acoustic instruments to reduce excessive noise and vibration on Navy ships and civilian ships.
Plaintiff holds an undergraduate degree in textile chemistry from the University of Delaware and a master's degree in business administration from Southern Illinois University. In her graduate training, she specialized in program management. Prior to her employment at BBN, plaintiff worked as a junior chemist at American Cyanamid in New Jersey for two years, a materials engineer at ILC Dover, and then as a physical scientist in the Non-Metallic Materials Office of the Naval Sea Systems Command ("NAVSEA") for six years, and finally in 1992, plaintiff transferred to the Department of Transportation ("DOT") and worked in the Radioactive Materials Group of DOT's Research and Special Projects Administration. Her current title at BBN is Senior Staff Consultant Technology.
Plaintiff, at her request, works a reduced-hour schedule of thirty (30) hours per week at BBN. Despite her reduced-hour schedule, plaintiff testified that she made herself available on her day off to attend meetings with clients and perform other BBN work. Based on a thirty-hour work week, plaintiff's current salary is $77,500. Testimony at trial revealed that plaintiff's primary job duties were (i) to write proposals, (ii) to market her services and bring in new business to BBN, and (iii) to perform technical work on projects.
Important to the rating and advancement of employees at BBN is their "billability," by which is meant how much of their time is spent on work that can be billed to a contract. In general, hours spent writing proposals and marketing or bringing in business to BBN are not billable to a contract; whereas technical work performed on a project is billed to the appropriate contract. Billable hour goals were set for BBN employees, including plaintiff.
At trial, plaintiff testified that her male coworkers did not provide her with the opportunity to work and charge billable hours on their projects, although she provided them with that opportunity on her projects. Plaintiff further testified that her male co-workers sometimes charged hours to projects she was managing without her knowledge, resulting in budget overruns on some of these projects. She also testified that, in addition to meeting her billable hour goals, she was also required to market and bring in new business to BBN in order to enable her to *616 maintain and meet her billable hour goals. There was also evidence that plaintiff, as the only female in her group, was the only employee in her group who did not receive a laptop computer and that, on one occasion, she was not invited to a training session.
In connection with her EPA and Title VII disparate pay claims, plaintiff sought to compare herself to two male employees at BBN who received higher salaries: Pete Gauthier and Charles McNamara. It became evident at trial, however, that Gauthier, the Technical Lead of the Materials group, was not a suitable comparator, as his position entailed significant supervisory and other duties that were not part of plaintiff's position. Therefore, at the close of all the evidence, defendants' renewed motion for judgment as a matter of law pursuant to Rule 50, Fed.R.Civ.P., was granted on this issue and plaintiff was thereafter limited to McNamara as the sole appropriate comparator.[5]
According to the record, McNamara holds an undergraduate degree in mechanical engineering from Marquette University and a master's degree in structural engineering from George Washington University. Before joining BBN in June 2002, McNamara worked first as a structural engineer at the Naval Surface Warfare Center. He then joined Anteon, a competitor of BBN, first as a senior engineer, next as manager, thereafter as corporate program manager, and finally as marketing director. At the time McNamara applied for a position at BBN, he was earning $104,000 at Anteon. In the salary bargaining process, he asked for a starting salary of $110,000 at BBN. BBN countered with $105,000, which McNamara accepted. In April 2003, McNamara received a 2.38% raise that increased his salary to $107,500. McNamara works a forty (40) hour per week schedule at BBN. His current title is Senior Staff Consultant Program Management.
Defendants elicited testimony from Miner that, while at Anteon, McNamara worked on two multimillion dollar contracts for which BBN was also competing. BBN ultimately lost these contracts to Anteon. Miner testified that he decided to hire McNamara because it was an excellent opportunity to take a strong marketing person from a competitor. The evidence at trial also suggested, however, that after he was hired, McNamara did not, on his own, bring any new business into BBN. Defendants offered McNamara's prior salary and experience as their legitimate, nondiscriminatory reason for paying him more than they paid plaintiff. At trial, however, plaintiff confronted Nitsche with his deposition testimony in which he had stated that if market conditions required paying an outsider a higher salary to join BBN, salaries within the company would rise. But Nitsche had also testified that marine engineering was not a "hot area" that required such salary increases.
Plaintiff's Title VII raise claim is based on the 1.36% pay raise she received in 2002, a raise she claims was less than the average percentage raise given to others in her group with similar performance ratings. Pay raises at BBN are based on a number of factors, including performance reviews. In her 2001 performance evaluation, *617 plaintiff initially received an overall performance rating of "Room for Improvement," which, at Miner's insistence, was later altered to a rating of "High Standard." Also noted on plaintiff's evaluation was an instance where plaintiff "mistakenly obligated a large sum of funding without preparing the necessary requisitions for senior management/finance approval." At his deposition, Nitsche testified that plaintiff's raise was not increased after the change to "High Standard" was made because the compensation system was closed. At trial, however, he testified that he did not change plaintiff's raise to reflect the evaluation change because he wanted to convey to plaintiff that her improper purchase requisition was a serious performance issue. Nitsche also testified that "High Standard" is a term BBN coined to mean "average" and that it covers a broad spectrum of the BBN population "[n]ot just the top of the bell curve, but most of the bell curve." For her part, plaintiff testified at trial that employees receiving a "High Standard" rating typically received a four to six percent raise. With respect to the purchase requisition issue, she testified that she had followed the same procedures in this instance as she always had and had never before been reprimanded; this was the first time, she testified, that she had been told she needed to follow a different procedure.
The year that plaintiff received the 1.36% raise (2002), she also received $8,967 in incentive pay. On cross-examination, plaintiff testified that prior to 2002, she had received satisfactory pay raises every year. In 2003, the year after she received the 1.36% raise, plaintiff received a 4% raise.
At the close of the trial, the jury returned a verdict in favor of the plaintiff on each of the three claims submitted to it (i) the EPA claim, (ii) the Title VII pay claim, and (iii) the Title VII raise claim. For damages, the jury awarded plaintiff a total of $400,000 for her two Title VII claims: $325,000 in compensatory damages and $75,000 in back pay.[6] The jury also awarded plaintiff $100,000 on her EPA claim. Defendants now seek to set aside the jury's verdict in favor of plaintiff pursuant to Rule 50(b), Fed.R.Civ.P., or, alternatively move for a new trial pursuant to Rule 59(a), Fed.R.Civ.P.
II.
Jury verdicts are entitled to the "utmost respect." Szedlock v. Tenet, 139 F.Supp.2d 725, 729 (E.D.Va.2001), aff'd, 61 Fed. Appx. 88 (4th Cir.2003). Nevertheless, under Rule 50, Fed.R.Civ.P., if "there is no legally sufficient evidentiary basis" for a jury's verdict, a motion for judgment as a matter of law must be granted. Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir.1996). In assessing whether this standard has been met, courts must view the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 259 (4th Cir.2001). Courts may not substitute their judgment for that of the jury or make credibility determinations. Price, 93 F.3d at 1249. If there is evidence on which a reasonable jury could return a verdict in favor of the nonmoving party, *618 that verdict must be upheld. Id. at 1249-50.
The standard governing motions for a new trial pursuant to Rule 59, Fed. R.Civ.P., is significantly different. On a Rule 59 motion, a district court may set aside the jury's verdict and grant a new trial only if "(1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict." Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 594 (4th Cir.1996). And, on a Rule 59 motion, courts may make credibility judgments in determining the clear weight of the evidence. Knussman v. Maryland, 272 F.3d 625, 647 (4th Cir.2001).
Each of defendants' claims is separately addressed under these standards.
A. The Equal Pay Act Claim
The EPA prohibits employers from paying an employee at a rate less than that paid to employees of the opposite sex for equal work. See 29 U.S.C. § 206(d)(1). Under the Act, a plaintiff must first establish a prima facie case of wage discrimination. See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 613 (4th Cir.1999). And, to establish a prima facie case, a plaintiff must prove: (1) that the defendant employer pays different wages to employees of opposite sexes; (2) that these employees hold jobs that require equal skill, effort, and responsibility; and (3) that such jobs are performed under similar working conditions. Id. Once a plaintiff establishes a prima facie case, the burden of production and persuasion shifts to defendant employers to persuade the jury by a preponderance of the evidence that any existing wage differential resulted from one of four enumerated statutory defenses:
"(i) a seniority system;
(ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex."[7] 29 U.S.C. § 206(d)(1); see also Brinkley, 180 F.3d at 613-14.
Significantly, a plaintiff need not prove that her job is identical to a higher paid job; rather, the test is one of substantial equality. See Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 291 (4th Cir.1974). Thus, application of the EPA depends not simply on job titles, descriptions, or classifications, but rather on the actual requirements, performance, and content of the jobs being compared. Brennan, 503 F.2d at 288. Under the EPA, therefore, plaintiff was required to select a specific male comparator, see Strag v. Bd. of Trustees, 55 F.3d 943, 950 (4th Cir.1995), and show that she and her comparator shared a common core of tasks in their jobs. Hassman v. Valley Motors, Inc., 790 F.Supp. 564, 567 (D.Md.1992) (cited for this proposition with approval in *619 Dibble v. Regents of Univ. of Maryland System, 89 F.3d 828, 1996 WL 350019 (Table) (4th Cir.1996) (unpublished)). In this respect, plaintiff's male comparator was Charles McNamara.[8]
Defendants argue that plaintiff failed to establish her prima facie case under the EPA. In this regard, they contend first that plaintiff and McNamara did not perform jobs requiring equal effort because McNamara is a salaried employee who works a forty-hour work week, while plaintiff, also a salaried employee, works a reduced-hour schedule of thirty hours per week. According to defendants, this difference in hours alone, under the EPA, precludes a valid comparison between plaintiff and McNamara. Plaintiff contends, however, that the words of the statute itself allow for such a comparison, as the EPA prohibits an employer from discriminating between employees on the basis of sex "by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work ...." 29 U.S.C.A. § 206(d)(1) (emphasis added). Plaintiff does not contend that a comparison between employees who work a different number of hours should always be allowed, but rather that this determination should be made by focusing on "the `actual duties' performed by each employee as part of the job," not hours alone. Hassman v. Valley Motors, Inc., 790 F.Supp. 564, 568 (D.Md. 1992).
Neither the statute nor controlling circuit authority squarely addresses whether full-time employees are, on that basis alone, unsuitable comparators for part-time employee plaintiffs. Although the statutory language does not conclusively answer this question, Congress's use of the word "rate" points persuasively to the conclusion that a valid comparison is not necessarily foreclosed merely on the basis of a difference in the number of hours worked per week. To be sure, where the putative comparator works only a small fraction of the hours a claimant works, that person may, as a matter of law, be ineligible to serve as a comparator under the EPA. But where, as here, the plaintiff is required to work three quarters of the hours worked by the putative comparator and in fact on occasion works more, and where the plaintiff's actual tasks, duties, and responsibilities are essentially similar to those of the putative comparator, then the issue becomes one of fact for the jury to resolve.
This conclusion finds support in the pertinent regulations and in authority from other circuits. Thus, in the Department of Labor's regulations, it is stated that "[e]ffort is concerned with the measurement of the physical or mental exertion needed for the performance of a job." 29 C.F.R. § 1620.16(a). And, consistent with this is the test for determining equality of effort under the EPA set forth in the Fifth Circuit's oft-cited decision in Hodgson v. Brookhaven General Hospital:
[J]obs do not entail equal effort, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of all those whose pay differentials are to be justified in terms of them, and (3) are on an economic value commensurate with the pay differential.
436 F.2d 719, 725 (5th Cir.1970) (cited for this test in Hodgson v. Fairmont Supply *620 Co., 454 F.2d 490, 493 (4th Cir.1972)). Thus, the proper focus is whether there are any additional tasks or job duties. While it is undisputed that McNamara worked ten hours more per week than plaintiff, defendants do not argue, nor does the record reflect, that during his ten additional hours at work McNamara performed any additional tasks that plaintiff did not perform. Instead, the evidence at trial showed that both plaintiff and McNamara were "senior engineers." Tr. Vol. 2 at 256. The testimony of several witnesses confirmed that the primary duties of both plaintiff and McNamara were to develop new business, manage programs, and perform research and development. See Tr. Vol. 1 at 110-11 (Lovell's duties); Tr. Vol. 3 at 56 (McNamara's duties); Tr. Vol. 2 at 172-74 (Miner testifying about duties of senior engineers). Both plaintiff and McNamara report to and are reviewed by the same supervisor, Jay Miner. Neither employee had supervisory duties of their own. While more hours at work may sometimes be the consequence of additional duties and responsibilities, the evidence in this case does not suggest that this was the case here. Therefore, within the Hodgson framework, defendants' only argument appears to be that the requirement that McNamara be at work for an additional ten hours per week is an additional task or duty that plaintiff is not required to undertake because of her reduced-hour schedule. Assuming arguendo that additional hours at work can be considered an additional task or duty, this argument fails under the Hodgson test because these ten additional hours are not "on an economic value commensurate with the pay differential" between plaintiff and McNamara. Hodgson, 436 F.2d at 725. Simply put, it was open to the jury to find on the record in this case that plaintiff is paid at a lower rate than the rate for McNamara.
Defendants' reliance on LaRocco v. Nalco Chemical Co., 1999 WL 199251 (N.D.Ill. 1999), and Ilhardt v. Sara Lee Corp., 118 F.3d 1151 (7th Cir.1997), for the proposition that reduced-hour employees can never be compared to full-time employees is not convincing. This type of categorical rule is unwarranted under the EPA, where it is clear that the Act "must be applied on a case by case basis to factual situations that are, for practical purposes, unique." Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 286 (4th Cir.1974). Ilhardt, moreover, is distinguishable; it is a pregnancy discrimination case in which the plaintiff was a part-time employee working three days per week. 118 F.3d at 1152. She filed a disparate treatment claim under the Pregnancy Discrimination Act, arguing that she was discharged as part of a reduction in force because she was pregnant. Her employer argued that she was discharged because she was a part-time employee, not because she was pregnant. Id. at 1155. Because there were no other part-time employees, the court there concluded that Ilhardt could not show that others similarly situated were not discharged, reasoning that "full-time employees are simply not similarly situated to part-time employees." Id. In a context where part-time status itself is the employer's asserted reason for discharging an employee, one can understand a court's requirement that the plaintiff compare herself to other part-time employees who were not pregnant in order to warrant an inference of pregnancy discrimination. Thus, Ilhardt in no way supports a categorical rule that all "full-time employees are simply not similarly situated to part-time employees" in EPA cases. To the contrary, in EPA cases, the specific facts should be examined to determine whether a proposed comparator performs substantially equal work, and "whether the work of two employees is substantially equal *621 must be resolved by the overall comparison of work, not its individual segments." Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 799 (6th Cir.1998).
The Fourth Circuit's decision in Dibble v. Regents of the University of Maryland System, is supportive of the principle that the specific facts of a case, not a categorical rule, should determine whether a part-time plaintiff can appropriately designate a full-time comparator. There, a part-time professor attempted to compare herself to full-time faculty members. On these facts, the panel noted that "[t]he undisputed evidence in the record reveals that the duties of a part-time professor are far less demanding than those of an assistant professor or another full-time faculty member." 89 F.3d 828 (Table), 1996 WL 350019, *3 (4th Cir.1996) (emphasis added). The panel went on to discuss in great detail the job duties of the plaintiff and her proposed male comparator.[9] Thus, Dibble did not apply a categorical part-time/full-time rule; the panel instead examined the evidence in the record to determine that on the record in that case, the part-time plaintiff could not designate a full-time professor comparator because their duties were different. The key is therefore a difference in duties, not a difference in hours.
Under defendants' theory, a female employee who works thirty-eight hours per week cannot compare herself to a male employee who works forty hours per week, even if their jobs are otherwise exactly the same and the pay differential cannot be explained by the extra hours. Indeed, such a rule would allow an employer to avoid the EPA's strictures by simply employing women in jobs with slightly reduced-hour schedules and paying them at a lower rate than their male counterparts. Such a loophole would completely subvert the EPA's purpose. It follows, therefore, that the EPA, properly construed, does not categorically preclude a part-time plaintiff from establishing a prima facie pay discrimination claim by designating a full-time comparator. The Act's legislative history supports this conclusion and makes clear that the difference in hours worked by a comparator should be considered after the plaintiff has made her prima facie case, as an affirmative defense to paying a male more based on a factor other than sex. Thus, this history reflects that
It is the intent of this committee that any discrimination based upon any of these exceptions shall be exempted from the operation of this statute. As it is impossible to list each and every exception, the broad general exclusion has been also included. Thus, among other things, shift differentials, restrictions on or differences based on time of day worked, hours of work, lifting or moving heavy objects, differences based on experience, training, or ability would also be excluded.
H.R.Rep. No. 309, 88th Cong., 1st Sess. 3, U.S.Code Cong. & Admin. News 1963, p. 687 (emphasis added). Because "hours of work" is listed as an example of an affirmative defense in the catchall "factor other than sex" exception under the Act, this implies that the number of hours worked is not determinative at the prima facie stage in all cases.[10] Thus, because there is no evidence in the record that McNamara *622 performed additional tasks or duties as part of his job on an economic value commensurate with the pay differential between plaintiff and McNamara, a reasonable jury could conclude that plaintiff and McNamara perform jobs requiring equal effort. Consequently, defendants are not entitled to judgment as a matter of law on this point.
This does not end the analysis of defendants' challenge to the jury's verdict under the EPA, for defendants also contend that McNamara is not a viable comparator under the Act because plaintiff and McNamara did not perform jobs requiring equal skill and responsibility. Yet, in this respect, defendants point to no record evidence showing that McNamara's job entailed greater responsibility than plaintiff's job. In making their "equal skill" argument, defendants note that McNamara has an undergraduate degree in mechanical engineering and a master's degree in structural engineering, as well as experience in structural acoustics, while plaintiff does not. The relevant comparison here, however, is a comparison of the skills required by the job, not a comparison of the skills possessed by individual employees. See Goodrich v. IBEW, 815 F.2d 1519 (D.C.Cir.1987); Glenn v. General Motors Corp., 841 F.2d 1567 (11th Cir.1988). Possession of a skill not needed to perform a job "cannot be considered in making a determination regarding equality of skill."[11] 29 C.F.R. § 1620.15(a). The record evidence does not support the argument that McNamara's position, "Senior Staff Consultant Program Management," requires a master's degree in structural engineering or experience in acoustics.
In sum, viewing the evidence in the light most favorable to plaintiff, a reasonable jury could conclude from the trial evidence that McNamara and Lovell performed substantially equal work. Given this, judgment as a matter of law for defendants on this issue is unwarranted. Similarly, the jury's conclusion is not clearly against the weight of the evidence so as to warrant the grant of a new trial on this issue.
Defendants' final attack on the jury's EPA verdict is that even if plaintiff established a prima facie case under the EPA, defendants nonetheless presented unrebutted evidence of factors other than sex for paying McNamara more. Specifically, defendants correctly argue that "[o]ffering a higher starting salary in order to induce a candidate to accept the employer's offer ... has been recognized as a valid factor other than sex justifying a wage disparity." Glunt v. GES Exposition Services, Inc., 123 F.Supp.2d 847, 859 (D.Md.2000) (citations omitted). It is also true that differing experience and education can also constitute a valid "factor other than sex." See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 614 (4th Cir.1999). At trial, defendants presented evidence that McNamara had an undergraduate degree in mechanical engineering and a master's degree in structural engineering. Defendants also showed that McNamara, while employed at defendants' competitor, Anteon, participated in preparing two proposals for multi-million dollar contracts that defendants were also attempting to win. Also, it is undisputed that at the time defendants began discussing the possibility of entering into an employment relationship with McNamara, he was making $104,000 at Anteon and was asking defendants for a *623 salary of $110,000. Defendants offered him $105,000, which McNamara accepted, joining defendants' employ in June 2002. Defendants contend that plaintiff presented no evidence at trial rebutting the evidence that defendants paid McNamara more because of his background and previous salary, and that therefore they are entitled to judgment as a matter of law on plaintiff's pay claim under the EPA.
Under the EPA, however, defendants have both the burden of production and persuasion; thus defendants must persuade the jury, by a preponderance of the evidence, of the validity of their nongender-based explanation for a wage differential. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (noting that, after plaintiff shows that employer pays workers of one sex more than workers of the opposite sex for equal work, burden of proof shifts to employer to show that pay differential is justified under one of the EPA's four exceptions). And, in this respect, plaintiff offered evidence to rebut defendants' claim that the pay difference was due to a factor other than sex. Specifically, plaintiff presented evidence through the testimony of Nitsche, the department manager, that would allow a reasonable jury to infer that if the market required defendants to pay more to hire someone from outside the company, defendants would raise the salaries of those already working in the company to compensate. See Tr. Vol. 2 at 252. Yet, this did not occur. Moreover, Nitsche had testified at his deposition that marine engineering was "not a hot area in the business field" that required offering higher salaries to entice outsiders. Thus, the jury could reasonably have concluded that defendants asserted reason for paying McNamara more was not the true reason.
It is true that plaintiff did not rebut defendants' evidence on McNamara's educational background and experience. Yet, plaintiff did present evidence of her own educational background and experience. As discussed earlier, plaintiff has extensive experience as a chemist, materials engineer, and physical scientist, including almost nine years of experience at BBN itself. She also holds a master's degree in business administration, specializing in program management. Moreover, the trial record is replete with evidence that plaintiff is an exceptional and valued employee with a proven record of attracting new business to BBN and satisfying her customers. From this evidence, a reasonable jury could conclude that McNamara's education and experience was not more valuable than plaintiff's and thus could not serve to explain or justify the pay differential between them.
In summary, while defendants' asserted justifications for paying McNamara at a higher rate are not without record support, there is also evidence to the contrary and defendants' evidence does not "rise to such an overwhelming level that no reasonable jury could find that the pay differential was unjustified." Fowler v. Land Management Groupe, 978 F.2d 158, 161 (4th Cir.1992). As a result, defendants are not entitled to judgment as a matter of law or a new trial on the issue of liability under the EPA.
B. The Title VII Claims
Defendants challenge the jury's verdict on both plaintiff's Title VII pay disparity claim and her Title VII raise claim. With respect to plaintiff's Title VII pay claim, defendants first argue that plaintiff failed to exhaust her administrative remedies because plaintiff's charge of discrimination filed with the EEOC does not contain any allegations that she was paid a salary different from that paid to McNamara; indeed, they point out, McNamara did not *624 become an employee of defendants until two and a half months after plaintiff filed her EEOC charge.
It is true that before a plaintiff has standing to file suit under Title VII, she must first exhaust her administrative remedies by filing a charge with the EEOC. See Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124, 132 (4th Cir.2002). And, it is also true that "[t]he EEOC charge defines the scope of the plaintiff's right to institute a civil suit." Id. An administrative charge of discrimination, however, does not strictly limit the Title VII suit that follows; instead, "`the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination.'" Id. (citation omitted). Put another way, "claims and bases of discrimination set forth in a Title VII complaint `are cognizable as long as they are like or reasonably related to the allegations of the charge and grow out of such allegations.'" Nicol v. Imagematrix, Inc., 767 F.Supp. 744, 753 (E.D.Va. 1991) (citation omitted).
Plaintiff's EEOC charge alleges, inter alia, that plaintiff's supervisor, Miner, "treated [her] differently than [her] male coworkers" and that she "complained to Human Resources ... about not being treated equally to [her] male co-workers." In addition, plaintiff's charge alleges that she "did not receive the average raise of 4% like [her] similarly situated male co-workers, even though [she] brought in more business for the company then [sic][her] male co-workers." A reasonably thorough EEOC investigation of this general disparate treatment allegation would surely encompass whether she was paid less than similarly-situated male co-workers. See Bryant, 288 F.3d at 132 (scope of civil action confined by scope of EEOC investigation that can reasonably be expected to follow EEOC charge). That McNamara was hired after plaintiff filed her EEOC charge is not dispositive; there were other candidate comparators. Moreover, McNamara was hired a mere two and a half months after plaintiff filed her EEOC charge. Given the typical processing time, any EEOC investigation into the matter likely would not have commenced until after McNamara was hired. In addition, the allegations in plaintiff's charge suggest continuing disparate treatment because plaintiff continued to work as defendants' employee under the same management after filing her EEOC charge and it is likely that the EEOC would ultimately have included her claim concerning McNamara. Since plaintiff's disparate pay claim is a reasonably related outgrowth of her EEOC charge, and because her charge suggests continuing discrimination, the allegations in the charge sufficiently form a basis for plaintiff's claim at trial that she was paid less than McNamara. Cf. Patterson v. General Motors Corp., 631 F.2d 476, 483 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981) (EEOC charge that does not suggest continuing discrimination cannot form the basis for a complaint that alleges discrimination not occurring at the time covered by EEOC charge).
Next, defendants argue that, as with her EPA claim, plaintiff failed to establish a prima facie case for her Title VII pay claim because, as an employee who works a reduced schedule of thirty hours per week, plaintiff is not similarly situated to McNamara, who works forty hours per week.
A plaintiff may assert claims based on unequal pay for equal work under both the EPA and Title VII. See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir.1994). Under Title VII, a plaintiff can establish a prima facie case "by demonstrating that she is female, i.e., a member of a protected class, *625 and that the job she occupie[s][is] similar to higher paying jobs occupied by males." Id. at 343. The primary difference between EPA and Title VII claims is that under Title VII "`there is a relaxed standard of similarity between male and female-occupied jobs, but a plaintiff has the [ultimate] burden of proving intent to discriminate on the basis of sex.'" Id. (citation omitted). As previously discussed, plaintiff produced sufficient trial evidence from which a reasonable jury could conclude that she performed substantially equal work as McNamara under the EPA. Because the standard of similarity under Title VII is less stringent than the standard under the EPA, it necessarily follows that plaintiff also adduced sufficient trial evidence from which a reasonable jury could conclude that plaintiff and McNamara are similarly-situated employees under Title VII. As a result, plaintiff did not fail to establish a prima facie case with respect to her Title VII pay claim.
Defendants also contend, however, that plaintiff did not adequately rebut the legitimate, nondiscriminatory reasons advanced for the pay disparity between plaintiff and McNamara. While the EPA places the burden of production and persuasion on defendants to show that a wage differential is based on a factor other than sex, a different rule obtains under Title VII: "[T]he plaintiff's prima facie case serves to shift only the burden of production to the defendant." Brinkley-Obu, 36 F.3d at 344. Also, discriminatory intent is not an element of an EPA claim. Id. at 344 n. 17. Given these differences, "a plaintiff may succeed on an Equal Pay Act claim and fail to establish a Title VII claim." Id. Under Title VII, after the defendant produces a legitimate nondiscriminatory reason for the pay disparity, "the burden of persuasion remains on the plaintiff to demonstrate that the proffered explanation is pretextual and that the defendant was actually motivated by discriminatory intent." Id. at 344; accord Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This showing may be made directly by showing that a discriminatory reason more likely motivated the employer or indirectly "by showing that the employer's proffered reason is unworthy of credence." Brinkley-Obu, 36 F.3d at 344.
As discussed earlier, viewed in the light most favorable to plaintiff, Nitsche's trial and arguably conflicting deposition testimony could have led a reasonable jury to discredit defendants' proffered explanation for paying McNamara more than plaintiff. And, in this respect, it is settled that "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original); accord Reeves, 530 U.S. at 143, 120 S.Ct. 2097 ("[P]laintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence."'). Moreover, plaintiff presented evidence at trial that she, as the sole female in her group, was the only employee not provided with a laptop computer, although she had repeatedly requested one for several years. Additionally, she showed that she received the smallest number of billable hours from her supervisors and colleagues, although she generously provided her coworkers with billable hours on her projects. As a result, plaintiff presented sufficient evidence from which a reasonable jury could infer that defendants discriminated against her on the basis of sex by paying McNamara more than plaintiff.
Next, defendants attack the Title VII raise claim, arguing that they are entitled to judgment as a matter of law because a lower than expected pay raise is *626 not an adverse employment action. Under Title VII, it is "an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual" or to discriminate "with respect to his compensation, terms, conditions, or privileges of employment" because of an individual's sex. 42 U.S.C. § 2000e-2; Taylor v. Virginia Union University, 193 F.3d 219, 230 (4th Cir.1999). As part of her prima facie case at trial, plaintiff was required to prove that she was subjected to an adverse employment action. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.2003) (listing "adverse employment action" as an essential element in plaintiff's prima facie case under Title VII). Discharge, demotion, decrease in compensation, loss of job title or supervisory responsibility, and reduced opportunities for promotion are examples of typical adverse employment actions. Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir.1999).
While it appears that the denial of a pay increase may constitute an adverse employment action under Title VII,[12] plaintiff cannot claim she was denied a pay increase in 2002. Instead, she readily concedes, as she must, that she received a 1.36% pay increase. Moreover, the record also reflects that, in addition to her 1.36% pay raise, plaintiff received $8,967 in incentive pay for 2002.[13] As a result, defendants increased plaintiff's overall compensation for 2002 by $9,967. At its core, therefore, plaintiff's Title VII raise claim is that she is not satisfied with her 2002 pay raise. In other words, plaintiff concedes that in receiving the pay raise she received a benefit, but she thinks she should have received an even greater benefit.
Absent a very large disparity between the raise given a claimant and the raises given to valid comparators, which is not the case here, "it is difficult to see how a raise in one's salary could constitute an adverse employment action."[14]Milligan v. Citibank, No. 00-2793, 2001 WL 1135943, **4-5, 2001 U.S. Dist. LEXIS 16105, at *11-12 (S.D.N.Y. Sept. 26, 2001) (emphasis in original); see also McCann v. Fairfax County Gov't, 32 F.Supp.2d 365, 368 (E.D.Va.1998) ("A pay increase obviously is a benefit, not an adverse action.").
This is not to say, however, that receiving a lower raise can never constitute an adverse employment action. There may be situations where low pay raises are so consistent or their monetary significance in proportion to salary so substantial that they rise to the level of an adverse employment action. See, e.g., Saleh v. Upadhyay, 11 Fed. Appx. 241 (4th Cir.2001) (unpublished).[15] In this case, however, plaintiff's receipt of a 1.36% pay raise plus incentive pay amounts, at most, to a failure to receive an additional $3,410.[16] While this figure is by no means *627 inconsequential, it does not rise to the level of an adverse employment action. This follows from the sensible principle that "[e]very employment decision that arguably has a negative impact on an individual does not rise to the level of an adverse employment action." Stringfield v. Chistopher Newport Univ., 64 F.Supp.2d 593, 598 (E.D.Va.1999) (citations and quotations omitted). To conclude otherwise would allow employees disappointed over not receiving a higher raise to invoke Title VII to require courts to become involved in the messy business of evaluating employees and making finely-tuned raise determinations. There is no warrant for allowing Title VII to be used in this manner because the magnitude of the raise differential in this case cannot be said to have "adversely affected the terms, conditions, or benefits of the plaintiff's employment." Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir.2001) (emphasis added). To be sure, a lower than expected pay raise concerns a term, condition, or benefit of employment. But where, as here, plaintiff receives a non-trivial raise and incentive pay resulting in a significant increase in her compensation, her pay raise does not adversely affect the terms, conditions, or benefits of her employment. As a result, plaintiff failed to establish a prima facie case for her Title VII raise claim and defendants are thus entitled to judgment as a matter of law in this regard.[17]See Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir.1996) ("The movant is entitled to judgment as a matter of law `if the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof.'" (citation omitted)).[18]
*628 C. Damages
The jury awarded plaintiff $325,000 in compensatory damages on her Title VII claims. Defendants argue that the issue of compensatory damages should not have been submitted to the jury because plaintiff failed to present any evidence of her alleged compensatory damages at trial. Before reaching the merits of this argument, it is necessary to note that an award of damages for a violation of Title VII in these circumstances may not exceed $300,000.[19]See 42 U.S.C. § 1981a.[20] Therefore, as a preliminary matter, the jury's award of compensatory damages must be reduced to $300,000.
In response to defendants' argument that plaintiff did not present any evidence to support an award of compensatory damages, plaintiff points to the following evidence presented at trial: (1) a letter plaintiff wrote to Human Resources in which she states that she "is the only female in the group; however, that should not exclude [her] from being respected and recognized as an equal to the male members of the group;" (2) other documents in which plaintiff complains of being excluded from being an "active participant" in the group's programs, including a training session; (3) defendants' failure to provide her with a laptop computer; (4) testimony and other documentary evidence that her male co-workers and supervisor failed to provide her with billable work on their projects and thus forced plaintiff to spend non-billable time marketing for billable work; (5) testimony that Gauthier assigned hours to others on plaintiff's programs without informing her; (6) e-mails from plaintiff to the Materials subgroup in which she asked her male co-workers to stop charging to her programs without doing work on them; and finally (7) the underlying evidence that defendants' discriminated against plaintiff.
None of plaintiff's proffered evidence is sufficient to support an award of compensatory damages in this case. The instructions given to the jury on compensatory damages stated, in relevant part:
You may award compensatory damages only for injuries that plaintiff proves were caused by defendants' alleged wrongful conduct. The damages that you award must be fair compensation no more and no less. You may award damages for any pain, suffering or mental anguish that plaintiff experienced as a consequence of defendants' allegedly unlawful act.
A review of the record as a whole reveals that plaintiff failed to present any evidence at trial of her alleged compensatory damages. Counsel did not ask plaintiff a single question concerning how she felt *629 about being paid less than McNamara. Indeed, plaintiff did not articulate any mental anguish she suffered or any instances of emotional injury. This utter lack of evidence simply cannot support the award of compensatory damages in this case. See Price v. City of Charlotte, 93 F.3d 1241, 1255 (4th Cir.1996) (holding plaintiffs' vague and conclusory evidence insufficient to support an award of compensatory damages).[21] As a result, the issue of compensatory damages should not have been submitted to the jury and defendants are entitled to judgment as a matter of law on this issue. Therefore, the jury's award of $300,000 in compensatory damages must be vacated.[22]
Defendants also challenge the jury's award of $75,000 in back pay under Title VII and $100,000 under the EPA as excessive. Before the start of their deliberations, the jury was instructed on awarding and calculating back pay damages under Title VII as follows:
If you determine that defendants discriminated against plaintiff on the basis of her sex then you must determine the amount of damages that their actions have caused plaintiff. You may award as actual damages an amount that reasonably compensates plaintiff for any lost wages taking into consideration any increases in salary that plaintiff would have received had she not been discriminated against.
The jury was also instructed regarding the proper measure of damages under the EPA:
You should find as damages to be awarded in favor of plaintiff the amount of money that will compensate her for the difference between what she has been paid by defendant and what a male employee was paid for performing a job requiring substantially equal skill, effort, and responsibility that was performed under similar working conditions.
Plaintiff's comparator was Charles McNamara. In calculating a back pay award in these circumstances, "the female employee should be awarded the difference between what she was paid and what the comparable male employee was paid." EEOC v. Liggett & Myers Inc., 690 F.2d 1072, 1076 (4th Cir.1982).[23]
Testimony at trial revealed that the one year salary differential between *630 plaintiff ($103,333 annualized) and McNamara ($107,500) was $4,167. Once plaintiff's reduced schedule is taken into account, however, calculation of her salary at McNamara's rate of pay reveals that her 2003 salary would be $80,625; or $3,125 more than her current 2003 salary of $77,500. The jury's actual award of $175,000 in economic damages bears no rational or reasonable relationship to the damages proved at trial.[24] As a result, this damage award must be reduced, to $3,125, plus interest.[25] Defendant's motion for a new trial pursuant to Rule 59(a) on the issue of back pay damages therefore must be granted nisi remittitur. Thus, in the event plaintiff does not accept this remittitur in the back pay damage award, defendants are entitled to a new trial on this issue. See Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305 (4th Cir.1998) ("Remittitur, which is used in connection with Fed.R.Civ.P. 59(a), is a process, dating back to 1822, by which the trial court orders a new trial unless the plaintiff accepts a reduction in an excessive jury award.") (internal quotation marks omitted).
III.
To sum up, defendants' motion for judgment as a matter of law pursuant to Rule 50(b), Fed.R.Civ.P., or in the alternative for a new trial pursuant to Rule 59(a), Fed.R.Civ.P., must be denied with respect to plaintiff's EPA claim and Title VII pay claim. Defendants motion for judgment as a matter of law, however, must be granted with respect to plaintiff's Title VII raise claim and the jury's award of compensatory damages under Title VII. Finally, the jury's award of economic damages for back pay under Title VII and the EPA was excessive. As such, defendants' motion for a new trial pursuant to Rule 59(a), Fed. R.Civ.P., must be granted, nisi remittitur. Should plaintiff accept remittitur, the jury's back pay award must be reduced to $3,125, plus interest.
An appropriate order will issue.
NOTES
[1] Title VII of the Civil Rights Act of 1964 is codified, as amended, at 42 U.S.C. § 2000e et seq.
[2] The Equal Pay Act of 1963 is codified at 29 U.S.C. § 206(d).
[3] As required by settled authority, the facts recited here are derived from the record and are taken in the light most favorable to the non-movant, plaintiff in this case. See Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 259 (4th Cir.2001).
[4] BBNT Solutions, LLC is a legal entity that does business as BBN Technologies ("BBN").
[5] See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 613 (4th Cir.1999) (noting that to establish prima facie case under EPA, plaintiff must show that her comparator holds a job that requires equal skill, effort and responsibility, and is performed under similar working conditions); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir.1994) (plaintiff must show "that the job she occupied was similar to higher paying jobs occupied by males" in order to establish prima facie case of pay discrimination under Title VII).
[6] Before submission of the case to the jury, defendants' motion for judgment as a matter of law pursuant to Rule 50(b), Fed.R.Civ.P., was granted with respect to punitive damages under Title VII because the record did not reflect that defendants "engaged in intentional discrimination `with malice or with reckless indifference to [the plaintiff's] federally protected rights.'" Ocheltree v. Scollon Prod., Inc., 335 F.3d 325, 335 (4th Cir.2003) (quoting 42 U.S.C. § 1981a(b)(1)); see also Bryant v. Aiken Regional Medical Ctrs. Inc., 333 F.3d 536, 548-49 (4th Cir.2003).
[7] This differs from the McDonnell Douglas Title VII framework. In a Title VII case, once the plaintiff has established her prima facie case, the employer need only articulate a legitimate, nondiscriminatory reason for the action. Once the defendant meets this burden of production, the plaintiff must present evidence sufficient to support an inference of pretext in order to survive a defendant's motion for judgment as a matter of law. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
[8] As noted earlier, plaintiff's initial attempt to compare herself to Pete Gauthier failed for, at the close of all the evidence, defendants' renewed motion for judgment as a matter of law was granted on this issue and plaintiff was limited to McNamara as an appropriate comparator. See supra note 5 and accompanying text.
[9] The panel noted that the proposed male comparator "was required to advise students in their major, participate in curriculum development, oversee the curriculum, participate in departmental, university, and community activities, and attend departmental meetings," while the plaintiff was not. Dibble, 1996 WL 350019 at *3.
[10] It is also clear that "hours of work" does not refer to the time of day in which a job is performed, as another example listed is "differences based on time of day worked."
[11] A difference in the skills of individual employees can, however, justify unequal wages under the catchall statutory exception for wage differentials based on "any factor other than sex." See, e.g., Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 n. 18 (11th Cir.1992) (noting that a wage differential based on experience and education operates as a defense to liability, rather than as part of plaintiff's prima facie case).
[12] See Flateau v. South Carolina Comm'n for the Blind, 50 Fed. Appx. 653, 654 (4th Cir. 2002) (unpublished) ("To establish her [Title VII] claim, [plaintiff] was required to demonstrate that she was denied a pay increase because of her gender.").
[13] The record reflects that McNamara received no incentive pay for 2002, and that others, such as John Lechmanik, Steve Lutgen, and Matthew McMurtry, received $8,882, $10,321, and $6,588, respectively, in incentive pay for 2002. Plaintiff does not argue that she was in any way discriminated against with respect to, or dissatisfied with, her 2002 incentive pay.
[14] For example, if an employer were to grant an employee a minimal raise of say only $100, while granting her valid comparators raises in excess of $10,000, such action may cross the adverse employment action threshold.
[15] For a detailed discussion of the facts in Saleh, see supra note 17.
[16] This figure assumes plaintiff would have received a 6% raise. Testimony at trial revealed that the average raise for an employee with a overall rating of "High Standard" was between four to six percent.
[17] Plaintiff's reliance on the Fourth Circuit's unpublished decision in Saleh v. Upadhyay, 11 Fed. Appx. 241 (4th Cir.2001), for the proposition that a lower pay raise is an adverse employment action under Title VII is unavailing. Putting to one side that unpublished decisions lack precedential value, see In re Members Warehouse, Inc., 991 F.2d 116, 119 n. 2 (4th Cir.1993) (noting that "an unpublished decision has no precedential value"), it is worth noting several material distinctions between Saleh and this case. Plaintiffs in Saleh received the lowest raises in their respective departments for three years in a row and, as a result, one plaintiff suffered lost earnings calculated at between $56,767.00 and $113,075.00. Saleh, 11 Fed. Appx. at 257. It was in this context that the panel found that "the reduction of Saleh's raises for three years in a row constitutes an adverse employment action that may be expected to chill an employee's First Amendment rights." Id. Indeed, it is significant that this issue arose in the context of a First Amendment retaliation claim where, as the panel specifically noted, "something less onerous than an `adverse employment action' in the context of Title VII jurisprudence may so chill the exercise of constitutional rights as to constitute a showing of adversity in a First Amendment retaliation case under § 1983." Id. at 255. While it is true that the panel also apparently considered the other plaintiff's (Mbagwu) low pay raises an adverse employment action, without discussion, in the context of his § 1983 national origin discrimination claim, the fact remains that Mbagwu also received consistently low raises for three years in a row, which produced alleged losses that are an order of magnitude beyond the alleged loss in this case. See id. at 258-59. Saleh, therefore, differs significantly from this case in several respects.
[18] Pursuant to Rule 50(c)(1), Fed.R.Civ.P., defendants' motion for a new trial on plaintiff's Title VII raise claim must be conditionally denied. If, on appeal, the Fourth Circuit determines that a 1.36% pay raise constitutes an adverse employment action in this context, it is clear that plaintiff established a prima facie case for her Title VII raise claim. There is evidence in the record that the average raise for employees with a "High Standard" rating was between four to six percent. Moreover, the jury could have reasonably concluded that defendants' proffered reason for the 1.36% pay raise namely plaintiff's improper purchase requisition was pretextual, as plaintiff testified that she had always followed the same procedure for purchase requisitions and had never been reprimanded before. In addition, a jury could reasonably find defendants' justification unworthy of credence since Nitsche initially offered a different reason for the 1.36% raise at his deposition, namely that plaintiff's raise was not increased after her overall performance evaluation was changed to "High Standard" because the compensation system was closed.
[19] Indeed, plaintiff concedes this point in her opposition brief.
[20] Section 1981a of Title 42 states in relevant part:
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party ... (D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current of preceding year, $300,000.
42 U.S.C. § 1981a (emphasis added).
[21] In Price, the plaintiffs presented testimony at trial that, inter alia, the individual plaintiffs felt "betrayed," "disappointed and embarrassed," "devastated," "used as a pawn," "slapped in the face," and that they experienced stress. 93 F.3d at 1255. The jury awarded each plaintiff $3,000 in compensatory damages. Id. While recognizing that a plaintiff's testimony alone could support an award of compensatory damages, the court found that such testimony must "establish that the plaintiff suffered demonstrable emotional distress, which must be sufficiently articulated" and that the testimony cannot rely on "conclusory statements that the plaintiff suffered emotional distress" or the mere fact that the plaintiff was wronged. Id. at 1254; see also Bryant v. Aiken Regional Medical Centers, Inc., 333 F.3d 536, 546-47 (4th Cir. 2003). Instead, the testimony must indicate with specificity "how [the plaintiff's] alleged distress manifested itself." Price, 93 F.3d at 1254. In stark contrast to the Price plaintiffs, plaintiff here failed to present any evidence of emotional distress.
[22] Pursuant to Rule 50(c)(1), Fed.R.Civ.P., defendants' motion for a new trial on the issue of compensatory damages must be conditionally granted. As plaintiff did not put forth any evidence to support an award of compensatory damages, it necessarily follows that the jury's $300,000 award was manifestly against the clear weight of the evidence.
[23] The cases plaintiff relies on to argue otherwise are inapposite because this is not a case where "the resulting injury is not capable of precise measurement." Hairston v. McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975) (class action case where court noted that "[c]lass actions for back pay under Title VII are inherently complex; the computation of individual awards necessarily involves speculation: what the plaintiff's would have received but for discrimination"). Nor is this a case where plaintiff made her prima facie case "by comparing her salary to that of her predecessor or successor." Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir.1994). Plaintiff's comparator was her co-worker, Charles McNamara, and the wage differential between them is readily quantifiable.
[24] While the jury also found for plaintiff on her Title VII raise claim, because defendants are entitled to judgment as a matter of law on this claim, plaintiff is no longer entitled to damages on this claim. In any event, had plaintiff received a 6% raise rather than a 1.36% raise, she would have received $4,410, rather than $1,000, and would thus be entitled to $3,410 in damages for her raise claim. This certainly does not alter the conclusion that the jury's economic damage award was excessive.
[25] Plaintiff is not entitled to recover damages under both the EPA and Title VII for her pay claim because defendants' liability under both statutes in this case is premised on the same wrong. See 29 C.F.R. § 1620.27(b) ("Recovery for the same period of time may be had under both the EPA and Title VII so long as the same individual does not receive duplicative relief for the same wrong." (emphasis added)).
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942 P.2d 725 (1997)
UNITED DESIGN CORPORATION, Gary N. Clinton, Jean Macy Clinton, and Robert M. Clinton, Appellants,
v.
STATE of Oklahoma ex rel. OKLAHOMA TAX COMMISSION, Appellee.
No. 83438.
Supreme Court of Oklahoma.
March 18, 1997.
As Corrected June 19, 1997.
Order Denying Rehearing July 15, 1997.
Cathy C. Barnum, Noble, Philip D. Hart, James Dudley Hyde, McAfee & Taft, Oklahoma City, for Appellants.
David Hudson, General Counsel, Dorothy Lindsey Brown, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma City, for Appellee.
*726 HODGES, Justice.
The issues in this appeal primarily concern what constitutes the process of manufacturing for purposes of the manufacturer's exemption from sales and use tax found at section 1359 of title 68 of the Oklahoma Statutes. Because this matter was decided under an incorrect view of the manufacturing process involved, it is remanded to the Oklahoma Tax Commission for further proceedings. In addition, the Oklahoma Tax Commission is instructed to implement today's holdings concerning the other tax assessment issues discussed herein.
United Design Corporation (United) is an Oklahoma corporation, headquartered in Noble, Oklahoma. United's business consists of the design, manufacture, and sale of gift figurines. United then markets its products primarily through retail outlets which purchase the products for resale or for exclusive use. Over 98 percent of United's sales are to purchasers out of state.
In June, 1990, the Business Tax Division of the Oklahoma Tax Commission (Commission) began an audit of United's books. Based on the audit, the Commission assessed use and sales tax against United for the audit period June 1, 1987, through May 31, 1990. United protested the tax assessment alleging that the Commission's Business Tax Division had erroneously proposed much of the assessment due to improper interpretation of existing manufacturing and business exemption provisions.
An administrative law judge held an evidentiary hearing on United's protest. On June 12, 1992, she issued her findings and conclusions and recommended that United's protest be denied in part and granted in part. The Commission adopted the administrative law judge's findings, conclusions, and recommendations in their entirety on March 24, 1994. United appealed that decision. The Court of Civil Appeals affirmed the Commission in part, reversed in part, and remanded the case for further proceedings. This Court granted certiorari review based on the petitions of both United and the Commission.
I. THE MANUFACTURERS' EXEMPTION FROM SALES AND USE TAX
United employs sculptors who fashion prototypes out of clay, from which a master mold is made. Production molds are made from the master mold, and figurines are then made by pouring material into the molds. After the figurines are cast, the manufacturing process involves a number of steps to refine the castings, followed by painting or glazing and affixing eyes. They are then packaged and readied for shipment.
The Commission assessed a deficiency, asserting that United had improperly interpreted the manufacturers' exemption provisions for sales and use tax. In the view of the Commission, the manufacturing process began with the creation of the production molds, and ended with the gluing of eyes onto the figurines. The Commission thus excluded all of the steps beginning with design and development, the creation of the prototype sculpture, and the making of the master mold. The Commission also excluded from the manufacturing process anything to do with packaging, warehousing, and shipping. The Commission was unmoved by United's argument that the manufacturing process began with the sculptor's development of the prototype figurine. Equally unsuccessful was United's claim, supported by uncontroverted evidence, that the post-production packaging operations were critical *727 steps in the manufacturing process which were entitled to exception under the statute.
The Court of Civil Appeals decided that the Commission should not have fixed the beginning of the manufacturing process with the creation of the production molds, but rather should have determined that the process began with creation of the master molds. It also determined, however, that the Commission was correct in excluding packaging and shipping from the manufacturing process.
United notes that the Commission did not have the opportunity to consider the impact of Schulte Oil Co. v. Oklahoma Tax Commission, 882 P.2d 65 (Okla.1994), on its assessment of United's manufacturing operation. Schulte was promulgated while this matter was on appeal.
One issue in Schulte was the Commission's application of the manufacturers' exemption from sales tax found at section 1359 of title 68 and Commission Rule 13.013.23 which construes that statute. Section 1359(1) exempts "[g]oods, wares, merchandise, and property purchased for the purpose of being used or consumed in the process of manufacturing." Section 1359(3) exempts machinery and equipment "directly used in" the manufacturing process. In 1992, the statute was amended to exempt packaging materials sold to a manufacturer, id. at § 1359(K) (Supp.1992), but the provision was not in effect at the time of the challenged assessment.
United's appeal, like that in Schulte, challenges the view taken by the Commission as to what operations constitute the process of manufacturing. The Schulte opinion reasoned that "[t]he § 1359 sales tax exemption should receive a practical construction one that would not allow a manufacturing operation that is in fact but one continuous and integrated production process to be chopped up into discrete segments." 882 P.2d at 74. The exemption applies to all items "necessary to the production of a finished product." Id. Schulte determined that diesel fuel for forklifts used to move pipe was part of the pipe remanufacturing process. Thus, it was exempt from the motor fuel sales tax. Id. at 75. Schulte was applied to all cases pending in the administrative or appellate litigation pipeline. Id.
In this matter, the Commission excluded certain operations from its view of United's manufacturing process. These included the development of the sculptures and master molds from those sculptures, as well as all packaging and warehousing of the figurines. The Commission excluded these operations despite United's uncontroverted evidence at hearing that they were critical steps in its manufacturing process.
The Commission's truncated view of the manufacturing process, expanded slightly by the Court of Civil Appeals, is contrary to the letter and spirit of this Court's decision in Schulte. United's manufacturing operation is one integrated production process. That process includes any necessary adjunct to production. It also includes putting the product into marketable form.[1] This matter must be remanded so that the Commission may view United's manufacturing process in a manner consistent with Schulte.
II. UNITED'S CLAIM TO MANUFACTURERS' EXEMPTION FOR PRODUCTION OF ITS CATALOGS
United uses catalogs in marketing its products. In producing its catalogs, United's in house catalog production staff sets up products for photography, writes copy, crops photos, and lays out the pages. United uses outside contractors for photography, photo color separation, typesetting, and printing. All outside work is closely supervised by United's staff.
The Commission and the Court of Civil Appeals found that United did not manufacture its catalogs. They reasoned that United's participation in the catalog production process was merely supervisory and refused to apply the manufacturers' exemption to purchases United made in producing catalogs. *728 The same holding was applied to posters, books, gift bags, and other graphic arts products United produced.
Schulte's call for a "practical construction" of the manufacturers' exemption applies to United's production of its catalogs and other graphic arts products. See 882 P.2d at 74. A practical construction requires that manufacturing include not only the production of a "core" product or products, but also related products. As Schulte noted, "[t]he ultimate purpose of the manufacturer's exemption is to enhance this state's competitive position in inducing industries to locate and expand in Oklahoma." Limiting "manufacturing" to the production of a core product does not further that goal. Nothing in the manufacturers' exemption granted by the Oklahoma Legislature requires or implies such a restrictive definition of manufacturing. United's manufacturing operations include catalog and graphic art production.
Nor was United's status as a manufacturer defeated by the fact that certain specialized tasks were performed by outside contractors. The Commission's Rule 13.013.23 specifically provides that "[o]perations performed by a sub-contractor to the manufacture may qualify as a manufacturing operation if the contractor is performing sub-assembly work leading to completion of the finished product." The rule describes precisely United's production of its catalogs and graphic arts products. United was entitled to the manufactures' exemption on those items.
III. UNITED'S CLAIM FOR SALES OF DISPLAY ITEMS
The Commission's audit included a number of items which United sold to customers to display United's products. The administrative law judge determined that United's purchase of display items it then sold its customers were tax exempt purchases under section 1357(c) of title 68 (now section 1357(3)), the sale-for-resale exemption. The administrative law judge went on to conclude, however, that United was under a duty to charge, collect, and report sales tax on its sale of the display items to its customers.
On appeal, United asserted it was not under a duty to collect tax on the sale of the display items to its customers in other states. It argued that section 1359(f) of title 68 (now section 1359(6)) exempts manufacturers' "[s]ale of personal property manufactured in Oklahoma when sold to a person who transports it to another state for immediate and exclusive use in some other state." The Court of Civil Appeals held that United had failed to carry its burden of showing entitlement to the exemption.[2] Specifically, that court noted that the first requirement of the exemption had not been met, namely, that the items sold be manufactured in Oklahoma.
The invoices at issue were from out-of-state suppliers. Thus, the conclusion reached by the Commission and the Court of Civil Appeals was correct. United's sale of the display items did not qualify for the exemption.
IV. UNITED'S CLAIM FOR REFUND FOR COMPUTER PROGRAMMING SERVICES
United sought a refund from the Commission of taxes it believes it mistakenly paid for what it terms "custom programming." Resolution of this issue rests on how the programming services are categorized.
Section 1354(H) of title 68 levies sales tax on "computer hardware, software, coding sheets, cards, magnetic tapes or other media on which prewritten programs have been *729 coded, or otherwise recorded, including the gross receipts from the licensing of software programs." The Commission Regulation 13-16[3] creates three categorizes of computer software: 1) prewritten or "canned" programs which are simply loaded onto a customer's equipment, 2) "programming changes to a prewritten program to adapt it to a customer's equipment," and 3) custom programs "prepared to the special order of a customer."
Canned programs and programming changes are taxed under the regulation while custom programs are not. The administrative law judge found that the taxes for which United sought a refund were collected on changes made to modify and adapt prewritten programs to United's needs, thus making those changes taxable.
Evidence was presented at hearing to support the judge's finding. By United's own admission, the charges were for "customization and/or modification programming services." United, however, took the view that those services were not subject to sales or use tax. United's view is contrary to the text of Regulation 13-16 which taxes "programming changes to a prewritten program." The administrative law judge's finding concerning this issue will not be disturbed.
*730 V. UNITED'S CLAIM OF ERROR IN ASSESSMENT OF USE TAX WITHOUT DEDUCTION FOR DISCOUNTS
This dispute centers on whether a use tax assessment on sales from out-of-state vendors is to be based on the amount United actually paid or to be based on the contract price. Evidence presented to the administrative law judge demonstrated that United routinely pays a discounted amount on purchases if it pays "early." United urged that it was error for the Commission not to base the amount of use tax on the discounted amount it actually paid.
Section 1402 of title 68 assesses a use tax on out-of-state purchases at a percentage of the "purchase price" of the property. The term "purchase price" is defined at section 1401 as "the consideration paid or given or contracted to be paid or given by any person to the seller of an article of tangible personal property for the article purchased." (emphasis added) In contrast, sales tax is assessed under section 1354(1) of title 68 on in-state purchases at a percentage "of the gross receipts or gross proceeds of each sale." Section 1352(g)(3) defines "gross receipts" or "gross proceeds" to include "[a]ny amount for which credit or a discount is allowed by the vendor."
United argues that the clear text of the use tax provision found at section 1401 defines "purchase price" in the disjunctive as either the amount actually paid or the contract price. The Commission argues that the provision must be construed to complement the sales tax provisions. It is concerned that "[i]f early payment discounts were included in gross receipts for purposes of sales tax, but not included [in "purchase price"] for purposes of use tax, purchasers of out-of-state inventory would gain a competitive advantage over purchasers of in-state inventory."
While the Commission expresses a legitimate concern, that concern should be addressed to the legislative branch of our state's government. This Court's function in applying a statute is to ascertain legislative intent and construe the statute only if intent is not clear from its text. See Cooper v. State ex rel. Dept. of Public Safety, 917 P.2d 466 (Okla.1996). Here the text of the statute clearly defines "purchase price" as either the contract price or the actual amount paid. This Court must decline the Commissions invitation to rewrite the use tax provision so that it mirrors the sales tax provisions. The Court of Civil Appeals reached the correct conclusion on this issue. The Commission is directed to adjust its assessment of use tax to eliminate use taxes imposed on discounts taken by United.
Summary and Instructions
The holdings of the Commission concerning United's tax assessment were made without the benefit of this Court's pronouncement in Schulte. Thus, its view of what constituted United's manufacturing process was not in accord with the holdings of that decision. This matter is remanded to the Commission for application of the manufacturers' exemption to United's manufacturing process as described herein. That holding of today's pronouncement must also be applied to United's manufacture of its catalogs and graphic arts products. In addition, the Commission must recalculate the use tax on any out-of-state purchases for which it failed to base such tax on the actual amount paid. Further, the Commission was correct in concluding that United was under a duty to collect tax on the sale of display items to its customers in other states. Finally, United's request for a refund from the Commission of taxes paid on programming changes made to modify and adapt prewritten programs to its equipment was properly denied.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; ORDER OF OKLAHOMA TAX COMMISSION AFFIRMED IN PART, REVERSED IN PART; CAUSE REMANDED TO TAX COMMISSION WITH INSTRUCTIONS.
KAUGER, C.J., and LAVENDER and WATT, JJ., concur.
SUMMERS, V.C.J., concurs in parts I, III, V and IV; dissents from part II.
*731 OPALA, J., concurs in parts I, II, III and V; dissents from IV.
WILSON and SIMMS, JJ., concur in part; dissent in part.
HARGRAVE, J., not participating.
ORDER
Appellee's petition for rehearing denied.
PART I VOTE: KAUGER, C.J., SUMMERS, V.C.J., and HODGES, LAVENDER, SIMMS, OPALA, WILSON and WATT, JJ., concur.
HARGRAVE, J., not participating.
PART II VOTE: KAUGER, C.J., and HODGES, LAVENDER, OPALA and WATT, JJ., concur.
SUMMERS, V.C.J., and SIMMS and WILSON, JJ., dissent.
HARGRAVE, J., not participating.
PART III VOTE: KAUGER, C.J., SUMMERS, V.C.J., and HODGES, LAVENDER, SIMMS, OPALA, WILSON and WATT, JJ., concur.
HARGRAVE, J., not participating.
PART IV VOTE: KAUGER, C.J., SUMMERS, V.C.J., and HODGES, LAVENDER and WATT, JJ., concur.
SIMMS, OPALA and WILSON, JJ., dissent.
HARGRAVE, J., not participating.
PART V VOTE: KAUGER, C.J., SUMMERS, V.C.J., and HODGES, LAVENDER, OPALA and WATT, JJ., concur.
SIMMS and WILSON, JJ., dissent.
HARGRAVE, J., not participating.
SIMMS, Justice, dissenting:
¶ 1 I dissent to Part II of the majority opinion.
¶ 2 United's catalog production is an integral part of its marketing effort. However, neither 68 O.S. § 1359, nor this Court's opinion in Schulte Oil Co. v. Oklahoma Tax Comm'n, 882 P.2d 65 (Okl.1994), permit an expansion of the manufacturer's tax exemption to encompass United's particular marketing activity in the instant case. One of the stated requirements of 68 O.S. § 1359 is that the manufactured goods are items for sale or resale. See 68 O.S. § 1359(A). There is little evidence in the record regarding the sale of the catalogs, with the only references in this regard being that the catalogs were given away, or occasionally sold at a nominal cost. While there may be evidence that United does manufacture its catalogs, the additional requirement that the product be prepared for sale or resale is completely lacking with reference to the catalog production. Because the catalog production is unable to stand as a manufactured product in its own right, the catalog production must fit within the manufacturing parameters of the gift figurine line for United to avail itself of the tax exemptions of § 1359.
¶ 3 The marketing and post-production nature of the catalog itself does not fit within the parameters of the manufacturing definition provided under the Sales Tax Code, 69 O.S. § 1352(H).
"Manufacturing" means and includes every operation commencing with the first production stage of any article of tangible personal property and ending with the completion of tangible personal property having the physical properties which it has when transferred by the manufacturer to another.
¶ 4 All the physical properties which the figurines have when transferred from United to its customers exist without regard to the catalog production and as such the catalog production falls outside United's figurine manufacturing activities and outside the exemptions of § 1359. The physical properties of the figurines are complete regardless whether a catalog accompanies the shipment.
¶ 5 To the degree that United's Oklahoma based graphic art production is used to create related gift products for sale, such as books, posters and other gift items, United can be considered a manufacturer of this related line of products and this production *732 would stand as a manufactured product in its own right. It is the separate marketing nature of the catalogs and the fact that they are not created for sale or resale that prevents United from shrouding its manufacturer's status over every enterprise in which it endeavors.
¶ 6 United was not entitled to the manufacturer's exemption for those items relating to its catalog production. However, United was entitled to the manufacturer's exemption for graphic art production of the related gift products that were manufactured for sale or resale, pursuant to the dictates of 68 O.S. § 1359(A).
¶ 7 I dissent to Part IV and to the Summary and Instructions of the majority opinion, as well.
¶ 8 I am authorized to state that Vice Chief Justice Summers joins me in the views expressed in the dissent to Part II of the majority opinion.
NOTES
[1] This holding eliminates any need to address United's request that the 1992 amendment to section 1359 of title 68, which added an exemption for sales of packaging materials to a manufacturer, see Okla.Stat. tit. 68, § 1359(11) (Supp. 1996), be applied retroactively to the assessment period.
[2] That court failed to note, however, that the statute had been declared unconstitutional by this Court a year and one half earlier in Koch Fuels v. State ex rel. Oklahoma Tax Commission, 862 P.2d 471 (Okla.1993).
In Koch, the provision (cited as section 1359(e) in Koch) was held to violate the Commerce Clause of the United States Constitution by discriminating between in-state and out-of-state manufacturers. Id. at 480. Thus, as Koch observed, that provision conferred no right to an exemption to any manufacturer after the pronouncement of its unconstitutionality. Id. at 481. Today's holding on this issue obviates any need to examine what effect the provision might have had on this assessment period which predated the pronouncement of unconstitutionality.
[3] Regulation 13-16 COMPUTERS AND RELATED SYSTEMS
A. Computer "hardware" is defined as the machine with all of its components. The sale to a consumer of a computer and its related components is taxable when delivered to a customer in this state. The rental of a computer and its related components, including terminal equipment (hardware) which is physically located in this state is taxable.
B. Computer "software" is defined as the programming needed to make computers operate.
Prewritten (canned) programs are programs prepared, held, or existing for general or repeated, use, including programs developed for in-house use and subsequently held or offered for sale or lease. The programs may be transferred to the customer in the form of punched cards, data or magnetic tape, or by listing the program instructions on coding sheets. In some cases they are usable as written, however, in most cases it is necessary that the program [be] modified, adapted, and tested to meet the customer's particular needs. Sales tax applies to the sale of tangible personal property, including coding sheets, cards or magnetic tape, on which or into [sic] which such prewritten (canned) programs have been coded, punched or otherwise recorded.
Sales tax applies whether title to the tape or other property upon which the program is coded, punched or otherwise recorded passes to the customer, or the program is recorded on tape or other property furnished by the customer. The temporary transfer of possession of a program for a consideration for the purpose of direct use or to be recorded by the customer, is a lease of tangible personal property and the tax applies unless the property is leased in substantially the same form as acquired by the lessor and the lessor has paid sales tax or use tax with respect to the property.
Sales tax applies to the entire amount charged to the customer. Where the consideration consists of license fees or royalty payments, all license fees or royalty payments, present or future, whether for a period of minimum use or for extended periods, are includable in the measure of tax.
Programming changes to a prewritten program to adapt it to a customer's equipment, including translating a program to a language compatible with a customer's equipment, are in the nature of fabrication or services and are part of a sale and thus are taxable.
Charges for assembler, compiler, utility, and other prewritten programs provided to those who lease or purchase automatic data processing equipment are subject to tax whether the charges are billed separately or are included in the lease or purchase price of the equipment. The transfer of a program developed through modification of an existing prewritten program to meet a customer's specified need is in the nature of customized programming as discussed below, if the charge for the program, as modified, is substantially greater than the charge for the existing prewritten program and if the charges for the service of modifying the program is stated separately from the charge for the rewritten program.
Custom programs are programs prepared to the special order of a customer. This type of program is classified as intangible personal property and is not subject to tax.
EXAMPLE 1: The sale of computer video game programs used to operate computers, video games, is the sale of tangible personal property and is subject to tax.
EXAMPLE 2: Computer software programs used to operate business computers, personal computers, word processors, display writers, and other similar hardware are considered the sale of tangible personal property and subject to tax.
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977 F.2d 581
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.Charles Bradley Jones BEY, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 92-5692.
United States Court of Appeals, Sixth Circuit.
Oct. 20, 1992.
Before SILER and BATCHELDER, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.
ORDER
1
Petitioner, Charles Bradley Jones Bey, appeals the district court's judgment denying his motion filed pursuant to 28 U.S.C. § 2255. Additionally, he requests the appointment of counsel. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
On December 30, 1989, petitioner was convicted by a jury of two armed bank robberies in Memphis, Tennessee. He was sentenced to a term of imprisonment of 151 months, plus 3 years supervised release. His conviction was affirmed on appeal. See United States v. Jones, No. 89-5639, unpublished op. (6th Cir. Feb. 28, 1990).
3
In his motion filed pursuant to 28 U.S.C. § 2255, petitioner claimed his counsel's assistance was ineffective in three respects: 1) his counsel failed to call as witnesses, at a pretrial suppression hearing, petitioner's aunt and uncle to say that they did not consent to FBI agents entering their residence where petitioner was visiting; 2) his counsel failed to obtain a written report from an independent fingerprint expert concerning the expert's findings in agreement with the government expert; and 3) his counsel failed to appeal the judgment of conviction along with the ruling of the trial court on the issue of warrantless arrest and seizure of property. The district court denied the motion on April 1, 1992.
4
Upon review, we conclude that the 28 U.S.C. § 2255 motion to vacate sentence was properly denied as petitioner has failed to show a fundamental defect in the proceedings that inherently resulted in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process. See United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (per curiam). Petitioner has failed to show that his counsel's performance was deficient or that the deficient performance prejudiced the defense so as to render the trial unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lewandowski v. Makel, 949 F.2d 884, 888 (6th Cir.1991).
5
Accordingly, the request for counsel is denied and the district court's judgment is affirmed pursuant to Rule 9(b)(3), Rules of the Sixth Circuit.
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 9, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
PAUL ARTHUR LOPEZ,
Petitioner–Appellant, No. 09-2198
v. (Case No. 1:09-CV-00218-JB-RLP)
GEORGE TAPIA, Warden; GARY K. (D.N.M.)
KING, Attorney General for the State
of New Mexico,
Respondents–Appellees.
ORDER *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Petitioner, a pro se state prisoner, seeks a certificate of appealability to
appeal the district court’s denial of his § 2254 habeas petition. He claims his
constitutional rights were violated during the pre-trial proceedings when “the
State, being bound by mandatory legislation, failed to conduct a preliminary
hearing within ten (10) days of his initial appearance.” (Application for
Certificate of Appealability at 6.) He further argues his constitutional rights were
violated when he was only permitted twenty minutes to review the juror
questionnaires prior to voir dire. He also argues, for the first time on appeal, that
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
certain of the jurors who tried his case were actually or potentially biased against
him.
The state court concluded on appeal that Petitioner’s due process rights
were not violated when, following an order of enlargement of time, he was
indicted eleven days after his initial appearance. 1 The court concluded that New
Mexico’s Rules of Criminal Procedure did not require the filing of an indictment
within the ten-day period applicable for a preliminary examination and, moreover,
that the trial court was permitted to enlarge this time period. Furthermore, the
court concluded any error in the initiation of the proceedings did not warrant
dismissal of the indictment because Petitioner had shown no prejudice resulting
from the allegedly improper one-day delay. See State v. Tollardo, 654 P.2d 568,
570 (N.M. 1982) (“Dismissal is not the proper remedy for a delay in holding a
preliminary examination when prejudice to the defendant has not been shown.”)
“The right to a preliminary hearing in the State of New Mexico is one
guaranteed by the state constitution and only becomes a Federal Constitutional
guarantee by the equal protection clause of the Fourteenth Amendment because it
is a part of the due process of the state.” Silva v. Cox, 351 F.2d 61, 64 (10th Cir.
1965). Therefore, we must accept the state court’s interpretation of its laws
1
Pursuant to New Mexico law, the metropolitan court conducted a probable
cause determination at the time of Petitioner’s initial appearance and bound him
over for trial. See N.M.R.A. 7-203(A).
-2-
unless this interpretation is “inconsistent with the fundamental principles of
liberty and justice.” Id. After reviewing the record and Petitioner’s filings on
appeal, we see no issue of fundamental unfairness in the state court’s
interpretation in this case, and we conclude that reasonable jurists would not
debate the district court’s dismissal of Petitioner’s claims relating to this issue.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
With respect to the juror questionnaires, Petitioner argued below that the
trial court denied his right to a fair trial by denying his request for a continuance
after allowing him only twenty minutes to review the forty questionnaires. When
the magistrate judge recommended dismissal of this claim because Petitioner had
pointed to no evidence of juror bias, Petitioner responded: “In considering this
issue the sole question IS NOT: whether or not the jury was bias[ed]. The sole
question is whether or not twenty minutes, alone, is enough time to read forty
Juror Question[n]aires.” (R. at 223.) Although he subsequently moved to expand
the record to include the juror questionnaires, he argued they were relevant
simply to demonstrate that these forty questionnaires could not be reviewed
within twenty minutes. Based on the arguments presented before the district
court and our review of the record on appeal, we conclude that reasonable jurists
would not debate the district court’s dismissal of this claim due to Petitioner’s
failure to establish he was denied the right to a fair and impartial jury through the
trial court’s denial of a continuance.
-3-
In his petition for a certificate of appealability, Petitioner argues for the
first time that certain of the juror questionnaires reveal actual or potential bias,
demonstrating that his rights to a fair trial were prejudiced by the insufficient
time he was given to review the questionnaires. However, “absent extraordinary
circumstances, we will not consider arguments raised for the first time on appeal.
This is true whether an appellant is attempting to raise a ‘bald-faced new issue’ or
‘a new theory on appeal that falls under the same general category as an argument
presented at trial.’” McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th
Cir. 2002) (internal citation omitted) (quoting Lyons v. Jefferson Bank & Trust,
994 F.2d 716, 722 (10th Cir. 1993)). We decline to grant a certificate of
appealability for Petitioner to raise a theory of bias that he affirmatively
disavowed before the district court.
We DENY Petitioner’s motion to expand the record on appeal. Petitioner’s
motion for an order permitting him to file handwritten pleadings is DENIED as
moot—pro se litigants are not prohibited from filing handwritten pleadings in this
court, and such an order is therefore unnecessary. In accordance with our
standard procedures, we have reviewed all of Petitioner’s handwritten filings in
this case. After reviewing these filings and the record on appeal, however, we
conclude that reasonable jurists would not debate the dismissal of Petitioner’s
habeas petition. Therefore, for substantially the same reasons given by the
magistrate judge and the district court, we DENY Petitioner’s request for a
-4-
certificate of appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
-5-
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1561
_____________
UNITED STATES OF AMERICA
v.
STEIN SCRUGGS,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. Action No. 2-12-cr-00295-003)
District Judge: Honorable Gene E.K. Pratter
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 19, 2015
______________
Before: FUENTES, GREENAWAY, JR., and SLOVITER, Circuit Judges.
(Opinion Filed: July 15, 2015 )
______________
OPINION*
______________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Stein Scruggs (“Scruggs”) appeals the judgment of conviction imposed by the
United States District Court for the Eastern District of Pennsylvania. His counsel filed a
brief, pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that no
nonfrivolous issues exist for appeal and seeking to withdraw as counsel. For the reasons
below, we will grant counsel’s motion to withdraw and affirm the District Court’s
judgment of conviction.
I. Background
Scruggs worked at a McDonald’s restaurant in Philadelphia, Pennsylvania. He
recruited two childhood friends, Tyjuan Waters (“Waters”) and Nathaniel Coleman
(“Coleman”), to stage an armed robbery of the restaurant. On February 12, 2012, the
three confederates arrived just before the McDonald’s closed. Scruggs waited until the
parking lot was clear then instructed Waters and Coleman to “go.” (Supp. App. 366.)
Wearing masks to conceal their identities and armed with a shotgun, they grabbed the
store manager who was just outside of the door smoking and forced her back into the
restaurant. Once inside, they ordered the store manager and two other employees to the
back of the McDonald’s. Waters and Coleman forced the store manager to open the
McDonald’s office safe. They retrieved approximately $2,171 from the safe.
Waters and Coleman fled to the getaway car. Scruggs drove the car. Meanwhile,
the McDonald’s employees notified the police. Philadelphia police officers noticed a
2
dark vehicle with occupants matching the clothing description of the robbers traveling
away from the crime scene. The officers observed Scruggs, who appeared nervous,
driving the dark vehicle. When the police officers attempted to stop the car, Scruggs
sped away. With police chasing, he disregarded stop signals, jumped a curb, and
eventually crashed into another vehicle head-on. Scruggs, Waters, and Colemen fled the
crash scene, but they were all quickly apprehended.
As a consequence of the crash, the shotgun, employee cell phones, and stolen
money were recovered in plain view from the getaway vehicle.
After his arrest, Scruggs indicated that he wanted to make a statement to the police
detectives. After the detectives informed Scruggs of his Miranda rights, which he
waived both orally and in writing, he gave an oral statement to detectives describing his
role in the robbery. In addition, he signed a written confession. No issue of coercion or
undue influence arose or is presently posited.
A federal grand jury returned a three-count superseding indictment charging
Scruggs with conspiracy to commit robbery; robbery; and using, carrying, and
brandishing a firearm during, and in relation to, a crime of violence. Prior to trial, the
District Court denied Scruggs’s motions to suppress the physical evidence seized from
the getaway car and the statement he gave while in police custody. At trial, Scruggs was
convicted on all three counts.
The District Court imposed a sentence of 121 months of imprisonment on the first
3
two counts, and a consecutive term of 84 months of imprisonment on the third count.
Defense counsel filed a brief pursuant to Anders v. California and moved to
withdraw as counsel. Scruggs submitted a pro se brief claiming that the District Court
applied the wrong law and “applied the wrong sentencing enhancements.” (Pro Se Br. at
5-6.)
II. Jurisdiction
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
III. Standard of Review
“In Anders v. California, [ ] the Supreme Court explained the general duties of a
lawyer representing an indigent criminal defendant on appeal when the lawyer seeks
leave to withdraw from continued representation on the grounds that there are no
nonfrivolous issues to appeal.” United States v. Marvin, 211 F.3d 778, 779 (3d Cir.
2000) (citation omitted). The attorney must always “support his client’s appeal to the
best of his ability.” Anders, 386 U.S. at 744. If, however, “counsel finds his case to be
wholly frivolous, after a conscientious examination of it, he should so advise the court
and request permission to withdraw.” Id.
To withdraw, counsel must “satisfy the court that he or she has thoroughly
scoured the record in search of appealable issues,” and “explain why the issues are
frivolous.” Marvin, 211 F.3d at 780. Hence, this Court’s inquiry when considering a
4
counsel’s Anders brief is twofold: “(1) whether counsel adequately fulfilled the [Third
Circuit Local Appellate Rule 109.2’s] requirements; and, (2) whether an independent
review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d
296, 300 (3d Cir. 2001). If an appeal is judged to be wholly frivolous, this Court “will
grant trial counsel’s Anders motion, and dispose of the appeal without appointing new
counsel.” Id. (quoting 3d Cir. L.A.R. Rule 109.2(a) (internal quotation marks omitted)).
IV. Analysis
In order to satisfy the adequacy requirements of an Anders brief, counsel seeking
to withdraw must demonstrate “sufficient indicia” that he or she has “explored all
possible issues for appeal.” Marvin, 211 F.3d at 781. Except in cases where
“frivolousness is patent,” counsel must “[explain] the faults in the [defendant’s]
arguments” and “adequately attempt[] to uncover the best arguments for his or her
client.” Id.
Counsel identified four potential issues in his brief: (1) whether there was
reasonable suspicion to perform a vehicle stop of the getaway car; (2) whether Scrugg’s
confession was coerced; (3) whether there was sufficient evidence supporting the jury’s
verdict against Scruggs; and (4) whether the District Court’s sentence was procedurally
and substantively reasonable. In addition, Scruggs submitted a pro se brief arguing that
the District Court “applied the wrong sentencing enhancements.” (Pro Se Br. at 6.) We
are satisfied that counsel’s Anders brief is adequate. Our examination of the record
5
relating to the issues raised by counsel and by Scruggs reveals no nonfrivolous
arguments.
Before trial, Scruggs sought to suppress the evidence recovered from the crashed
getaway car. The police had reasonable suspicion to attempt to stop the getaway car. See
United States v. Goodrich, 450 F.3d 552, 558-60 (3d Cir. 2006). The getaway car was
the only car seen driving in the direction away from the McDonald’s late that night. The
police officers observed the car driving erratically, including suspiciously slowing down
at green lights. Scruggs, the driver, appeared visibly nervous. The dark clothing of the
car’s occupants matched the description given by the robbery victims. Accordingly, the
threshold requirement for reasonable suspicion to stop the car was met, and this issue
presents no nonfrivolous basis for appeal.1
In addition, Scruggs sought to suppress the oral and written confessions he made
to police. Under Miranda v. Arizona, 384 U.S. 436 (1966), a suspect subject to police
interrogation may waive his right to silence only after he has provided a waiver
“voluntarily, knowingly and intelligently.” Id. at 444. In this case, Scruggs’s confession
followed an adequate Miranda warning and waiver. Scruggs initiated the interview with
police detectives. His admissions were preceded by both oral and written warnings and
waivers. There were no indicia of intimidation or coercion. As such, Scruggs’s
confession was properly admitted at trial, and offers no nonfrivolous basis for appeal.
6
The jury verdict was supported by overwhelming evidence presented at trial.
Multiple robbery victims identified Scruggs as a former employee with intimate
knowledge of the layout and inner workings of this particular McDonald’s. Police
officers testified that Scruggs, along with Waters and Coleman, were arrested after the
getaway car crashed into a civilian vehicle. Stolen money in a duffle bag and the shotgun
used in the robbery were recovered in their possession. Beyond that, Coleman testified
and explained Scruggs’s leadership role in the planning and executing of the robbery.
Coleman also confirmed that Scruggs was the driver of the getaway car.
This Court reviews District Court sentencing for procedural and substantive
reasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). “The abuse-
of-discretion standard applies to both our procedural and substantive reasonableness
inquiries.” Id.
In order to be procedurally reasonable, a sentencing court must follow a three-step
process. United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). The court begins by
correctly determining the applicable Guidelines range. Second, the court determines
whether to adjust the Guidelines range based upon motions for departure. Third, the
court considers the factors set forth in 18 U.S.C. § 3553(a). The District Court properly
followed this three-step process.
In assessing the substantive reasonableness of a procedurally sound sentence, this
1
Further, the exigency of the fire following the car crash authorized the seizure of
7
Court has stated that it will “affirm [the District Court] unless no reasonable sentencing
court would have imposed the same sentence on that particular defendant for the reasons
the [D]istrict [C]ourt provided.” Tomko, 562 F.3d at 568. This substantive review is
based on the “totality of the circumstances” according to an abuse-of-discretion standard.
Id. at 567. Scruggs’s sentence was substantively reasonable. Scruggs did not object to
the Guidelines calculation and the sentence falls within the Guidelines range. The
District Court gave extensive consideration to the relevant § 3553(a) factors and provided
Scruggs with an opportunity to be heard.
Finally, the sentence enhancements imposed by the District Court on Scruggs were
proper. This Court reviews a district court’s ruling on a sentence enhancement that
requires a predominantly factual inquiry for clear error. See United States v. Richards,
674 F.3d 215, 221-22 (3d Cir. 2012). At sentencing, Scruggs received three sentence
enhancements. First, a four-point enhancement was imposed for abduction, pursuant to
U.S.S.G. § 2B.3.1(b)(4)(A). Second, a two-point enhancement was added for Scruggs’s
leadership role, pursuant to U.S.S.G. § 3B1.1(c). Third, a two-point enhancement was
given for reckless endangerment during flight, pursuant to U.S.S.G. § 3C1.2.
The sentencing enhancement for abduction was properly imposed. The
enhancement is appropriate when victims are forced to accompany the offender to a new
location in furtherance of the offender’s crime or escape. United States v. Reynos, 680
the items from the car. See Missouri v. McNeely, 133 S.Ct. 1552, 1558-59 (2013).
8
F.3d 283, 286 (3d Cir. 2012). The enhancement has been specifically upheld for the
robbery of a restaurant where employees were forced by “gunpoint” to move into the
“cash register area.” Id. (internal quotation marks omitted). In this case, the robbers
forced the store manager at gunpoint to move from outside the McDonald’s to the back of
the restaurant in order to obtain access to the office safe.
The sentencing enhancement for leadership was also properly imposed. In
distinguishing between a “leader” and a mere manager, this Court has observed that an
“organizer” or “leader” must have “exercised some degree of control over others
involved in the commission of the offense.” United States v. Helbling, 209 F.3d 226, 243
(3d Cir. 2000) (internal quotation marks and citations omitted). Scruggs provided
leadership to his co-conspirators in many ways. He recruited them for his robbery
scheme. He informed them about the inner workings of the McDonald’s as well as the
location of the office safe. He gave Waters and Coleman the signal to begin the robbery,
and he drove the getaway car.
Finally, the sentencing enhancement for reckless endangerment during flight was
properly imposed. The enhancement is warranted when a “defendant recklessly created a
substantial risk of death or serious bodily injury to another person in the course of fleeing
from a law enforcement officer.” U.S.S.G. § 3C1.2. Scruggs’s flight from the police
supports application of the enhancement since Scruggs disregarded stop signs, and
ultimately crashed head-on into an oncoming vehicle.
9
V. Conclusion
We find that no nonfrivolous issues exist for consideration on appeal. We will
grant counsel’s request to withdraw, pursuant to Anders, and will affirm the District
Court’s judgment of conviction. Counsel is relieved of any obligation to file a petition
for a writ of certiorari in the Supreme Court of the United States. 3d Cir. L.A.R.
109.2(b).
10
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62 S.E.2d 327 (1950)
232 N.C. 699
BRAFFORD
v.
COOK.
No. 525.
Supreme Court of North Carolina.
November 22, 1950.
*328 J. L. Hamme, Gastonia, for plaintiff, appellant.
James Mullen, Gastonia, for defendant, appellee.
STACY, Chief Justice.
It would seem that the trial court was influenced by the defendant's evidence in sustaining his demurrer and entering a compulsory nonsuit. However, as the defendant's evidence is in direct conflict with the evidence of the plaintiff, its credibility is for the jury and it is not to be considered by the court on motion for involuntary nonsuit. Jackson v. Hodges, N.C., 62 S.E.2d 326; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757.
For present purposes, the plaintiff's evidence is to be taken as true, and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom. Howard v. Bell, N.C., 62 S.E.2d 323; Graham v. North Carolina Butane Gas Co., supra; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; State v. Blankenship, 229 N.C. 589, 50 S.E.2d 724; Love v. Zimmerman, 226 N.C. 389, 38 S.E.2d 220; State Highway & Public Works Comm. v. Diamond S. S. Transp. Corp., 226 N.C. 371, 38 S.E.2d 214; Davis v. Wilmerding, 222 N.C. 639, 24 S.E.2d 337; Diamond v. McDonald Service Stores, 211 N.C. 632, 191 S.E. 355; Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787, 178 S.E. 601.
If the defendant came from behind the car in the northern lane at a terrific rate of speed, knocked the plaintiff angling for a distance of 15 yards and was unable to stop his truck under 75 yards from where he struck the plaintiff, as plaintiff's witness says, it would seem to be fairly debatable whether his speed was reasonable and prudent under the conditions then existing. G.S. § 20-141 (a); State v. Blankenship, supra; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Baker v. Perrott, 228 N.C. 558, 46 S.E.2d 461; Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915. True, the testimony of plaintiff's witness as to the speed of the truck was weakened somewhat on cross-examination, but this would still require a finding to determine the matter. Shell v. Roseman, 155 N.C. 90, 71 S.E. 86. Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court. Jackson v. Hodges, supra, and cases cited; Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372; Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793; Emery v. Lititz Mut. Ins. Co., 228 N.C. 532, 46 S.E.2d 309; Lincoln v. Atlantic Coast Line R. Co., supra.
The case seems to be one for the jury. Williams v. Kirkman, N.C., 61 S.E. 2d 706; Bailey v. Michael, supra; Lincoln v. Atlantic Coast Line R. Co., supra.
Reversed.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/02/2018 01:12 AM CST
- 669 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAMPBELL v. HANSEN
Cite as 298 Neb. 669
Herbert Lee Campbell, appellant,
v. Brad H ansen, appellee.
___ N.W.2d ___
Filed January 12, 2018. No. S-17-399.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
which does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent from the lower court’s decision.
2. Affidavits: Appeal and Error. When an in forma pauperis application
is denied and the applicant seeks leave to proceed in forma pauperis in
order to obtain appellate review of that denial, the trial court does not
have authority to issue an order that would interfere with such appel-
late review.
3. Jurisdiction: Affidavits: Appeal and Error. In an interlocutory appeal
from an order denying leave to proceed in forma pauperis, an appel-
late court obtains jurisdiction over the appeal upon the timely fil-
ing of a notice of appeal and a proper in forma pauperis application
and affidavit.
Petition for further review from the Court of Appeals, Inbody,
R iedmann, and A rterburn, Judges, on appeal thereto from the
District Court for Johnson County, Vicky L. Johnson, Judge.
Judgment of Court of Appeals reversed, and cause remanded
for further proceedings.
Herbert Lee Campbell, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
- 670 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAMPBELL v. HANSEN
Cite as 298 Neb. 669
Cassel, J.
INTRODUCTION
This appeal presents a slightly different question from our
recent decision in Mumin v. Frakes.1 Here, the question is
whether a petitioner for habeas corpus relief whose initial
motion to proceed in forma pauperis (IFP) was denied and
who takes a timely interlocutory appeal from that denial,
accompanied by a motion to proceed IFP on appeal, must file
a second appeal where the district court also denies the second
IFP motion. Because the Nebraska Court of Appeals’ summary
dismissal incorrectly determined that a second appeal was nec-
essary, we reverse, and remand for further proceedings.
BACKGROUND
Herbert Lee Campbell filed a petition for writ of habeas
corpus along with a motion to proceed IFP and poverty affi-
davit. The district court for Johnson County denied the motion
by placing an “X” on the line corresponding to the following:
“The Court hereby denies Motion to Proceed [IFP] for reason
this is a meritless/frivolous action. The party filing the appli-
cation shall have thirty days to proceed with an action or
appeal upon payment of fees, costs, or security.”
Within 30 days, Campbell initiated an appeal from the dis-
trict court to the Court of Appeals, by filing a notice of appeal
along with a second motion to proceed IFP and a second pov-
erty affidavit. On May 5, 2017, the district court denied the
second motion to proceed IFP, that is, the motion to proceed
IFP on appeal. The court’s order stated that the legal positions
advanced were frivolous and that Campbell had 30 days to
proceed with an action or appeal upon payment of fees, costs,
or security.
On June 26, 2017, the Court of Appeals summarily dismissed
the appeal. The court determined that it lacked jurisdiction,
because Campbell did not pay a docket fee or appeal by June 5
1
Mumin v. Frakes, ante p. 381, ___ N.W.2d ___ (2017).
- 671 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAMPBELL v. HANSEN
Cite as 298 Neb. 669
from the denial of IFP status on appeal. It subsequently over-
ruled Campbell’s motion for rehearing. We granted Campbell’s
petition for further review and later ordered the appeal to be
submitted without oral argument.
ASSIGNMENT OF ERROR
Campbell assigns that the Court of Appeals erred in conclud-
ing that after the district court dismissed his request to proceed
IFP on appeal, he had 30 days in which to pay a docket fee or
appeal the May 5, 2017, denial of IFP status.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision.2
ANALYSIS
We first dispense with one of Campbell’s arguments in sup-
port of his petition for further review. He asserted that the May
5, 2017, denial of IFP status was not for appeal purposes, but,
rather, was a second denial to proceed IFP on his petition for
writ of habeas corpus. Although we disagree, Campbell’s con-
fusion is somewhat understandable.
The district court’s form of order presented three possible
options for the court to select as its ruling. The court selected
the following option:
The Court hereby denies Motion to Proceed in Forma
Pauperis[.] The legal positions advanced by petitioner
are frivolous. The writ is a collateral attack on a judg-
ment of a valid conviction. The court had jurisdiction
of the parties and subject matter and such a writ will
not lie. See Peterson v. Houston, 284 Neb. 861 (2012).
The party filing the application shall have thirty days
2
State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015).
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAMPBELL v. HANSEN
Cite as 298 Neb. 669
to proceed with an action or appeal upon payment of
fees, costs, or security.
The court’s ruling did not specifically state that it was deny-
ing IFP for purposes of appeal. But the option for granting the
motion to proceed IFP stated that it was “for appeal purposes.”
Given this context and because Campbell filed the motion with
his notice of appeal, we are satisfied that the court’s denial of
IFP status in the May 2017 order was addressed to his substi-
tute for the statutory docket fee on appeal and not in further
response to his initial motion to proceed IFP.
Campbell also asserted that “the district court was with-
out jurisdiction to enter the May 5, 2017 order.”3 Although
Campbell did not elaborate, he cited State v. Carter 4 and Neb.
Rev. Stat. § 25-2301.02 (Reissue 2016). Section 25-2301.02
authorized Campbell’s interlocutory appeal from the denial of
his first motion to proceed IFP and would have required that
he be provided with a free transcript of the hearing on IFP eli-
gibility, had there been such a hearing. To the extent Campbell
is arguing that the district court could not interfere with his
right to an interlocutory appeal of the denial of his request to
proceed IFP, we agree.
[2] We recently clarified that a court does not have author-
ity to deny a second request to proceed IFP made as part of
an interlocutory appeal seeking appellate review of an initial
denial of a request to proceed IFP.5 As we explained in Glass
v. Kenney 6 and repeated in Mumin v. Frakes,7 when an IFP
application is denied and the applicant seeks leave to pro-
ceed IFP in order to obtain appellate review of that denial,
the trial court does not have authority to issue an order that
3
Brief for appellant in support of petition for further review at 3.
4
State v. Carter, supra note 2.
5
See Mumin v. Frakes, supra note 1.
6
See Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).
7
See Mumin v. Frakes, supra note 1.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAMPBELL v. HANSEN
Cite as 298 Neb. 669
would interfere with such appellate review. Here, the district
court did just that. After denying Campbell’s application to
proceed IFP at the commencement of the case, the court also
denied his application to proceed IFP on appeal from the ini-
tial denial.
At this juncture, the procedural posture of Campbell’s case
diverges from that in Glass v. Kenney and Mumin v. Frakes.
In those cases, the applicant also filed an appeal from the
denial of IFP status on appeal. Here, Campbell did not do
so. For that reason, the Court of Appeals concluded it lacked
jurisdiction.
[3] But Campbell took the necessary steps to vest jurisdic-
tion with the Court of Appeals. In an interlocutory appeal
from an order denying leave to proceed IFP, an appellate court
obtains jurisdiction over the appeal upon the timely filing of
a notice of appeal and a proper IFP application and affidavit.8
Campbell timely filed a notice of appeal, a motion to proceed
IFP, and a poverty affidavit. Thus, the Court of Appeals erred
in dismissing the appeal for lack of jurisdiction.
The Court of Appeals did not have the benefit of our Mumin
v. Frakes opinion, and its dismissal is understandable under
the circumstances. In Glass v. Kenney and State v. Carter,9 the
applicants each filed two appeals—one appeal from an initial
order denying IFP and a second appeal from an order deny-
ing IFP on appeal. Thus, the Court of Appeals was under the
impression that Campbell should have paid a docket fee or
appealed the May 2017 denial of IFP status.
But as our Mumin v. Frakes opinion explained, because
another statute authorizes commencement of a habeas corpus
proceeding without advance payment of fees,10 Campbell’s
petition for a writ of habeas corpus was properly filed with
the district court whether the first motion to proceed IFP
8
See Glass v. Kenney, supra note 6.
9
State v. Carter, supra note 2.
10
See Neb. Rev. Stat. § 29-2824 (Reissue 2016).
- 674 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
CAMPBELL v. HANSEN
Cite as 298 Neb. 669
was granted or denied. Moreover, requiring an appeal from
the second motion to proceed IFP unnecessarily multiplies
appeals. As we pointed out in Mumin v. Frakes, where no
prepayment of fees or costs is required, deferring the ruling
on an IFP application would permit a trial court to reach the
merits of the case without a lengthy delay resulting from an
interlocutory appeal from an order denying IFP. Here, as in
Mumin v. Frakes, there was no district court order directly
ruling on the petition for writ of habeas corpus. Rather,
Campbell’s appeal ran solely from the first order denying IFP
status. According to § 25-2301.02, Campbell was entitled to
appellate review of the district court’s initial denial of IFP
status. He cannot be required to pay a docket fee in order to
obtain such review; rather, his poverty affidavit served as a
substitute for the statutory docket fee otherwise required.11
The Court of Appeals erred in dismissing the appeal for lack
of jurisdiction.
CONCLUSION
Because the Court of Appeals acquired jurisdiction upon
Campbell’s timely filing of a notice of appeal, accompanied
by an application for IFP status and poverty affidavit, we
reverse its decision dismissing the appeal. We remand the
cause to the Court of Appeals for a determination on the mer-
its of the error assigned by Campbell regarding the denial of
his first motion to proceed IFP.
R eversed and remanded for
further proceedings.
Wright, J., not participating.
11
See Neb. Rev. Stat. §§ 25-1912 and 33-103 (Reissue 2016).
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254 S.E.2d 14 (1979)
297 N.C. 144
STATE of North Carolina
v.
Glenn Wood FORD.
No. 59.
Supreme Court of North Carolina.
April 20, 1979.
*17 Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.
Richard W. Gabriel, Greensboro, for defendant.
SHARP, Chief Justice.
Defendant's first assignment of error is that the court's denial of his motion "for disclosure of impeaching information" constituted a denial of his constitutional rights of due process. In this motion defendant requested that the State be ordered to disclose (1) all prosecutions, investigations or possible prosecutions which had been brought or which were pending against the State's prosecuting witness Larry Lee Smith; (2) "all records and information revealing felony convictions attributed to this witness"; and (3) "all records and information showing prior misconduct or bad acts committed by this witness."
We note first that North Carolina law does not grant defendant the right to discover the criminal record of a State's witness. This right did not exist at common law and G.S. 15A-903 does not grant the defendant the right to discover the names, addresses, or criminal records of the State's witnesses. See State v. Smith, 291 N.C. 505, 523, 231 S.E.2d 663, 674-5 (1976). The only issue, therefore, is whether the information which defendant sought from the prosecution was of such significance that the prosecutor's failure to disclose it resulted in the denial of the defendant's due process right to a fair trial. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The answer is most certainly No.
To establish a denial of due process defendant would have had to show (1) that Smith had a significant record of degrading or criminal conduct; (2) that the impeaching information sought was withheld by the prosecution; and (3) that its disclosure considered in light of all the evidence would have created a reasonable doubt of his guilt which would not otherwise exist. United States v. Agurs, supra at 112, 96 S.Ct. at 2401-2, 49 L.Ed.2d at 354-55. In this case, the defendant failed to show that the State knew of any criminal convictions against its witness Smith or that Smith, in fact, had any criminal record. Indeed, during his cross-examination of Smith defense counsel did not once ask him if he had ever been convicted of a violation of the law. Such an inquiry of course, would have been a proper subject for cross-examination. State v. Foster, 293 N.C. 674, 684-685, 239 S.E.2d 449, 456-7 (1977). Defendant's first assignment of error is overruled.
*18 Defendant's eighth assignment is that the court erred in overruling defendant's motion for judgment as of nonsuit made at the close of all the evidence. In his brief defendant "maintains" that no evidence in this case "can reasonably be construed to show an intentional killing with a deadly weapon." This assertion sets at naught the testimony of Larry Lee Smith, Connie Boykin, and Charles Lee Williams, which tended to show:
En route from The Paradise to the Clapp Street party defendant made an extremely obscene remark about the deceased Enoch, who was then sitting in the back seat of Smith's automobile with Connie Boykin. At the party defendant again expressed resentment toward Enoch when he ordered "a guy" who was disputing with Connie "not to be arguing with my woman." In consequence, Smith intervened to prevent a fight between Enoch and defendant. A few minutes later, Boykin and Williams saw defendant strike the drunken Enoch, who immediately slumped over a Plymouth automobile. When Smith went to investigate he found Enoch slumped against the car and defendant standing in front of him. In his hand defendant held an open knife with a blade three or four inches long. Defendant, who helped Smith put the bleeding Enoch in Smith's car, urged him to drive fast to the hospital because, he said, he had cut Enoch twice. In the emergency room, after it became apparent that Enoch's condition was serious, defendant said to Smith, "Look, man, don't say nothing."
This evidence was clearly sufficient to take the issue of defendant's guilt of second degree murder to the jury. The credibility of the State's and defendant's witnesses was for the jury and their decision was to accept the State's version of the knifing on Clapp Street. Defendant's eighth assignment of error is overruled.
We next examine defendant's 13th assignment of error, that the trial judge erred in denying defendant's motion for a recess to locate an allegedly newly discovered witness. Just prior to the judge's charge, after defendant had rested his case, he requested the court to grant a recess for the purpose of allowing him to locate Ricky Johnson. Defense counsel said that Ricky Johnson "is alleged to have been the occupant of the apartment on Clapp Street at which the party was held and in which the defense is informed was an eyewitness to this matter."
A motion to recess is addressed to the sound discretion of the trial judge, and nothing in the record of the case suggests that the judge abused his discretion in denying defendant's motion. The record shows that the defense attorney had been appointed six months before the trial. No subpoena had been issued for Ricky Johnson, whose presence at the party was well known to defendant's main witness, Kenneth Eugene Street, who testified that it was Ricky who broke up Connie Boykin's first argument after she arrived at the party. He did not, however, mention his presence in the street when he testified he saw Smith stab Enoch. It is hardly plausible that Street would have overlooked a witness who would have corroborated his testimony had one been available. Assignment No. 13 is overruled.
Defendant's assignment No. 14 challenges the court's failure to instruct the jury on the lesser included offense of voluntary manslaughter.
A trial judge's duty to instruct the jury as to a lesser included offense of the crime charged arises only when there is evidence from which the jury could find that the defendant committed the lesser offense. When there is no such evidence the court should refuse to charge on the unsupported lesser offense. State v. Hampton, 294 N.C. 242, 239 S.E.2d 835 (1978). In this case all the evidence tends to show that the person who stabbed Enoch intentionally assaulted him with a deadly weapon, the use of which proximately caused his death. This evidence was sufficient to raise the inference that the killing was unlawful and done with malice. State v. Berry, 295 N.C. 534, 246 S.E.2d 758 (1978); State v. Price, 271 N.C. 521, 157 S.E.2d 127 (1967). The record is devoid of any evidence tending to *19 show a killing in the heat of passion or the use of excessive force in the exercise of the right of self-defense. Defendant's evidence was to the effect that he never assaulted the deceased, but that the witness, Larry Lee Smith, was the killer. This evidence did not tend to raise the issue of malice or unlawfulness but to show that defendant was not the killer and thus not guilty of any crime. We hold, therefore, that there was no evidence to support the lesser included offense of manslaughter. See State v. Hampton, supra.
Defendant's remaining assignments disclose no prejudicial error and merit no discussion. We find no cause to disturb the jury's verdict.
No Error.
BROCK, J., did not participate in the decision of this case.
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10-5063-ag
Liu v. Holder
BIA
LaForest, IJ
A088 517 178
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24th day of April, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 WENXIN LIU, a.k.a. WEN XING LIU,
14 Petitioner,
15
16 v. 10-5063-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Russel J.E. Verby, Senior
27 Litigation Counsel; Jennifer P.
28 Levings, Senior Litigation Counsel,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Wenxin Liu, a native and citizen of the People’s
7 Republic of China, seeks review of the November 18, 2010,
8 order of the BIA affirming the November 21, 2008, decision
9 of Immigration Judge (“IJ”) Brigitte LaForest, which denied
10 his applications for asylum, withholding of removal, and
11 relief under the Convention Against Torture (“CAT”). In re
12 Wenxin Liu, No. A088 517 178 (B.I.A. Nov. 18, 2010), aff’g
13 No. A088 517 178 (Immig. Ct. N.Y. City Nov. 21, 2008). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we review the
17 decision of the IJ as supplemented by the BIA. See Yan Chen
18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
19 applicable standards of review are well-established. See
20 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
21 562 F.3d 510, 513 (2d Cir. 2009).
22 For asylum applications, such as Liu’s, governed by the
23 amendments made to the Immigration and Nationality Act by
2
1 the REAL ID Act of 2005, the agency may, considering the
2 totality of the circumstances, base a credibility finding on
3 an asylum applicant’s “demeanor, candor, or responsiveness,”
4 the plausibility of his or her account, and inconsistencies
5 in his or her statements, without regard to whether they go
6 “to the heart of the applicant’s claim.” See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
8 167 (2d Cir. 2008). We will “defer . . . to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
12 In this case, the IJ reasonably based her adverse
13 credibility determination on Liu’s disparate claims, the
14 inconsistencies in his testimony, and the lack of convincing
15 corroborative evidence.
16 Liu testified that several Chinese policemen arrested,
17 confined, and beat him for seven days after finding him
18 watching Falun Gong discs. Yet, as he admitted in his
19 asylum application, he offered an entirely different, and
20 false, claim during a credible fear interview, initially
21 attesting that Chinese government officials beat him after
22 he sought compensation from the government. Liu also
3
1 alleged that he practiced Falun Gong regularly in the United
2 States, but when questioned as to why his friends refused to
3 submit affidavits, he gave conflicting testimony as to
4 whether his fellow Falun Gong practitioners had immigration
5 status in the United States.
6 The IJ properly relied on these inconsistencies and
7 lack of corroborative evidence to discredit Liu’s
8 explanation and find him not credible. See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Yun-Zui Guan v. Gonzales, 432 F.3d
10 391, 398-99 (2d Cir. 2005) (holding that where “immigration
11 officials have been presented with two materially different
12 asylum claims, it is entirely appropriate for a factfinder
13 to rely on this evidence as a basis for determining whether
14 a petitioner was actually persecuted in the manner asserted”
15 (internal quotations omitted)); Majidi v. Gonzales, 430 F.3d
16 77, 80-81 (2d Cir. 2005) (the agency need not credit an
17 applicant’s explanations for inconsistent testimony unless
18 those explanations would compel a reasonable fact finder to
19 do so).
20 Given Liu’s lack of credibility, the agency also
21 reasonably declined to credit the dismissal letter and
22 affidavits Liu submitted, particularly as the preparers were
4
1 not available for cross-examination. See Siewe v. Gonzales,
2 480 F.3d 160, 170 (2d Cir. 2007) (“a single instance of
3 false testimony may . . . infect the balance of the alien’s
4 uncorroborated or unauthenticated evidence”). Although Liu
5 argues that the IJ failed to consider the photographs of his
6 Falun Gong practice, the IJ sufficiently acknowledged the
7 photographs by accepting them into evidence. See Wei Guang
8 Wang v. BIA, 437 F.3d 270, 273-75 (2d Cir. 2006); Xiao Ji
9 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d
10 Cir. 2006). The totality of the circumstances therefore
11 supports the agency’s adverse credibility determination, and
12 we defer to that finding. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
14 Furthermore, because the only evidence of a threat to Liu’s
15 life or freedom, or that he was likely to be tortured,
16 depended upon his credibility, the adverse credibility
17 determination in this case necessarily precludes success on
18 his claims for withholding of removal and CAT relief. See
19 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
20 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
21 2005).
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6
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682 S.W.2d 550 (1985)
Allan BECK, Appellant,
v.
The STATE of Texas, Appellee.
No. 189-83.
Court of Criminal Appeals of Texas, En Banc.
January 9, 1985.
*552 Scott E. Segall, El Paso, for appellant.
Steve W. Simmons, Dist. Atty. and David Clay Cowan, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
This is an appeal from a conviction for the second-degree felony offense of escape under V.T.C.A., Penal Code, § 38.07(d). The punishment was assessed at 20 years' imprisonment. On appeal the conviction was reversed by the El Paso Court of Appeals. Beck v. State, 647 S.W.2d 55 (Tex. Cr.App.1983). The court found the trial court erred in overruling appellant's motion to set aside the indictment, finding a lack of specificity in the notice given in that the indictment failed to state the victim of appellant's alleged use or threatened use of a deadly weapon in the course of his escape. We granted the State's petition for discretionary review to determine the correctness of that decision.
V.T.C.A., Penal Code, § 38.07, provides:
"(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.
"(b) Except as provided in Subsections (c) and (d) of this section, an offense under this section is a Class A misdemeanor.
"(c) An offense under this section is a felony of the third degree if the actor:[1]
"(1) is under arrest for, charged with, or convicted of a felony; or
"(2) is confined in a penal institution.
"(d) An offense under this section is a felony of the second degree if the actor used or threatened to use a deadly weapon to effect his escape."[2]
The Practice Commentary to said § 38.07 provides:
"This section restates Penal Code arts. 353a, 353b, and 353d without significant change ....
"The offense is aggravated to a third-degree felony if the escapee was charged with or convicted of a felony or was confined in a penal institution and to a second-degree felony if he used or threatened to use a deadly weapon. These aggravating factors are roughly the same as prior law."
The elements necessary to establish the offense of escape are:
"(1) a person (2) who has been arrested for, charged with, or convicted of an offense (3) when he knowingly and intentionally (4) escapes from custody[3] [for a *553 felony] (5) and the offense for which he was arrested, charged or convicted was a felony or (6) the custody was confinement in a penal institution, or (7) he used or threatened to use a deadly weapon." See Branch's 3rd Ed., Texas Annotated Penal Statutes, Vol. III, § 38.07, p. 126.
The second count of the indictment upon which the conviction was based reads:
"The Grand Jurors for the County of El Paso, State aforesaid, duly organized as such, at the January term, A.D. 1981, of the 120th Judicial District Court for such county upon their oaths in said court, present that Allen Beck, hereinafter styled Defendant, on or about the 22nd day of March One Thousand Nine Hundred and Eighty one and anterior to the presentment of this indictment, in the County of El Paso and State of Texas, did then and there unlawfully intentionally and knowingly escape from the custody of the Sheriff of El Paso County, Texas when he, the said Allen Beck, had been charged with Robbery (Enhanced), a felony, by using and threatening to use a deadly weapon, towit: a sharpened metal object, that in the manner of its use and intended use was capable of causing death and serious bodily injury."
It is clear that the indictment charged a second-degree felony under V.T.C.A., Penal Code, § 38.07(d). The indictment form tracks the various form books examined. See also and cf. Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976).
Appellant's motion to "quash" the indictment stated in part:
"The indictment does not say against whom the ... `sharpened metal object that in its manner of use or intended use was capable of causing death and serious bodily injury ....' was directed against, therefore denying Defendant notice, as is required by the Texas and United States Constitution (sic), and therefore would not fully act as double jeopardy as is required by the United States and the Texas constitution (sic)." (Emphasis supplied.)
When the motion was presented to the trial court, it was summarily overruled.
The El Paso Court of Appeals found the trial court erred. It did not find the instant indictment fundamentally defective or that any essential element was not alleged, but that it was defective in the sufficiency of notice as to the identity of the victim of the aggravating feature of the offense, a fact crucial to the appellant's preparation of a defense to the main charge, where specification of the victim's identity was properly sought by the motion to quash the indictment, challenging the notice afforded by the pleadings.[4]
Article 21.11, V.A.C.C.P., provides in part:
"An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the *554 court, on conviction, to pronounce the proper judgment; ...."
Article 21.04, V.A.C.C.P., provides:
"The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense."
Thus an offense should be charged in plain and intelligible words with such certainty as to enable an accused to know what he will be called upon to defend against and to enable him to plead judgment that may be given as it is in bar of any further prosecution for the same offense. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973); Burck v. State, 106 S.W.2d 709 (Tex.Cr. App.1937).
It must also be remembered that it is the intent of Article I, § 10 of the Texas Constitution that an accused in a particular case must be furnished information upon which he may prepare his defense, and this information must come from the face of the indictment. Moore v. State, supra; Voelkel v. State, 501 S.W.2d 313 (Tex.Cr. App.1973). See also McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979). It is, of course, not sufficient to say the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. Moore v. State, supra; Wilson v. State, supra; Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971).
An indictment should allege all that the State is required to prove. Article 21.03, V.A.C.C.P.; Ex parte Charles, 582 S.W.2d 836 (Tex.Cr.App.1979); Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977). While all the essential elements of the offense must be alleged in the indictment, an indictment drafted in the language of the statute creating and defining an offense is ordinarily sufficient. Few v. State, 588 S.W.2d 578, 583 (Tex.Cr.App.1979). See also Ward v. State, 642 S.W.2d 782 (Tex. Cr.App.1982); Bollman v. State, 629 S.W.2d 54 (Tex.Cr.App.1982); Ex parte Holbrook, 609 S.W.2d 541 (Tex.Cr.App. 1980); Boney v. State, 572 S.W.2d 529 (Tex.Cr.App.1978); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976); Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1954).
It is a rare exception when an indictment drawn in the language of the penal statute is legally insufficient to provide an accused with notice of the offense charged. Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App. 1980); Parr v. State, 575 S.W.2d 522 (Tex. Cr.App.1978); Ames v. State, 499 S.W.2d 110 (Tex.Cr.App.1973); Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973). See also May v. State, 618 S.W.2d 333, 341 (Tex.Cr. App.1981); Zapalac v. State, 638 S.W.2d 546 (Tex.App.-Houston [1st] 1982).
Although, as seen, an indictment which tracks the language of the statute is ordinarily sufficient, this is not always sufficient where more particularity is necessary to meet the requirement of notice to the accused. Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971). The State, however, is not required to plead evidentiary facts which are not essential to provide such notice. Slayton v. State, 633 S.W.2d 934 (Tex.App.-Ft. Worth-1982). Thus, unless a fact is essential for notice to the accused, the indictment need not plead the evidence relied upon by the State. Phillips v. State, supra; Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). However, a motion to set aside an indictment will be allowed if the facts sought are essential to give notice. Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981).
Escape is an offense under Title 8, Chapter 38 of the Penal Code and is an offense against public administration (obstructing government). It is not classified as an offense against the person or against property. The existence of a physically assaulted or injured victim is not an essential element of escape, nor an essential part of the aggravating feature under § 38.07(d). A deadly weapon may be used, or *555 displayed or exhibited, in a threatening manner in an escape or escape attempt without the necessity of any physical contact with, physical assault upon or injury to any individual. No one need suffer bodily injury or a physical assault in order for there to be a complete offense under § 38.07(d). In some escape cases certain individuals may be physically assaulted or injured by use of a deadly weapon and others may be merely threatened with the weapon. All of these individuals will have had the weapon "directed" against them. In a given case these individuals, possibly including law enforcement officers, jail inmates and citizens, could be numerous indeed. Appellant, by his motion to quash, sought the allegation in the indictment of all those against whom the deadly weapon was "directed." In holding the motion to quash was improperly overruled, the Court of Appeals observed that the identity of the "assault victim is not an essential element of the indicted offense," but in view of the facts developed at trial that one individual sustained actual bodily injury, the identity of the "victim of the aggravating offense" was a fact crucial to the appellant's preparation of his defense to the "main charge." It appears to be the holding of the Court of Appeals that appellant was entitled to the name of the party actually injured, the "victim," as a matter of notice even though the indictment was not fundamentally defective. We do not agree.
In the instant case the facts reveal that on March 22, 1981, about 9:15 p.m. the appellant was being held in custody on the eighth floor of the El Paso County jail. He was in a holding cell or tank with other prisoners when a jail guard, Rocko Scandifio, came to get two inmates for telephone call privileges. As he opened the cell door, inmate Turner struck him, knocking him off balance, and inmate Ibanez threatened him with a 12 inch shank. Five men, including appellant Beck, all armed with knives, or shanks, left Scandifio in the cell with three other inmates.
Jose Quiroz, detention officer, was escorting a prisoner on the sixth floor of the jail when the elevator door opened and he was confronted by appellant Beck and three other men. The inmates grabbed Quiroz, hit him in the mouth and covered his mouth. He recognized inmate Reyes as one of those who grabbed him. Ibanez held a shank to Quiroz's left eye and inmate Ortiz was on the other side, and appellant Beck was in between Ibanez and Ortiz. All the men were armed, the appellant with a sharpened screw driver. In the scuffle that followed, Quiroz was stabbed in the left leg or thigh. He did not see who stabbed him, but surmised that from their positions the inmates other than appellant could not have stabbed him. After he was stabbed, Quiroz fell into the elevator and one of the inmates pushed the button. Quiroz was hospitalized. Inmates Turner and Reyes were later found outside the jail and apprehended. Appellant and the other two inmates were found on the sunroof on the sixth floor of the jail. They were all armed and fought the officers who finally subdued them.
The court charged on the law of parties and authorized the jury to convict the appellant of escape as charged if they found he acted alone or with another or others as a party to the offense as the term "party" had been defined in the charge.
All that needed to be proven under § 38.07(d) was that the deadly weapon alleged was used or threatened to be used during the course of the escape. The information requested by the appellant in his motion to quash was essentially evidentiary, rather than being required for the purpose of notice and plea in bar.
The Court of Appeals relied upon King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980), a capital murder case where the conviction was reversed because the court failed to grant the motion to quash the indictment. The indictment alleged while in the course of committing and attempting to commit kidnapping, aggravated rape and robbery the defendant caused the death of Michael Underwood. See V.T.C.A., Penal Code, § 19.03. The motion to quash sought the name of the complainant in the aggravating offenses alleged. The State argued on appeal that the indictment could be read *556 that the alleged victim was also the victim of the kidnapping and robbery. The court held, however, this was not true as to the aggravated rape, and the name of the aggravated rape victim was critical to King's defense, and to insure a bar to a subsequent prosecution for the same offense.
Whatever the continued viability of the holding of King in the context in which it was decided, it is not here applicable in this offense against public administration. Unlike King, there was no ultimate victim of the crime charged, and the criminal conduct constituting an aggravated feature of the offense need not necessarily have a victim or victims.
We conclude that the indictment in the instant case sufficiently alleged facts to enable appellant's counsel to prepare his defense, and to insure his plea in bar. Thomas v. State, supra; Booker v. State, 523 S.W.2d 413 (Tex.Cr.App.1975).[5] The trial court did not err in overruling the motion to quash the indictment.
The judgment of the Court of Appeals is reversed and remanded for consideration of appellant's other grounds of error including a challenge to the sufficiency of the evidence to sustain the conviction.
NOTES
[1] V.T.C.A., Penal Code, § 1.07(a)(2), provides:
"(2) `Suspect' means a person whose criminal responsibility is in issue in a criminal action. Whenever the term `actor' is used in this code, it means `suspect.'" (Acts 1977, 65th Leg., p. 2123, ch. 848, eff. Aug. 29, 1977). (Emphasis supplied.)
[2] A deadly weapon is defined in V.T.C.A., Penal Code, § 1.07(a)(11), as:
"(A) * * *
"(B) Anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."
It has been said where the defendant used a deadly weapon to effect his escape, it must be proven that the alleged weapon was used in such a manner as to come within the statutory definition of a deadly weapon. Garcia v. State, 537 S.W.2d 930, 934 (Tex.Cr.App.1976).
[3] As to the constituent elements of escape, see Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App. 1976); Henderson v. State, 600 S.W.2d 788 (Tex. Cr.App.1979); Ex parte Walling, 605 S.W.2d 621 (Tex.Cr.App.1980).
[4] Appellant's first ground of error states "the indictment is defective as the indictment does not state who was threatened with bodily injury while the Defendant was escaping." The appellant then argues thereunder that the court erred in overruling his motion to quash. The overruled motion to quash or set aside the indictment was much broader than the ground of error. It sought the identity of all against whom the alleged deadly weapon had been "directed." The ground of error claimed the indictment defective because it did not state who was threatened with bodily injury. It is well settled that where the objection made in the trial court is not the same as that urged on appeal the complaint is not preserved for review. Carrillo v. State, 591 S.W.2d 876, 892 (Tex.Cr.App.1979); McIlveen v. State, 559 S.W.2d 815, 822 (Tex.Cr.App.1977); Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). The Court of Appeals took no notice of the difference between the motion to quash and the ground of error on appeal. That court held that the indictment should have stated the identity of the victim of the bodily injury suffered during the alleged escape offense, and such identity was properly sought by the motion to quash.
[5] An indictment is sufficiently certain if all the ingredients of the offense be as amply set out as it is necessary to prove them. Facts and incidents which do not constitute a necessary part of the offense need not be stated for the purpose of distinguishing it, but they may be proved by the defendant, so as to fix its identity, and thereby protect himself from a second prosecution. Horan v. State, 24 Tex. 161 (1859).
| {
"pile_set_name": "FreeLaw"
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/15/2020 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
Millard R. Seldin, individually and as Trustee of the
Millard R. Seldin Revocable Trust, dated October 9,
1993, et al., appellants and cross-appellees,
and Scott A. Seldin, individually and as
Trustee of the Seldin 2002 Irrevocable Trust,
dated December 31, 2002, appellant,
cross-appellant, and cross-appellee, v.
Estate of Stanley C. Silverman et al.,
appellees, cross-appellants,
and cross-appellees.
Theodore M. Seldin, individually and as Trustee of
the Amended and Restated Theodore M. Seldin
Revocable Trust, dated May 28, 2008, et al.,
appellees, cross-appellants, and cross-appellees,
v. Millard R. Seldin, individually and as
Trustee of the Millard R. Seldin Revocable
Trust, dated October 9, 1993, et al., appellants and
cross-appellees, and Scott A. Seldin, individually
and as Trustee of the Seldin 2002 Irrevocable
Trust, dated December 31, 2002, appellant,
cross-appellant, and cross-appellee.
___ N.W.2d ___
Filed March 6, 2020. Nos. S-19-310, S-19-311.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Judgments: Arbitration and Award: Federal Acts: Appeal and
Error. In reviewing a decision to vacate, modify, or confirm an arbi-
tration award under the Federal Arbitration Act, an appellate court is
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SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
obligated to reach a conclusion independent of the trial court’s ruling as
to questions of law. However, the trial court’s factual findings will not
be set aside on appeal unless clearly erroneous.
3. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision
awarding or denying attorney fees will be upheld absent an abuse of
discretion.
4. ____: ____. When an attorney fee is authorized, the amount of the fee
is addressed to the discretion of the trial court, whose ruling will not be
disturbed on appeal in the absence of an abuse of discretion.
5. Pleadings: Judgments: Appeal and Error. A motion to alter or amend
a judgment is addressed to the discretion of the trial court, whose deci-
sion will be upheld in the absence of an abuse of that discretion.
6. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
7. Arbitration and Award: Federal Acts: Contracts. Arbitration in
Nebraska is governed by the Federal Arbitration Act if it arises from
a contract involving interstate commerce; otherwise, it is governed by
Nebraska’s Uniform Arbitration Act.
8. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the power and duty of an appellate court to
determine whether it has jurisdiction over the matter before it.
9. Arbitration and Award: Federal Acts: Jurisdiction: Notice. The
Federal Arbitration Act’s notice requirements are jurisdictional, and fail-
ure to strictly comply deprives the district court of authority under the
Federal Arbitration Act to vacate the arbitration award.
10. Arbitration and Award: Federal Acts: Notice. The Federal Arbitration
Act’s notice requirements are satisfied if the notice provided complies
with Nebraska’s statutory notice requirements.
11. Arbitration and Award: Federal Acts: Legislature. The Federal
Arbitration Act favors arbitration agreements and applies in both state
and federal courts. It also preempts conflicting state laws and fore-
closes state legislative attempts to undercut the enforceability of arbitra-
tion agreements.
12. Arbitration and Award: Motions to Vacate. When arbitration has
already occurred and a party seeks to vacate, modify, or confirm an
award, an extraordinary level of deference is given to the underlying
award itself.
13. Arbitration and Award: Federal Acts: Motions to Vacate. The Federal
Arbitration Act sets forth four grounds under which a court may vacate
an arbitration award, and in the absence of one of these grounds, the
award must be confirmed.
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SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
14. Arbitration and Award: Federal Acts: Motions to Vacate: Proof.
A party seeking to vacate an award for misconduct under 9 U.S.C.
§ 10(a)(3) (2018) of the Federal Arbitration Act must show that he or
she was deprived of a fair hearing.
15. Arbitration and Award: Federal Acts. Under 9 U.S.C. § 10(a)(2)
(2018) of the Federal Arbitration Act, evident partiality exists where
the nondisclosure at issue objectively demonstrates such a degree of
partiality that a reasonable person could assume that the arbitrator had
improper motives.
16. Arbitration and Award: Federal Acts: Motions to Vacate. Under
the Federal Arbitration Act, courts lack authority to vacate or modify
arbitration awards on any grounds other than those specified in 9 U.S.C.
§§ 10 and 11 (2018) of the Federal Arbitration Act.
17. Arbitration and Award: Federal Acts: Motions to Vacate: Public
Policy. Under the Federal Arbitration Act, a court is not authorized to
vacate an arbitration award based on public policy grounds because
public policy is not one of the exclusive statutory grounds set forth in 9
U.S.C. § 10 (2018) of the Federal Arbitration Act.
18. Arbitration and Award: Federal Acts: Contracts: Proof. Pursuant
to 9 U.S.C. § 10(a)(4) (2018) of the Federal Arbitration Act, a court
is authorized to set aside an arbitration award where the arbitrator
exceeded his or her powers. However, it is not enough to show that the
arbitrator committed an error—or even a serious error. The analysis is
whether the arbitrator (even arguably) interpreted the parties’ contract,
not whether he or she got its meaning right or wrong.
19. Attorney Fees. Attorney fees shall be awarded against a party who
alleged a claim or defense that the court determined was frivolous, inter-
posed any part of the action solely for delay or harassment, or unneces-
sarily expanded the proceeding by other improper conduct.
20. Actions: Attorney Fees: Words and Phrases. A frivolous action is one
in which a litigant asserts a legal position wholly without merit; that is,
the position is without rational argument based on law and evidence to
support the litigant’s position. The term frivolous connotes an improper
motive or legal position so wholly without merit as to be ridiculous.
21. Actions. Any doubt about whether a legal position is frivolous or taken
in bad faith should be resolved in favor of the one whose legal position
is in question.
22. Appeal and Error. An appeal or error proceeding, properly perfected,
deprives the trial court of any power to amend or modify the record as
to matters of substance.
23. Arbitration and Award: Federal Acts: Contracts. Under the Federal
Arbitration Act, arbitration is a matter of contract, and courts must
enforce arbitration contracts according to their terms.
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SELDIN v. ESTATE OF SILVERMAN
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24. Arbitration and Award. An evident material mistake is an error that is
apparent on the face of the record and would have been corrected had
the arbitrator known at the time.
25. Attorney Fees: Appeal and Error. Ordinarily, an improper calcula-
tion of attorney fees would require a remand in order to reconfigure
the award. However, when the record is sufficiently developed that a
reviewing court can apply the law to the facts and calculate a fair and
reasonable fee without resorting to remand, that route is available to the
appellate court.
26. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
27. Judgments: Appeal and Error. Generally, under the acceptance of ben-
efits rule, an appellant may not voluntarily accept the benefits of part of
a judgment in the appellant’s favor and afterward prosecute an appeal or
error proceeding from the part that is against the appellant.
28. ____: ____. The acceptance of the benefits rule does not apply when
the appellant has conceded to be entitled to the thing he or she has
accepted and where the appeal relates only to an additional claim on his
or her part.
29. Judgments: Proof: Appeal and Error. In asserting that the accept
ance of benefits rule precludes an appeal, the burden is on the party
asserting the rule to demonstrate that the benefits of the judgment were
accepted.
Appeals from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed as modified.
Jason M. Bruno and Robert S. Sherrets, of Sherrets, Bruno
& Vogt, L.L.C., for appellants.
Bartholomew L. McLeay, of Kutak Rock, L.L.P., for appel-
lee Scott A. Seldin, individually.
Robert L. Lepp and Mathew T. Watson, of McGill, Gotsdiner,
Workman & Lepp, P.C., L.L.O., and Sean K. McElenney, of
Bryan, Cave, Leighton & Paisner, L.L.P., for Omaha Seldin
appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
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SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
Heavican, C.J.
I. INTRODUCTION
This is an appeal from a judgment of the district court for
Douglas County, confirming an arbitration award of $2,997,031
under the Federal Arbitration Act (FAA)1 and awarding attor-
ney fees as a sanction under Neb. Rev. Stat. § 25-824 (Reissue
2016).
II. BACKGROUND
These two cases arose out of an arbitration between family
members designated as the “Omaha Seldins” and the “Arizona
Seldins.” The term “Omaha Seldins” refers to the following
individuals, entities, and trusts: Theodore M. Seldin, indi-
vidually and in his capacity as trustee of the Amended and
Restated Theodore M. Seldin Revocable Trust, dated May
28, 2008; Howard Scott Silverman as trustee of the Amended
and Restated Stanley C. Silverman Revocable Trust, dated
August 26, 2006; Silverman Holdings, LLC, a Nebraska lim-
ited liability company; SCS Family, LLC, a Nebraska limited
liability company; TMS & SNS Family, LLC, a Nebraska
limited liability company; Sarah N. Seldin and Irving B.
Epstein, as trustees of the Theodore M. Seldin and Sarah N.
Seldin Children’s Trust, dated January 1, 1995; Uri Ratner as
trustee of the Stanley C. Silverman and Norma R. Silverman
Irrevocable Trust Agreement (2008), dated April 10, 2008;
John W. Hancock, Irving B. Epstein, and Randall R. Lenhoff
as trustees of the Theodore M. Seldin and Sarah N. Seldin
Irrevocable Trust Agreement (2008), dated May 12, 2008.
The term “Arizona Seldins” refers to the following individ
uals, entities, and trusts: Millard R. Seldin, individually and
as trustee of the Millard R. Seldin Revocable Trust, dated
October 9, 1993; Scott A. Seldin, individually and as trustee
of the Seldin 2002 Irrevocable Trust, dated December 13,
2002; Seldin Real Estate, Inc., an Arizona corporation; Kent
Circle Investments, LLC, an Arizona limited liability company;
1
9 U.S.C. §§ 1 through 16 (2018).
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and Belmont Investments, LLC, an Arizona limited liabil-
ity company.
For a period of more than 50 years, the parties held joint
ownership interests as the Seldin Company in numerous enti-
ties located in the Omaha, Nebraska, area. The three princi-
pals of the Seldin Company were Millard; Millard’s younger
brother, Theodore; and Millard’s brother-in-law, Stanley C.
Silverman. The Seldin Company’s principal place of busi-
ness was Omaha. However, in 1987, Millard began relocating
the business operations from Omaha to Scottsdale, Arizona.
Theodore and Stanley co-owned the company, and they agreed
to manage the jointly owned properties through management
agreements.
In 2007, the Arizona Seldins (specifically Millard and
Millard’s son, Scott) began to question how Theodore and
Stanley were managing the jointly owned properties. In 2010,
the Arizona Seldins terminated the management agreements
and the parties entered into an agreement to separate their
joint interests in real estate assets through a bidding process.
The “Separation Agreement” included a provision whereby the
parties agreed to resolve all “Ancillary Claims” exclusively
through binding arbitration before arbitrator Stefan Tucker
with the Venable, LLP, law firm in Washington, D.C. In case
of Tucker’s inability to serve as arbitrator, the agreement
named a Venable partner as his successor. If both Tucker and
the successor were unable to serve as arbitrator, the agreement
provided that Venable’s managing partner was responsible for
identifying a substitute successor. The agreement also included
provisions defining the scope of arbitration, as well as a provi-
sion that the “Commercial Division Rules” of the American
Arbitration Association (AAA) would govern.
After the bidding process was completed, the parties began
arbitration before Tucker in October 2011. While the arbitra-
tion was ongoing, the Arizona Seldins filed three lawsuits in
the district court for Douglas County regarding their claims or,
alternatively, seeking to remove Tucker as arbitrator. The dis-
trict court dismissed the lawsuits and compelled the Arizona
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SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
Seldins back to arbitration after finding the FAA governed the
arbitration provision in the agreement. The Arizona Seldins
then filed a demand with the AAA, seeking to disqualify
Tucker as the arbitrator. The AAA denied the request; how-
ever, Tucker subsequently resigned and neither the succes-
sor arbitrator nor Venable was willing to participate in the
arbitration. The parties agreed to select an arbitrator through
the AAA, and Eugene R. Commander (hereinafter arbitrator)
was appointed.
Arbitration resumed in October 2013. Due to the number
of claims, each involving several independent causes of action
and affirmative defenses, the arbitrator proposed bifurcating
each claim to address liability and damage claims in separate
hearings when necessary. The parties agreed to the proposal,
and a schedule of hearings was adopted.
After extensive discovery was conducted, 11 evidentiary
hearings took place over a span of 14 months. Pursuant to
the separation agreement, the hearings took place in Omaha.
During the 53 days of hearings, 58 fact and expert witnesses
testified and 1,985 exhibits were admitted into evidence. As
permitted by the AAA’s rules,2 the arbitrator issued 12 separate
interim awards at the end of hearings in which determinations
of liability or damages had been made. The parties agreed that
these interim awards were not considered final awards and that
a final award would be issued after the arbitration had closed.
The parties also agreed that the entities and individuals that
made up each of the two parties were jointly and severally
liable for any award issued by the arbitrator.
At some point during the arbitration proceedings, the Arizona
Seldins asserted that the Omaha Seldins’ lack of tender of one
of its assets, Sky Financial Securities, LLC (Sky Financial),
was a defense to damages under the Arizona Securities Act.
Sky Financial is an Arizona limited liability company, cre-
ated as part of a plan to acquire and operate a chain of pizza
2
American Arbitration Association, Commercial Arbitration Rules and
Mediation Procedures R-37 at 24 (Oct. 1, 2013).
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restaurants in numerous states. In response, the Omaha Seldins
requested that the arbitrator take possession of Sky Financial
as a form of interpleader so as to permit the award of the asset
to the appropriate party after a determination was made. The
Arizona Seldins did not object to the procedure, and when
asked whether the assignment as a form of interpleader was
acceptable to both sides, the Arizona Seldins stated, “Yes.” The
Omaha Seldins then tendered Sky Financial to the arbitrator
by assignment.
In one of the interim awards, the arbitrator determined that
the Arizona Seldins had breached their fiduciary duties and
engaged in securities law violations relating to Sky Financial.
After finding that none of the affirmative defenses raised by the
Arizona Seldins were meritorious, the arbitrator awarded the
Omaha Seldins $1,962,528 in damages for their lost corporate
opportunities claims, as well as an additional $3,135,681 in
recessionary damages for the securities violation claims.
On April 12, 2017, the arbitration was officially closed.
On April 27, the arbitrator issued a final net award in favor
of the Omaha Seldins and against the Arizona Seldins in the
amount of $2,997,031, plus postaward simple interest. The
final award incorporated each of the prior interim awards
issued and found the Arizona Seldins jointly and severally
liable for the entire amount.
On May 23, 2017, the Omaha Seldins filed a motion to con-
firm the final award in district court. Opposing confirmation,
the Arizona Seldins filed a motion seeking to modify, correct,
and/or vacate the award. The Arizona Seldins argued, summa-
rized, that the arbitrator (1) engaged in misbehavior regarding
assignment of the Sky Financial asset, and thus the Omaha
Seldins lacked standing after the assignment; (2) failed to
provide a reasoned award on three of the Arizona Seldins’ key
affirmative defenses; (3) exceeded his power in awarding legal
fees and expenses to the Omaha Seldins, because the separa-
tion agreement precluded the award of attorney fees; and (4)
materially miscalculated the amount of prejudgment interest by
applying the incorrect interest rate or, alternatively, exceeded
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his power in awarding damages that included the calculated
amount of prejudgment interest.
Scott, one of the Arizona Seldins, sought further and sepa-
rate relief. Scott argued that with regard to the Sky Financial
claims, the arbitrator made an “evident material mistake in
the description of ‘Respondents’” and made an award on mat-
ters not submitted to him. Scott alternatively argued that the
arbitrator exceeded his power or imperfectly executed it, by
issuing an award of liability against Scott on those claims. In
addition, Scott filed multiple applications seeking to vacate,
confirm, and/or modify some of the interim awards in com-
panion cases CI 16-7509, CI 16-8394, CI 17-506, CI 17-651,
and CI 17-3637. The district court held that the interim
awards were nonfinal arbitration orders and dismissed the
applications.
On May 3, 2018, the district court issued an order sustain-
ing the Omaha Seldins’ motion to confirm the arbitration
award and overruling the Arizona Seldins’ motion to vacate the
award. The district court also awarded the Omaha Seldins
an amount equal to the attorneys’ fees and costs [the
Omaha Seldins] incurred in resisting [the Arizona
Seldins’] application seeking vacation or modification
of the Final Award and in seeking dismissal of the vari-
ous applications (Case Nos. CI 16-7509; CI 16-8394;
CI 17-506; CI 17-651; and CI 17-3637) . . . Scott . . . filed
seeking to modify, vacate, or confirm the Arbitrator’s
Interim Awards [under Neb. Rev. Stat. “§ 25-834”].
The district court had mistakenly referred to the statute autho-
rizing the sanction as Neb. Rev. Stat. § 25-834 (Reissue 1995),
instead of § 25-824.
On July 30, 2018, the Omaha Seldins offered into evi-
dence affidavits with attached fee statements from two law
firms, demonstrating the amount of fees incurred on behalf of
the Omaha Seldins in resisting the Arizona Seldins’ motion
to vacate and in seeking dismissal of Scott’s interim award
applications. The affidavits established that the law firm of
McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O. (McGill),
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had incurred $131,184.45 in fees and that the law firm of
Bryan Cave Leighton Paisner LLP (Bryan Cave) had incurred
$211,676.50 in fees, both on behalf of the Omaha Seldins. The
exhibit containing the McGill firm’s statement of fees had been
redacted for privilege purposes. At a subsequent hearing, the
Omaha Seldins offered an unredacted version of the McGill
firm’s fee statement, which the court received into evidence
under seal.
On February 28, 2019, the district court issued its order
denying the Arizona Seldins’ and Scott’s motions to alter or
amend. In the same order, the district court awarded the Omaha
Seldins attorney fees in the amount of $131,184.45.
On June 3, 2019, the Omaha Seldins filed a motion for
order nunc pro tunc, requesting that the district court modify
the amount of attorney fees to include Bryan Cave’s fees of
$211,676.50, for a total award of $342,860.95. After a hear-
ing on the motion, in a written order dated August 26, 2019,
the district court denied the Omaha Seldins’ motion for order
nunc pro tunc. In its order, the district court stated that it had
“clearly intended to award attorney fees to [the Omaha Seldins]
in an amount, as stated in the Court’s Order of February 28,
2019, equal to the attorney fees and costs incurred,” but denied
the motion after concluding that “[a]n Order Nunc Pro Tunc
[could not] be used to enlarge the judgment or substantially
amend[] the judgment even though said judgment was not the
order intended.”
On May 11, 2018, Scott filed a motion to alter or amend
the district court’s May 3 order. Scott argued that the award of
attorney fees and costs was beyond the amount permitted as
damages and that the arbitrator’s award of attorney fees was
improper. The motion further asserted that the order had refer-
enced § 25-834 as authorizing the sanction against the Arizona
Seldins, but that § 25-834 is unrelated to an award of attorney
fees and had been repealed by the Legislature in 2002.
The Arizona Seldins also filed a motion to alter or amend
the order. The motion incorporated Scott’s arguments and
additionally asserted that the district court failed to specifically
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address some of the Arizona Seldins’ prior arguments, includ-
ing whether the final award violated the automatic bankruptcy
stay, whether the final award violated Nebraska’s public policy
and resulted in a massive windfall to the Omaha Seldins, and
whether the arbitrator engaged in evident partiality.
On February 28, 2019, the district court issued a 13-page
order detailing its findings and overruling both motions to
alter or amend the May 3, 2018, order. The February 28,
2019, order included a nunc pro tunc modification, substituting
§ 25-824 for the references to § 25-834 in the previous order.
When discussing the sanction ordered against the Arizona
Seldins, the district court noted that its May 3, 2018, order had
“repeatedly identified the absence of rational factual or legal
basis to support [the Arizona Seldins’] theories of modifying
or vacating the Final Award.” The district court articulated
that “[w]hat should have been a fairly simple procedure, [the
Arizona Seldins] literally turned into a re-litigation of the
Arbitration itself.”
The Arizona Seldins appeal the district court’s order con-
firming the award and the district court’s order of sanctions
under § 25-824. Scott, individually, filed a cross-appeal assert-
ing that the final award against him should be modified, cor-
rected, or vacated by law and that the district court abused its
discretion in imposing sanctions and overruling his motion to
alter or amend. The Omaha Seldins also filed a cross-appeal,
challenging the amount of attorney fees and costs ordered by
the district court and the district court’s denial of the Omaha
Seldins’ motion for order nunc pro tunc. The Arizona Seldins
subsequently filed a motion to dismiss the Omaha Seldins’
cross-appeal, claiming the Omaha Seldins’ registration of the
district court’s judgment with an Arizona state court constituted
an acceptance of the benefits of the judgment and, thus, pre-
cluded them from appealing the judgment.
We granted the parties’ petition to bypass the Nebraska
Court of Appeals, and the two cases, S-19-0310 and S-19-0311,
have been consolidated for purposes of oral argument and
disposition.
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III. ASSIGNMENTS OF ERROR
The Arizona Seldins’ assignments, renumbered and restated,
are that the district court erred in (1) failing to vacate the Sky
Financial award because the award was secured through mis-
behavior by the arbitrator; (2) failing to vacate the final award
because the Sky Financial award violates Nebraska public pol-
icy by creating a massive windfall for the Omaha Seldins; (3)
confirming the arbitrator’s award of attorney fees because the
award exceeded the scope of the separation agreement, which
expressly prohibited an award of attorney fees; (4) awarding
sanctions under § 25-824; and (5) excluding evidence of the
Omaha Seldins’ acting contrary to the separation agreement
and the award by currently seeking additional damages in other
litigation for the same Sky Financial investment.
Scott’s assignments of error on cross-appeal, summarized,
are that the district court erred in (1) failing to modify or cor-
rect an evident material mistake in the description of respond
ents in the final award relating to him; (2) failing to vacate the
final award on the ground of arbitrator misbehavior; (3) fail-
ing to vacate the final award on the ground that the arbitrator
exceeded his authority in regard to the claims bar date; and (4)
imposing sanctions pursuant to § 25-824 and denying Scott’s
motion to alter or amend the district court’s order regarding
the sanctions.
The Omaha Seldins assign on cross-appeal that the district
court erred in (1) denying their motion for order nunc pro
tunc and (2) failing to award the Omaha Seldins their reason-
able attorney fees and costs incurred. While not specifically
assigned as error, the Omaha Seldins also assert that the
Arizona Seldins’ public policy argument is time barred.
IV. STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.3
3
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
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[2] In reviewing a decision to vacate, modify, or confirm an
arbitration award under the FAA, an appellate court is obligated
to reach a conclusion independent of the trial court’s ruling as
to questions of law.4 However, the trial court’s factual findings
will not be set aside on appeal unless clearly erroneous.5
[3,4] On appeal, a trial court’s decision awarding or deny-
ing attorney fees will be upheld absent an abuse of discretion.6
When an attorney fee is authorized, the amount of the fee is
addressed to the discretion of the trial court, whose ruling
will not be disturbed on appeal in the absence of an abuse of
discretion.7
[5] A motion to alter or amend a judgment is addressed to
the discretion of the trial court, whose decision will be upheld
in the absence of an abuse of that discretion.8
[6] A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.9
V. ANALYSIS
1. Appeal Is Governed by FAA
[7] Prior to addressing the arbitration issues raised by the
parties on appeal, we must determine which law governs—the
Uniform Arbitration Act (UAA)10 or the FAA. Arbitration in
Nebraska is governed by the FAA if it arises from a contract
involving interstate commerce; otherwise, it is governed by the
4
Ronald J. Palagi, P.C. v. Prospect Funding Holdings, 302 Neb. 769, 925
N.W.2d 334 (2019).
5
Id.
6
White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013).
7
Rapp v. Rapp, 252 Neb. 341, 562 N.W.2d 359 (1997).
8
Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
9
Id.
10
See Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016 & Cum. Supp.
2018).
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UAA.11 The district court determined that the issues presented
in this case were governed by the FAA. We agree. Arbitration
that arises from a contract involving interstate commerce is
governed by the FAA.12 Because this case arose from a com-
mercial dispute involving properties and companies located in
multiple states, the arbitration agreement clearly involves inter-
state commerce and thus is governed by the FAA.
2. Motion to Vacate Was Timely
[8] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it.13 The
Omaha Seldins claim the Arizona Seldins are precluded from
seeking modification or vacatur of the final award on public
policy grounds because this argument was not raised within 3
months of the final order being issued as required by § 12 of
the FAA.
[9] Section 12 of the FAA sets forth the specific service
requirements for motions to vacate, modify, or correct an
award and requires notice of an application seeking judicial
vacatur to “be served upon the adverse party or his attorney
within three months after the award is filed or delivered.” This
court has held that these notice requirements are jurisdictional
and that failure to strictly comply deprives the district court
of authority under the FAA to vacate the arbitration award.14
And, where the district court lacks jurisdiction, this court lacks
jurisdiction.15
The relevant portion of § 12 provides:
Notice of a motion to vacate, modify, or correct an
award must be served upon the adverse party or his
11
Garlock v. 3DS Properties, 303 Neb. 521, 930 N.W.2d 503 (2019).
12
Aramark Uniform & Career Apparel v. Hunan, Inc., 276 Neb. 700, 757
N.W.2d 205 (2008).
13
State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).
14
See Karo v. Nau Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017).
15
State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999).
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attorney within three months after the award is filed or
delivered. If the adverse party is a resident of the district
within which the award was made, such service shall be
made upon the adverse party or his attorney as prescribed
by law for service of notice of motion in an action in
the same court. If the adverse party shall be a nonresi-
dent then the notice of the application shall be served
by the marshal of any district within which the adverse
party may be found in like manner as other process of
the court.
[10] Thus, the FAA’s notice requirements are satisfied if
the notice provided complies with Nebraska’s statutory notice
requirements. Neb. Rev. Stat. § 25-910 (Reissue 2016) requires
that the notice be in writing and provides that it
shall state (1) the names of the parties to the action or
proceeding in which it is to be made, (2) the name of
the court or judge before whom it is to be made, (3) the
place where and the day on which it will be heard, (4)
the nature and terms of the order or orders to be applied
for, and (5) if affidavits are to be used on the hearing, the
notice shall state that fact. It shall be served a reasonable
time before the hearing.
The record reflects that the final arbitration award was
issued on April 27, 2017. The Arizona Seldins moved to mod-
ify, correct, or vacate the award on July 25. On the same day,
the Arizona Seldins provided the other parties with notice of
the motion via U.S. mail and electronic mail. While the motion
did not specifically assert the Arizona Seldins’ public policy
argument, the notice included each of the five requirements
set forth in § 25-910 and was provided within 3 months of the
final order being issued. The Arizona Seldins’ notice complied
with Nebraska’s statutory notice requirements; thus, the notice
requirements under § 12 of the FAA were satisfied. The public
policy argument was timely raised, and therefore, this court has
jurisdiction over the claim.
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3. Claims by Arizona Seldins
and Scott
(a) Arbitrator Misbehavior
In their first assignment of error, the Arizona Seldins claim
the district court erred in failing to vacate the Sky Financial
award because the award was secured through misbehavior by
the arbitrator. On cross-appeal, Scott also asserts that the arbi-
trator’s acceptance of Sky Financial constituted misconduct.
Scott further asserts that the Arizona Seldins could not have
accepted or consented to the interpleader because the transfer
abrogated the Omaha Seldins’ interest in Sky Financial and
thus the interpleader never existed. Scott also claims that the
interpleader procedure was not disclosed or explained and that
he “should not be bound by a secret interpleader procedure of
which he was never informed since he had no need for concern
regarding any securities claim at the time the purported inter-
pleader was first proposed for that purpose.”16
[11,12] Congress enacted the FAA to provide for “expe-
dited judicial review to confirm, vacate, or modify arbitration
awards.”17 The FAA favors arbitration agreements and applies
in both state and federal courts.18 It also preempts conflict-
ing state laws and “‘foreclose[s] state legislative attempts to
undercut the enforceability of arbitration agreements.’”19 When
arbitration has already occurred and a party seeks to vacate,
modify, or confirm an award, “‘“an extraordinary level of
deference” [is given] to the underlying award itself.’”20 The
U.S. Supreme Court has instructed that under the FAA, a court
16
Brief for appellee Scott on cross-appeal at 24.
17
Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U.S. 576, 578, 128 S.
Ct. 1396, 170 L. Ed. 2d 254 (2008).
18
Preston v. Ferrer, 552 U.S. 346, 128 S. Ct. 978, 169 L. Ed. 2d 917 (2008).
19
Id., 552 U.S. at 353 (quoting Southland Corp. v. Keating, 465 U.S. 1, 104
S. Ct. 852, 79 L. Ed. 2d 1 (1984)).
20
SBC Advanced v. Communications Workers of America, 794 F.3d 1020,
1027 (8th Cir. 2015).
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may vacate an arbitrator’s decision “‘only in very unusual
circumstances.’”21
[13] The FAA sets forth four grounds under which a court
may vacate an arbitration award, and in the absence of one of
these grounds, the award must be confirmed.22 These grounds
are as follows:
(1) where the award was procured by corruption, fraud,
or undue means;
(2) where there was evident partiality or corruption in
the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in
refusing to postpone the hearing, upon sufficient cause
shown, or in refusing to hear evidence pertinent and mate-
rial to the controversy; or of any other misbehavior by
which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or
so imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was not
made.23
Both the Arizona Seldins and Scott claim the arbitra-
tor engaged in misbehavior by accepting ownership of Sky
Financial. We reject this claim because the Arizona Seldins
expressly agreed to the transfer of Sky Financial during the
arbitration proceedings, and there is no evidence that the arbi-
trator engaged in misconduct by accepting the transfer.
The Omaha Seldins attempted to “tender” Sky Financial as
a form of interpleader after the Arizona Seldins asserted that a
lack of tender is a defense under the Arizona Securities Act in
regard to damages. The Omaha Seldins transferred ownership
of Sky Financial to the arbitrator “‘for purposes of effectuat-
ing the relief to be awarded.’” The relief contemplated was the
21
Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 568, 133 S. Ct. 2064,
186 L. Ed. 2d 113 (2013).
22
Hall Street Associates, L. L. C., supra note 17.
23
9 U.S.C. § 10(a).
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award of the asset to the appropriate party after a determination
had been made.
At the time the assignment was made, the following collo-
quy occurred:
ARBITRATOR: Well, I’m in uncharted waters here.
I guess my first question is why would the assignment
come to me?
[Counsel for the Omaha Seldins]: It’s largely in the
sense of an interpleader. Is this to be — I mean, it empha-
sizes the point which is the impossibility, to whom do
we tender, do we tender to Millard, do we tender to Sky
Financial, to whomever it is that it is deemed you think,
to the extent it isn’t impossible and excused by impos-
sibility, you’re welcome to determine to whomever it
should be tendered.
....
ARBITRATOR: Well, the only way I know how to deal
with this right now is to consider this an act of interplead-
ing these interests to me. I’m not an officer of the court,
but I do have jurisdiction over this matter, so for the time
being, at least, I’ll accept them. With that understanding
in mind. Is that acceptable to both sides?
[Counsel for the Arizona Seldins]: Yes.
[14] “A party seeking to vacate an award for misconduct
under § 10(a)(3) must show that he [or she] was ‘deprived of a
fair hearing.’”24 When a party “‘who contests the merits of an
arbitration award in court fails to first present the challenges on
the merits to the arbitrators themselves, review is compressed
still further, to nil.’”25 Here, the district court noted that the
Arizona Seldins appeared to have consented to the arbitra-
tor’s acceptance of the assignment as a form of interpleader.
24
Brown v. Brown-Thill, 762 F.3d 814, 820 (8th Cir. 2014) (quoting Grahams
Service Inc. v. Teamsters Local 975, 700 F.2d 420 (8th Cir. 1982)).
25
Medicine Shoppe Intern. v. Turner Investments, 614 F.3d 485, 489 (8th Cir.
2010) (quoting Intern. Broth. v. Hope Elec. Corp., 380 F.3d 1084 (8th Cir.
2004)).
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We agree. Not only did the Arizona Seldins not object to the
assignment at the time it was made, but they agreed that the
transfer as an act of interpleading was acceptable after the
purpose of the procedure was explained. By consenting to
the assignment, the Arizona Seldins waived the argument that
the arbitrator’s acceptance of the transfer constituted miscon
duct. And, the record clearly refutes Scott’s claim that the
intended interpleader was not disclosed or explained.
[15] Furthermore, while the Arizona Seldins’ attempt to
invoke the grounds set forth in § 10(a)(3) of the FAA by using
the term “misconduct,” their argument focuses only on the
arbitrator’s possible partiality as the purported owner of Sky
Financial. Under § 10(a)(2), a court may vacate an award for
the arbitrator’s “evident partiality.” However, this is a “‘heavy
burden’”26 because the standard “‘is not made out by the
mere appearance of bias.’”27 “Evident partiality exists where
the non-disclosure at issue ‘objectively demonstrate[s] such a
degree of partiality that a reasonable person could assume that
the arbitrator had improper motives.’”28
The Arizona Seldins assert that the arbitrator’s taking actual
possession of Sky Financial without first securing mutual con-
sent of the parties in writing and making it part of the record
disqualified him as an interested party under Neb. Rev. Stat.
§ 24-739 (Reissue 2016). Section 24-739 provides, in relevant
part, that a judge shall be disqualified in any case in which he
or she is a party or interested except by mutual consent of the
parties, which mutual consent is in writing and made part of
the record.
The Arizona Seldins contend that § 24-739 applies to arbitra-
tors as well as judges per this court’s instruction that “‘judges
26
Williams v. National Football League, 582 F.3d 863, 885 (8th Cir. 2009)
(quoting Choice Hotels Intern. v. SM Property Management, 519 F.3d 200
(4th Cir. 2008)).
27
Id.
28
Id. (quoting Dow Corning Corp. v. Safety National Cas. Corp., 335 F.3d
742 (8th Cir. 2003)).
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and arbitrators are subject to the same ethical standards.’”29
However, this court has expressly rejected a “judicial ethics”
standard when analyzing the FAA’s requirement of “evident
partiality.” In Dowd v. First Omaha Sec. Corp.,30 we held that
“‘“evident partiality” within the meaning of 9 U.S.C. § 10 will
be found where a reasonable person would have to conclude
that an arbitrator was partial to one party to the arbitration.’”
Here, the record contains no evidence that the arbitrator
engaged in misconduct or partiality by accepting the assignment
of Sky Financial. Rule R-37(a) of the AAA rules, which was
incorporated into the parties’ separation agreement, provides
that “[t]he arbitrator may take whatever interim measures he or
she deems necessary, including injunctive relief and measures
for the protection or conservation of property and disposition
of perishable goods.” Moreover, the Arizona Seldins’ argument
that the arbitrator’s acceptance of Sky Financial constituted
misconduct is confuted by their express acceptance of the pro-
cedure. This argument is without merit.
(b) Public Policy
In their second assignment of error, the Arizona Seldins
assert that the district court erred in failing to vacate the final
award because the Sky Financial award violates Nebraska
public policy by creating a massive windfall for the Omaha
Seldins. The Arizona Seldins argue that the Omaha Seldins
profited substantially from Sky Financial and that the award
of damages results in a double recovery and windfall for the
Omaha Seldins in violation of public policy. The Arizona
Seldins further assert that a court may refuse to enforce an
arbitration award on the ground that it is contrary to public
29
See brief for appellants at 24 (quoting Barnett v. City of Scottsbluff, 268
Neb. 555, 684 N.W.2d 553 (2004)).
30
Dowd v. First Omaha Sec. Corp., 242 Neb. 347, 358, 495 N.W.2d 36, 43
(1993) (quoting Morelite Const. v. N.Y.C. Dist. Council Carpenters, 748
F.2d 79 (2d Cir. 1984)).
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policy. In making this assertion, the Arizona Seldins rely on
this court’s prior holding in State v. Henderson.31
In Henderson, a Nebraska State Patrol officer had been ter-
minated based on his membership in a Ku Klux Klan-affiliated
organization. An arbitrator determined that the State Patrol had
violated the officer’s constitutional rights because his affilia-
tion with the organization was not “‘just cause’” for termina-
tion.32 The arbitrator issued an award ordering the officer to be
reinstated.33 The district court vacated the award after conclud-
ing that the officer’s reinstatement violated Nebraska public
policy, and this court affirmed the judgment.34
Unlike the present case, Henderson was governed by
Nebraska’s UAA.35 However, this court found none of the
UAA’s statutory bases for vacating an award applied.36 Noting
that the applicable provisions in the UAA and the FAA were
similar, the majority, in a 4-to-2 decision, relied on three U.S.
Supreme Court cases applying the FAA when holding that an
arbitration award could be vacated on public policy grounds.37
The majority in Henderson held that a court may refuse
to enforce an arbitration award that is contrary to a public
policy when the policy is explicit, well defined, and domi-
nant. The majority concluded that Nebraska has “an explicit,
well-defined, and dominant public policy” that “the laws of
Nebraska should be enforced without racial or religious dis-
crimination” and that the arbitrator’s decision reinstating the
officer violated this public policy because the policy “incor-
porates, and depends upon, the public’s reasonable perception
31
State v. Henderson, 277 Neb. 240, 762 N.W.2d 1 (2009).
32
Id. at 242, 762 N.W.2d at 3.
33
Id.
34
Id.
35
See §§ 25-2601 to 25-2622.
36
Henderson, supra note 31.
37
Id.
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that the laws are being enforced without discrimination.”38 The
dissent argued that the U.S. Supreme Court’s narrow public
policy exception did not bar judicial enforcement of the award
and that the majority was doing precisely what the Supreme
Court had prohibited in Paperworkers v. Misco, Inc.39: engag-
ing in factfinding, which is the arbitrator’s function, not the
appellate court’s.40
[16] Prior to 2008, a circuit split existed on whether courts
could apply nonstatutory standards when reviewing arbitra-
tion awards under the FAA. Many courts had been relying on
language in the 1953 case of Wilko v. Swan,41 which indicated
courts could vacate an award made in “manifest disregard” of
the law. In Hall Street Associates, L. L. C. v. Mattel, Inc.,42
the U.S. Supreme Court resolved the split and held that under
the FAA, courts lack authority to vacate or modify arbitration
awards on any grounds other than those specified in §§ 10 and
11 of the FAA.43 The Court was explicit that
[o]n application for an order confirming the arbitration
award, the court “must grant” the order “unless the award
is vacated, modified, or corrected as prescribed in sec-
tions 10 and 11 of this title.” There is nothing malleable
about “must grant,” which unequivocally tells courts to
38
Id. at 263, 762 N.W.2d at 16-17.
39
See Paperworkers v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed.
2d 286 (1987).
40
Henderson, supra note 31 (Stephan J., dissenting). See, also, Misco, Inc.,
supra note 39, 484 U.S. at 44, 45 (criticizing federal Court of Appeals’
conclusion that machine operator had ever been or would be under
influence of marijuana while he was on job from fact that marijuana
was located in his car as “an exercise in factfinding” that “exceeds the
authority of a court asked to overturn an arbitration award”).
41
Wilko v. Swan, 346 U.S. 427, 436, 74 S. Ct. 182, 98 L. Ed 168 (1953).
42
Hall Street Associates, L. L. C., supra note 17.
43
See John M. Gradwohl, Arbitration: Interface of the Federal Arbitration
Act and Nebraska State Law, 43 Creighton L. Rev. 97 (2009).
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grant confirmation in all cases, except when one of the
“prescribed” exceptions applies.44
Pointedly, the Eighth Circuit Court of Appeals has explained
that prior to 2008, “a court could vacate arbitration awards
on grounds other than those listed in the FAA.”45 However,
“Hall Street, resolving a circuit split, held that ‘the text [of
the FAA] compels a reading of the §§ 10 and 11 categories as
exclusive.’”46
[17] Because the U.S. Supreme Court’s decision in Hall
Street Associates, L. L. C. abrogated public policy as grounds
for vacating an arbitration award under the FAA, we reject
the Arizona Seldins’ argument. We hold that under the FAA, a
court is not authorized to vacate an arbitration award based on
public policy grounds because public policy is not one of the
exclusive statutory grounds set forth in § 10 of the FAA. We
also clarify that Henderson was governed by the UAA–-not the
FAA–-and expressly disapprove of any language in Henderson
that could be construed as authorizing courts to vacate awards
on public policy grounds under the FAA.47
Because public policy is not a ground for vacating an arbi-
tration award under the FAA, we need not address the merits
of the Arizona Seldins’ argument that the purported windfall in
favor of the Omaha Seldins is contrary to public policy.
(c) Arbitrator’s Award of
Fees and Costs
In their third assignment of error, the Arizona Seldins argue
that the district court erred in confirming the arbitrator’s award
of attorney fees because the award exceeded the scope of the
separation agreement.
44
Hall Street Associates, L. L. C., supra note 17, 552 U.S. at 587 (quoting 9
U.S.C. § 9).
45
Medicine Shoppe Intern., supra note 25, 614 F.3d at 489.
46
Id.
47
Henderson, supra note 31.
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[18] Pursuant to § 10(a)(4) of the FAA, a court is authorized
to set aside an arbitration award where the arbitrator exceeded
his or her powers. However, “‘[i]t is not enough . . . to show
that the [arbitrator] committed an error—or even a serious
error.’”48 The analysis is “whether the arbitrator (even argu-
ably) interpreted the parties’ contract, not whether he got its
meaning right or wrong.”49 “Because the parties ‘bargained
for the arbitrator’s construction of their agreement,’ an arbitral
decision ‘even arguably construing or applying the contract’
must stand, regardless of a court’s view of its (de)merits.”50
In the final award, the arbitrator ordered the parties to pay
their own attorney fees, expenses, and costs arising from
the arbitration proceedings, “[e]xcept as specifically provided
in Supplemental Interim Award Claim 16,” which awarded
$1,001,051 in attorney fees and costs to the Omaha Seldins as
a partial measure of the damages caused by securities viola-
tions related to Sky Financial. The Arizona Seldins assert that
the award of attorney fees exceeded the scope of the separa-
tion agreement because the agreement expressly prohibited
such an award.
This assertion is based on a provision of the separation
agreement, which states:
In General: Except as otherwise provided in this
Agreement, each Party shall bear its own costs and
expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions con-
templated hereby. No party shall be required to pay to the
other Party any commissions, penalties, fees or expenses
arising out of or associated with any of the transactions
contemplated by this Agreement.
48
Oxford Health Plans LLC, supra note 21, 569 U.S. at 569 (quoting Stolt-
Nielsen S. A. v. AnimalFeeds Int’l. Corp., 559 U.S. 662, 130 S. Ct. 1758,
176 L. Ed. 2d 605 (2010)).
49
Oxford Health Plans LLC, supra note 21, 569 U.S. at 569.
50
Id., 569 U.S. at 569 (quoting Eastern Associated Coal Corp. v. Mine
Workers, 531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000)).
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In “Supplemental Interim Award Claim 16,” the arbitrator
interpreted the parties’ agreement regarding the award of fees
and costs and found that the agreement did not preclude an
award of fees and costs incurred in prosecuting the lost corpo-
rate opportunity and securities violations claims related to Sky
Financial. The arbitrator concluded that the agreement’s “trans-
actions contemplated” language referred to the transactions and
process contemplated by the parties in separating their joint
ownership interests in the jointly owned properties and entities
and not ancillary claims.
The arbitrator’s conclusion was based, in part, on the loca-
tion of the provision within the separation agreement, and
on another provision which stated: “Cooperation. The Parties
acknowledge and agree that the transactions contemplated by
this Agreement are intended to permit the Omaha Seldins, on
the one hand, and the Arizona Seldins, on the other hand, to
separate their joint ownership of the Properties.” In addition,
the arbitrator found that the rules of the AAA, which the par-
ties had incorporated into the separation agreement, authorized
the award of attorney fees and costs under circumstances such
as those presented here.
We hold that the arbitrator did not exceed his authority
under the separation agreement by issuing the award of fees
and costs. In the parties’ separation agreement, the parties each
agreed to resolve their disputes relating to severing their jointly
owned properties through final and binding arbitration. By
entering into the agreement, the parties bargained for the arbi-
trator’s construction of that agreement. The arbitrator construed
the agreement as permitting the award of attorney fees for the
parties’ ancillary claims. The Sky Financial claim was an ancil-
lary claim, and thus, the arbitrator did not exceed his authority
in awarding costs and fees related to that claim. The Arizona
Seldins’ third assignment of error is without merit.
(d) Sanctions Under § 25-824
In their fourth assignment of error, the Arizona Seldins
argue that the district court erred in awarding sanctions against
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them under § 25-824. Scott individually asserts on cross-
appeal that the district court abused its discretion in impos-
ing sanctions against Scott for filing the various applica-
tions in CI 16-7509, CI 16-8394, CI 17-506, CI 17-651, and
CI 17-3637 and in overruling his motion to alter or amend the
district court’s order.
Section 25-824(2) provides that
in any civil action commenced or appealed in any court
of record in this state, the court shall award as part of its
judgment and in addition to any other costs otherwise
assessed reasonable attorney’s fees and court costs against
any attorney or party who has brought or defended a civil
action that alleges a claim or defense which a court deter-
mines is frivolous or made in bad faith.
[19-21] We have stated that attorney fees shall be awarded
against a party who alleged a claim or defense that the court
determined was frivolous, interposed any part of the action
solely for delay or harassment, or unnecessarily expanded the
proceeding by other improper conduct.51 A frivolous action is
one in which a litigant asserts a legal position wholly without
merit; that is, the position is without rational argument based
on law and evidence to support the litigant’s position.52 The
term “frivolous” connotes an improper motive or legal posi-
tion so wholly without merit as to be ridiculous.53 Any doubt
about whether a legal position is frivolous or taken in bad faith
should be resolved in favor of the one whose legal position is
in question.54
In seeking to modify or vacate the final award, the Arizona
Seldins asserted four arguments. As previously summarized,
these arguments were that the arbitrator (1) engaged in mis-
behavior relating to the assignment of the Sky Financial
51
Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019).
52
TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010).
53
Id.
54
Id.
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property, (2) failed to provide a reasoned award on three
affirmative defenses raised by the Arizona Seldins related to
the Sky Financial claims, (3) exceeded his power in award-
ing legal fees and expenses to the Omaha Seldins, and (4)
materially miscalculated the prejudgment interest when award-
ing damages.
In its May 3, 2018, order, the district court entered judgment
in favor of the Omaha Seldins and against the Arizona Seldins
under § 25-824. When evaluating the Arizona Seldins’ claim
that the arbitrator engaged in misbehavior, the district court
noted that the Arizona Seldins appeared to have consented to
the assignment of Sky Financial, they had presented no evi-
dence demonstrating the arbitrator had improper motives when
accepting the assignment of Sky Financial, and their argument
“conflicts with the facts and the law.”
With regard to the argument that the arbitrator had failed to
provide a reasoned award in relation to the Arizona Seldins’
affirmative defense involving the claims bar date, the district
court found this argument lacked merit and “mischaracterize[d]”
the significance of the relation-back doctrine under Fed. R.
Civ. P. 15. In doing so, the district court called attention to
the arbitrator’s written findings and awards relating to the Sky
Financial claim, which consisted of 60 pages and contained
multiple paragraphs explaining the arbitrator’s reasoning when
rejecting the defense.
The district court also rejected the argument that the arbitra-
tor exceeded his power when awarding legal fees and expenses.
Recognizing that the cases cited by the Arizona Seldins when
asserting this argument either did not support their argument
or were not relevant, the district court found the arbitrator
had correctly interpreted and applied the separation agreement
when awarding the fees and costs.
The district court characterized the Arizona Seldins’ argu-
ment that the arbitrator had materially miscalculated the pre-
judgment interest as “misleading” and “fundamentally mis-
placed.” Noting that allegations of an arbitrator’s legal error
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are not reviewable, the district court found that the Arizona
Seldins had failed to identify any “‘mathematical error’” in the
arbitrator’s calculations. The court recognized that in making
this assertion, the Arizona Seldins were attempting to chal-
lenge the merits of the final award by arguing that the arbitra-
tor had committed legal error.
Addressing Scott’s individual claims, the district court found
there was no legal basis for Scott’s challenge of the interim
awards as the parties had agreed that the arbitrator’s interim
awards were nonfinal. Further, each of the 12 interim awards
included the following statement: “The parties understand this
Interim Award is not a final appealable arbitration award, but
it will be part of the law of the case moving forward.” Still,
Scott proceeded to file lawsuits seeking to modify, vacate,
and/or confirm five of these awards. In addition to finding the
interim applications frivolous, the district court found Scott’s
argument that he should not be held jointly and severally liable
to be “misleading.”
Reviewing the record and arguments in this case, we agree
with the district court in that “[w]hat should have been a fairly
simple procedure, [the Arizona Seldins] literally turned into a
re-litigation of the Arbitration itself.” The district court issued
the § 25-824 sanction after repeatedly finding the absence of
rational factual or legal bases to support the Arizona Seldins’
theories of modifying or vacating the final award. We hold that
the district court did not abuse its discretion in awarding attor-
ney fees and costs under § 25-824.
We also reject Scott’s claim that the district court abused
its discretion in overruling his motion to alter or amend the
district court’s order and judgment. Scott argues that his argu-
ments were not ridiculous and that the applications regarding
the interim awards “were filed only in an ‘abundance of cau-
tion’ and sought an ‘immediate stay’ to minimize any action by
the parties or the district court.”55
55
Brief for appellee Scott on cross-appeal at 34.
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In support of his argument, Scott first cites In re Chevron
U.S.A., Inc.,56 in which the Texas Court of Appeals held that an
arbitrator’s interim awards were sufficiently final for purposes
of confirmation and vacation. The district court specifically
rejected this argument in its February 28, 2019, order. The
district court noted that In re Chevron U.S.A., Inc. lacked evi-
dence demonstrating that the parties or arbitration panel had
agreed or intended the interim decision to be nonfinal and non-
appealable. The district court also recognized that the Arizona
Seldins had “not cited to a case where an interim award that
both the parties and the Arbitrator intended to be non-final was
treated as a final, appealable arbitration award.”
Scott also cites American Intl. Specialty Lines Ins. Co. v.
Allied Capital Corp.57 However, that case is clearly distin-
guishable from the facts presented here as the parties had
specifically requested that the arbitration panel make a final
determination on one of the issues.
We hold that the district court did not abuse its discretion in
finding Scott’s interim applications to be frivolous and order-
ing sanctions accordingly.
(e) Evidence of Omaha Seldins’ Claims
in Arizona State Court
In their fifth assignment of error, the Arizona Seldins argue
that the district court erred in excluding evidence of the Omaha
Seldins’ acting contrary to the separation agreement and the
award by currently seeking additional damages in other litiga-
tion for the same Sky Financial investment.
[22] This court has held that “‘[a]n appeal or error proceed-
ing, properly perfected, deprives the trial court of any power
to amend or modify the record as to matters of substance[.]’”58
56
In re Chevron U.S.A., Inc., 419 S.W.3d 329 (Tex. App. 2010).
57
American Intl. Specialty Lines Ins. Co. v. Allied Capital Corp., 167 A.D.3d
142, 86 N.Y.S.3d 472 (2018).
58
Samardick of Grand Island-Hastings, Inc. v. B.D.C. Corp., 183 Neb. 229,
231, 159 N.W.2d 310, 313 (1968).
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An appeal is taken by filing a notice of appeal and depositing the
required docket fee with the clerk of the district court.59
The Arizona Seldins filed their notice of appeal in these
cases on March 27, 2019. On July 5, the Arizona Seldins filed
a motion in the district court seeking to supplement the bill of
exceptions and/or to reopen the record. The Arizona Seldins
claimed that after the arbitration award had been confirmed,
the Omaha Seldins filed a complaint in an Arizona state court
alleging the same or similar claims regarding Sky Financial
that had been arbitrated in these cases. The Arizona Seldins
sought to supplement the record with evidence of the newly
filed Arizona cases for purposes of this appeal. The district
court overruled the motion on the ground that perfection of
an appeal deprives the trial court of any power to amend or
modify the record as to matters of substance.
We hold that the district court did not err when overruling
the motion to supplement the record. Because the Arizona
Seldins had perfected their appeal prior to the filing of the
motion, the district court did not have jurisdiction to supple-
ment the record with evidence of the Omaha Seldins’ purported
filings. The Arizona Seldins’ fifth assignment of error is with-
out merit.
(f) Description of “Respondents”
Scott individually asserts on cross-appeal that the district
court erred in failing to modify or correct an evident material
mistake in the description of “Respondents” in the final award
relating to Scott. Scott argues that the parties agreed Scott had
not personally violated any securities laws and, therefore, he
cannot be jointly and severally liable on the Sky Financial
award.
In the Arizona Seldins’ motion to modify or vacate the
arbitration award, Scott individually asserted that the arbitra-
tor had made a material mistake in the final award relating to
the description of “Respondents.” In its May 3, 2019, order
59
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018).
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overruling the motion, the district court found the final award
had properly provided that Scott was jointly and severally
liable for all damages awarded. Classifying Scott’s argument
as misleading, the district court recognized that although the
parties agreed Scott had not violated any securities laws, he
usurped corporate opportunities relating to Sky Financial. The
district court also noted that Scott’s liability was not based
on common-law principles of joint and several liability, but
on his contractual liability as set forth in the parties’ separa-
tion agreement.
Scott attempts to invoke § 11(a) of the FAA, which permits
a court to modify or correct an award “[w]here there was an
evident material miscalculation of figures or an evident mate-
rial mistake in the description of any person, thing, or property
referred to in the award.”
[23,24] Under the FAA, “arbitration is a matter of contract,
and courts must enforce arbitration contracts according to their
terms.”60 “An evident material mistake is an error that is appar-
ent on the face of the record and would have been corrected
had the arbitrator known at the time.”61
In the present case, the definition of which individuals and
entities comprised each party was set forth in the separation
agreement and in the first case management order. Throughout
the arbitration proceedings, the individuals and entities com-
prising the Omaha Seldins and the Arizona Seldins agreed to
joint and several liability for any award entered against the
Omaha Seldins or the Arizona Seldins, respectively.
Scott entered into a binding agreement to arbitrate all claims
relating to the separation of the parties’ jointly owned proper-
ties, and he is included in the definition as one of the individ
uals comprising the Arizona Seldins. Scott also agreed to
joint and several liability for all awards issued against the
60
Henry Schein v. Archer and White Sales, ___ U.S. ___, 139 S. Ct. 524,
529, 202 L. Ed. 2d 480 (2019) (citing Rent-A-Center, West, Inc. v. Jackson,
561 U.S. 63, 130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010)).
61
94 Am. Jur. Trials 211, § 96 at 359 (2004).
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Arizona Seldins. According to the terms of the separation
agreement, Scott is jointly and severally liable for all awards
issued. We hold that the district court did not err in overruling
Scott’s motion.
(g) Claims Bar Date
Scott individually asserts that the district court erred in
failing to vacate the final award relating to the Sky Financial
claim because the claim was untimely and the arbitrator
exceeded his powers by permitting the Omaha Seldins to bring
the claim.
Again, §§ 10 and 11 of the FAA set forth the exclu-
sive grounds for vacating or modifying an arbitration award.62
“‘[S]o long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his author-
ity,’ the award should be confirmed.”63
The separation agreement contains a provision stating that
“reasonable amendments to Claims in pending actions shall
be allowed in the Mediator’s discretion based on discovery,
admissions, interim decision, and other developments in the
prosecution of the Claim, consistent with the Federal Rules of
Civil Procedure.” On December 3, 2013, the arbitrator granted
the Omaha Seldins leave to amend their claims on or before
December 6, “in the interests of justice and economy.”
Scott complains that the parties’ agreed-upon claims bar date
was July 2, 2012, and that the Omaha Seldins’ Sky Financial
claim was untimely because it was filed on November 14,
2014. Scott argues that the arbitrator exceeded his powers by
granting leave to amend because under Fed. R. Civ. P. 15, he
was required to apply the relation-back doctrine when assess-
ing the timeliness of the claim.
Rejecting this argument, the district court found that the arbi-
trator interpreted the separation agreement when concluding
62
See Hall Street Associates, L. L. C., supra note 17.
63
Beumer Corp. v. ProEnergy Services, LLC, 899 F.3d 564, 565 (8th Cir.
2018) (quoting Medicine Shoppe Intern., supra note 25).
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leave to amend should be granted and that the arbitrator’s deci-
sion was consistent with Fed. R. Civ. P. 15(a)(2). That section
provides that “[t]he court should freely give leave [to amend]
when justice so requires.”64 The district court also found that
this argument mischaracterized the significance of “relation
back” under Fed. R. Civ. P. 15 because the amended plead-
ing did relate back to a claim that had originally been filed on
October 9, 2011, prior to the parties’ claims bar date.
We hold that the district court did not err in rejecting this
claim. Scott does not argue that the arbitrator was not interpret-
ing the separation agreement; rather, he argues that the arbitra-
tor “was required to apply the ‘relation-back’ method of review
under the [Federal Rules of Civil Procedure], before allowing
the Sky Financial Claim to be brought after the Claims Bar
Date.”65 The record clearly demonstrates the arbitrator was
construing the separation agreement when he concluded that
leave should be granted. The arbitrator’s decision to grant the
leave is not grounds to vacate the award. This argument is
without merit.
4. Omaha Seldins’ Cross-Appeal
On cross-appeal, the Omaha Seldins argue they are enti-
tled to reasonable attorney fees and costs in the amount of
$342,860.95. Alternatively, the Omaha Seldins seek a determi-
nation that the district court erred in denying their motion for
order nunc pro tunc.
In determining the amount of a cost or attorney fee award
under § 25-824(2), Neb. Rev. Stat. § 25-824.01 (Reissue 2016)
states that “the court shall exercise its sound discretion.”
In its May 3, 2018, order, the district court entered judg-
ment in favor of the Omaha Seldins for an amount equal
to the attorney fees and costs incurred in resisting the
Arizona Seldins’ application seeking vacation or modifica-
tion of the final award and in seeking dismissal of the various
64
Fed. R. Civ. P. 15(a)(2).
65
Brief for appellee Scott on cross-appeal at 33.
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applications filed by Scott. After the judgment was issued,
the Omaha Seldins submitted evidence demonstrating that
it had incurred $342,860.95 in fees and costs: $211,676.50
by the Bryan Cave law firm and $131,184.45 by the McGill
law firm. However, when calculating the amount of fees to
be awarded, the district court neglected to include the Bryan
Cave law firm’s fees of $211,676.50. Although intending to
include the fees from both law firms, the district court’s order
included only the McGill law firm’s fees for a total amount
of $131,184.45.
The Omaha Seldins filed a motion for order nunc pro tunc,
seeking an order substituting $342,860.95 for the total amount
of fees incurred. In a written order, the district court stated that
it had “clearly intended to award attorney fees to Petitioners in
an amount, as stated in the Court’s Order of February 28, 2019,
equal to the attorney fees and costs incurred.” But the court
denied the motion after concluding that “[a]n Order Nunc Pro
Tunc [could not] be used to enlarge the judgment or substan-
tially amend[] the judgment even though said judgment was
not the order intended.”
Pursuant to the May 3, 2018, order, the Omaha Seldins are
entitled to their judgment for “an amount equal to the attor-
neys’ fees and costs [the Omaha Seldins] incurred in resisting
[the Arizona Seldins’] application seeking vacation or modifi-
cation of the Final Award and in seeking dismissal of the vari-
ous applications [filed by Scott].” The district court’s error in
calculating the amount of the award resulted in the Omaha
Seldins’ being unfairly deprived of their right to $211,676.50
in fees incurred by the Bryan Cave law firm. Thus, the district
court abused its discretion in determining the overall amount
of the award.
[25] Ordinarily, an improper calculation of attorney fees
would require a remand in order to reconfigure the award.66
However, when the record is sufficiently developed that a
66
Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 573 N.W.2d 467
(1998).
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reviewing court can apply the law to the facts and calculate a
fair and reasonable fee without resorting to remand, that route
is available to the appellate court.67
Here, a remand is not required because the Omaha Seldins
presented evidence demonstrating the amount of fees incurred,
and we find these fees to be reasonable. Further, a remand
would serve only to needlessly prolong this litigation and
further undermine the finality of the arbitration award. We
conclude that the Omaha Seldins are entitled to a total fee
award of $342,860.95. Accordingly, we order the Arizona
Seldins to pay the Omaha Seldins an additional $211,676.50
for fees incurred by the Byran Cave law firm on behalf of the
Omaha Seldins.
[26] Because we order the payment of $211,676.50, we do
not reach or address the issue of whether the district court erred
in denying the Omaha Seldins’ motion for order nunc pro tunc.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it.68
5. Arizona Seldins’ Motion
to Dismiss Cross-Appeal
The Arizona Seldins, along with Scott and Millard, filed
a joint motion to dismiss the Omaha Seldins’ cross-appeal
on the ground that the Omaha Seldins’ registration of the
district court’s judgment with an Arizona state court consti-
tuted a voluntary acceptance of the benefits of the judgment
and, thus, prevents the Omaha Seldins from prosecuting their
cross-appeal. The Omaha Seldins maintain that they have not
attempted to collect upon the judgment entered on February 28,
2019, and that the registration of the judgment was merely a
procedural act taken for purposes of collecting on the judgment
when collection was permitted.
67
Id.
68
Selma Development v. Great Western Bank, 285 Neb. 37, 825 N.W.2d 215
(2013).
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[27-29] Generally, under the acceptance of benefits rule, an
appellant may not voluntarily accept the benefits of part of a
judgment in the appellant’s favor and afterward prosecute an
appeal or error proceeding from the part that is against the
appellant.69 However, the rule does not apply when the appel-
lant has conceded to be entitled to the thing he or she has
accepted and where the appeal relates only to an additional
claim on his or her part.70 In asserting that the acceptance of
benefits rule precludes an appeal, the burden is on the party
asserting the rule to demonstrate that the benefits of the judg-
ment were accepted.71
Here, the Omaha Seldins agree with the judgment, except
for seeking an additional recovery of attorney fees that were
mistakenly omitted from the district court’s judgment. Further,
the Arizona Seldins have presented no evidence demonstrat-
ing the Omaha Seldins have accepted the benefits of the
judgment. We hold that the Omaha Seldins’ mere registration
of the judgment does not preclude their cross-appeal for the
recovery of additional fees and costs. This argument is with-
out merit.
VI. CONCLUSION
The FAA provides that a court must confirm an arbitra-
tion award unless grounds exist for vacating or modifying the
award under § 10 or § 11 of the FAA.72 Because neither the
Arizona Seldins nor Scott have demonstrated any such grounds
exist, the parties are bound by their agreement to arbitrate and
the arbitrator’s construction of that agreement.
We hold that the district court did not err in confirming
the arbitration award and denying the motions to vacate and/
or modify the award, nor did it err in denying the Arizona
69
Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006).
70
Id.
71
See 5 Am. Jur. 2d Appellate Review § 543 (2018).
72
Hall Street Associates, L. L. C., supra note 17.
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Seldins’ motion to supplement the record. We further hold that
the district court did not abuse its discretion when awarding
attorney fees in favor of the Omaha Seldins or when deny-
ing Scott’s motion to alter or amend the court’s May 3, 2018,
order. We conclude that the Omaha Seldins’ registration of
the district court’s judgment does not preclude the Omaha
Seldins’ cross-appeal. Finally, we hold that the Omaha Seldins
are entitled to reasonable attorney fees and costs incurred in
confirming the arbitration award and resisting the various
applications filed by the Arizona Seldins and Scott and that the
district court abused its discretion when failing to include the
Bryan Cave law firm’s fees in its calculation of the amount of
fees to be awarded.
Accordingly, we (1) affirm the district court’s confirmation
of the arbitration award, (2) affirm the district court’s denial
of the Arizona Seldins’ and Scott’s motions to vacate and/or
modify the award, (3) affirm the district court’s denial of the
Arizona Seldins’ motion to supplement the record, (4) affirm
the district court’s award of sanctions under § 25-824, (5) over-
rule the Arizona Seldins’ motion to dismiss the Omaha Seldins’
cross-appeal, and (6) sustain the Omaha Seldins’ cross-appeal
and order the fee judgment in favor of the Omaha Seldins be
increased to $342,860.95.
Affirmed as modified.
Miller-Lerman, J., not participating.
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429 F.2d 583
UNITED STATES of America, Plaintiff-Appellee,v.Louis Vaughn HOOPER, Defendant-Appellant.
No. 27477 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Aug. 4, 1970.
Donald L. Malouf, Dallas, Tex. (court-appointed), for appellant; Louis Vaughn Hooper, in pro. per.
Wm. F. Sanderson, Jr., Asst. U.S. Atty., Eldon B. Mahon, U.S. Atty., for appellee.
Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit judges.
PER CURIAM:
1
The principal contentions in this appeal1 from a conviction of interstate transportation of falsely made and forged securities, in violation of 18 U.S.C. 2314, are that appellant's signing of the initial Rule 20 Consent was made without effective consultation with his court-appointed attorney, and that such error because of his agitated condition was not cured by his signing a subsequent Rule 20 Consent. These points were not raised before the district court, and the record does not present sufficient facts for determination of the questions now asserted on direct appeal. Neither were any facts developed concerning the allegations of a purported 'trade' with the Assistant United States Attorney for a shorter sentence than that imposed by the District Judge.
2
The judgment is affirmed, without prejudice to the right of appellant to present his contentions by other proceedings available to him. See Moore v. United States, 5 Cir., 1966, 359 F.2d 852; Tyree v. United States, 5 Cir., 1965, 351 F.2d 611.
1
Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Company, 5 Cir., 1969, 417 F.2d 526, Part I
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867 F.2d 1344
57 USLW 2560, 51 Ed. Law Rep. 1169
ALABAMA STUDENT PARTY, an unincorporated association;Cheyenne Miranda; Bertram Fairries; Doug Styles;Scott Sims; Jeff Kimel; TammyMcKinney; and Jerry W. Dyess,Jr., Plaintiffs-Appellants,v.STUDENT GOVERNMENT ASSOCIATION OF THE UNIVERSITY OF ALABAMA;John Merrill in his official capacity as President of theStudent Government Association; Joab Thomas in his officialcapacity as President of the University of Alabama; andtheir respective agents, servants, assigns, successors inoffice, Defendants- Appellees.
No. 87-7090.
United States Court of Appeals,Eleventh Circuit.
March 16, 1989.
Edward Still, Reeves & Still, Birmingham, Ala., Neil Bradley, Atlanta, Ga., for plaintiffs-appellants.
Paul E. Skidmore, University Counsel, George B. Gordon, The University of AL System, Tuscaloosa, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before RONEY, Chief Judge, TJOFLAT, Circuit Judge, and PAUL*, District Judge.
RONEY, Chief Judge:
1
This appeal is from a district court order upholding against a First Amendment challenge certain election regulations of the Student Government Association (SGA) of the University of Alabama. We affirm, although on slightly different grounds than the district court.
2
Plaintiffs, individual students and an association of students interested in running for office, challenged regulations adopted by the SGA which (1) restricted the distribution of campaign literature to three days prior to the election and only at residences or outside of campus buildings; (2) prohibited distribution of campaign literature on election day; and (3) limited open forums or debates to the week of the election.
3
The district court first determined that the SGA was a state actor subject to the same constitutional restrictions as the University itself. It then concluded that the challenged regulations met the reasonableness standard used to measure the constitutionality of speech restrictions in a non-public forum, using the framework established by Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).
4
Although we agree that the challenged regulations should be evaluated under a reasonableness standard, we do not believe that Perry is the proper vehicle to do so here. Rather, the cases applying Perry in a school setting deal with situations where some student group is seeking access, or funding, or some similar treatment that other student groups are already receiving. See, e.g., Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). This analysis would more properly apply if the SGA was seeking access to the University campus for its elections. But that is not the case here.
5
The United States Supreme Court has consistently reaffirmed the right of state universities to "make academic judgments as to how best to allocate scarce resources," and to determine independently on academic grounds "who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 278, 70 L.Ed.2d 440 (1981) (citations omitted). The central justification for a student government organization is that it supports the educational mission of the University. This deference to the educational mission of institutes of higher learning has resulted in the recognition of a "university's right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education." Id. at 277, 102 S.Ct. at 278.
6
The proper analysis centers on the level of control a university may exert over the school-related activities of its students. The question is whether it is unconstitutional for a university, which need not have a student government association at all, to regulate the manner in which the Association runs its elections. That question is a different one than posed by election restrictions in a non-academic setting. For example, in Sellman v. Baruch College, 482 F.Supp. 475 (S.D.N.Y.1979), the court upheld requirements that candidates for student office register for 12 credits and maintain a 2.5 grade point average. In deciding the restrictions were reasonable and in furtherance of legitimate state interests, the court stated:
7
The fundamental purpose of Baruch College is to educate students. Participation in student government is known to be a demanding and time-consuming activity that those interested in the progress and welfare of the students might reasonably conclude is detrimental to the academic progress of students whose grades are only barely above the passing rate.
8
Id. at 480.
9
Of course, academic qualifications for public office could never withstand constitutional scrutiny in the "real world." But this is a university, whose primary purpose is education, not electioneering. Constitutional protections must be analyzed with due regard to that educational purpose, an approach that has been consistently adopted by the courts.
10
Just last term, the Supreme Court reaffirmed that "the First Amendment rights of students in the public schools 'are not automatically coextensive with the rights of adults in other settings.' " Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988) (quoting Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986)) and that the rights must be considered in "light of the special characteristics of the school environment." Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). See also, New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985) (holding in a Fourth Amendment context that "school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.")
11
In Hazelwood, the Court found that the First Amendment was not violated when school officials withdrew two stories about divorce and teenage pregnancy from the school newspaper. There, the Court specifically addressed the right of educators to control school-related speech, holding that such control may be exercised "so long as their actions are reasonably related to legitimate pedagogical concerns." 108 S.Ct. at 571. Similarly, in Bethel, the Court found that the First Amendment did not prohibit school officials from punishing a student who used "vulgar and lewd" speech, although not legally obscene, in a high school assembly or from determining that such speech would "undermine the school's basic educational mission." 478 U.S. at 685, 106 S.Ct. at 3166. Again, the Court recognized that the standards governing burdens on the speech of adults to an audience of adults may differ from the standards governing speech of students in public schools. Id. at 682, 106 S.Ct. at 3164.
12
Even in Tinker, upholding the right of three students to wear black armbands in protest of the Vietnam war, the Court made clear that this right existed only so long as the students did not present a "material and substantial interference with schoolwork or discipline." 393 U.S. at 511, 89 S.Ct. at 739. It is significant that the Court in Tinker also spoke in terms of "reasonableness."
13
The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances.
14
Id. at 513, 89 S.Ct. at 740 (emphasis added). Similarly, the Court noted that the record did not demonstrate that school authorities reasonably feared school disruption. Id. at 514, 89 S.Ct. at 740-41. Thus, the SGA rules ought to be assessed on the basis of their reasonableness as well.
15
According to the depositions in this case, the University views its student government association, including the election campaigns, as a "learning laboratory," similar to the student newspaper or student yearbook. This "laboratory" allows students who "aspire to public service, public life, [and who] want to gain some experience and expertise in better understanding the way in which democracy functions," an opportunity to learn how to work within the democratic process. These statements indicate that student government and the campaigns associated with it do not constitute a forum generally open to the public, or a segment of the public, for communicative purposes, but rather constitute a forum reserved for its intended purpose, a supervised learning experience for students interested in politics and government.
16
It should be noted that the Supreme Court was mindful in Hazelwood of the distinct issues presented to it by the facts in that case and in Tinker. The Court recognized there is a difference between speech a school must tolerate and speech a school must affirmatively promote. In Hazelwood, the school could determine what was appropriate in a school-sponsored student newspaper when that newspaper was legitimately part of the learning experience, the curriculum, of the school. Certainly, the school was not required to establish a newspaper. Equally clear is that the mere establishment of the newspaper does not then magically afford it all the First Amendment rights that exist for publications outside of a school setting. In Tinker, the issue was distinct. There, the regulation selected out a particular message, which just happened to occur on school premises, for punishment. That is not before this Court.
17
The University should be entitled to place reasonable restrictions on this learning experience. The district court concluded after a hearing that although the regulations were "rather narrow and limiting," they were neither "unreasonable," nor "arbitrary and capricious." The district court noted that by promulgating such regulations, the University sought to minimize the disruptive effect of campus electioneering, an interest which the district court found to be legitimate. There was no evidence that the regulations were anything but viewpoint-neutral.
18
The University judgment on matters such as this should be given great deference by federal courts. This Court should honor the traditional "reluctance to trench on the prerogatives of state and local educational institutions." Regents of University of Michigan v. Ewing, 474 U.S. 214, 226, 106 S.Ct. 507, 514, 88 L.Ed.2d 523 (1985). The reason for this is that "[a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself." Id. at 226 n. 12, 106 S.Ct. at 514 n. 12 (citations omitted). In the present case, and in other school cases raising similar First Amendment challenges, these principles translate into a degree of deference to school officials who seek to reasonably regulate speech and campus activities in furtherance of the school's educational mission. Accordingly, the decision of the district court is
19
AFFIRMED.
TJOFLAT, Circuit Judge, dissenting:
20
This case concerns the validity of regulations promulgated by a university student government that restrict election campaigning for student government offices. Appellants, a student political "party" and seven of the party's members, contend that the regulations violate their first amendment right to freedom of speech. The district court found that the university campus is not a public forum open for the discussion of student government elections; the court therefore upheld the regulations and denied appellants' request for declaratory and injunctive relief. The majority concludes that these regulations do not unconstitutionally restrict the free expression of the students at the University of Alabama. I respectfully dissent for two reasons: first, because I believe that the University has advanced no educational interest in the election regulations; and second, because even if such an interest were advanced, the challenged regulations are overbroad.
I.
21
The University of Alabama is a state university located in Tuscaloosa, Alabama. The University has created a student organization, known as the Student Government Association (SGA). The organization's membership consists of all full-time students registered at the University.1 The officers of the SGA are elected annually by its members. Some of these members have formed political "parties" to improve their chances of being elected to office in the SGA. One such party is appellant Alabama Student Party. The party has approximately eighty members, and several have run for office in the SGA.
22
The SGA has promulgated certain "Campaign Rules and Regulations." These rules provide, in relevant part, that:
23
Section 1. NEWSPAPER FACILITIES So long as equal space and facilities are made available to all candidates in the same office, any publication may be used in connection with campaign advertising. No more than one page cumulative total of standard size of newspaper may be used by candidates for President, Vice President, or Treasurer during the entire campaign. Candidates for school offices, Student Senate, and the Media Planning Board may to [sic] use more than one half page total cumulative.
Section 2. PLACEMENT OF CAMPAIGN MATERIALS
24
a. campaign materials may be distributed no earlier than three days prior to the election.
25
b. materials, including handouts and flyers, shall be distributed only at a place of residence or outside of a public building on campus by hand, and under no circumstances shall it be deposited in any mailbox or affixed to any surface, or left in any building, classrooms, or any other public building on or off campus with the exception of a place of residence. This is to include all walls, windows, vehicles, etc.
26
Section 3. REMOVAL OF CAMPAIGN MATERIALS. All campaign material must be removed from all locations by 11:59 p.m. the day preceding the election date.
27
....
28
Section 5.
29
a. There shall be no dissemination of campaign materials as defined in Section 7 of this chapter, on the day of the elections.
30
b. No material relating to any candidates for election may be generally distributed on Election Day within any academic building of the campus, or within one hundred feet of such a building.
31
c. No material relating to any candidates for election may be generally distributed on Election Day within any building containing a polling place, or within one hundred feet of such a building.
32
....
Section 7. CAMPAIGN MATERIALS LIMITATIONS
33
a. The following definitions and limitations shall apply:
34
1. a handout (to include doorknockers, cards, and pamphlets) shall be no longer than 9" X 14".
35
2. a flyer shall be xeroxed or memeographed [sic] material (on regular or electrostatic stencil) on regular or legal-sized paper.
36
b. A candidate for executive office may have one handout and no more than 2 different flyers. A candidate for any other office may have one kind of handout or flyer.
37
Section 8. ELECTION FORUMS. The Elections Chairman shall be responsible for establishing open forums on campus during the campaign week to which all executive candidates for offices shall be invited to present their views. The Elections Chairman shall be responsible for publicizing these forums and notifying the candidates. All forums must register with the Elections Chairman not less than 48 hours before the forum. Candidates for other offices may be invited to participate if requested by the sponsor of the particular forum. Forums shall be limited to one per night. The Elections Chairman shall be responsible for establishing rules governing these forums. Any registered organization which is determined with reasonable certainty by the Elections Chairman to have violated these regulations shall be brought before the student court. If determined guilty, the organization shall:
38
a. be fined not more than $100.
39
b. lose its University registration and be ineligible for SGA funding for one year.
40
(emphasis added). The University itself has imposed no regulations on student elections other than the minor time, place, and manner restrictions applicable to all topics of speech. For example, the University prohibits students from placing advertisements on vehicles without the owner's permission, and attaching posters to the walls of university buildings, except on bulletin boards.2
41
Appellants believe that the SGA's campaign regulations unduly restrict their right to freedom of speech in violation of the first and fourteenth amendments to the United States Constitution; consequently, they brought this suit for declaratory and injunctive relief to prevent the SGA and the University from enforcing the regulations.3 After a bench trial, the court nied appellants' application and entered final judgment against them. The court found that the SGA and the University are state actors, and thus subject to the first and fourteenth amendments, and that the SGA regulations restrict speech based on its content, as opposed to the time, place, and manner in which speech can be delivered; nevertheless, the court concluded that the regulations pass constitutional muster.
II.
42
The parties do not dispute the district court's conclusion that the SGA and the University are state actors and thus subject to the first and fourteenth amendments. Nor is there any dispute that the SGA regulations restrict speech based on its content, as opposed to the time, place, and manner of speech.4 The question thus becomes whether the district court applied the correct constitutional standard in assessing the validity of the challenged regulations.
A.
43
It is well settled that a state's ability to restrict speech that occurs on government property depends on the nature of the forum created by the property involved. See Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 799-802, 105 S.Ct. 3439, 3448-49, 87 L.Ed.2d 567 (1985); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983); United States v. Belsky, 799 F.2d 1485, 1488-89 (11th Cir.1986). The Supreme Court has identified three such fora. The first is the "traditional public forum"--a place which has " 'immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " Perry, 460 U.S. at 45, 103 S.Ct. at 954-55 (quoting Hague v. Committee for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)). Examples of traditional public fora include public streets, sidewalks, and parks. See United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983). In a traditional public forum, a state's power to impose a content-based restriction on speech is extremely limited: the state may enforce such a restriction only if it demonstrates "that [the restriction] is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry, 460 U.S. at 45-46, 103 S.Ct. at 955 (emphasis added).
44
At the opposite end of the spectrum is the "nonpublic forum"--government property which is "not by tradition or designation a forum for public communication." Id. at 46, 103 S.Ct. at 955. In a nonpublic forum, the government may impose reasonable content-based restrictions on speech, provided that the restrictions are not viewpoint-based. See, id.; see also Cornelius, 473 U.S. at 800, 105 S.Ct. at 3449.
45
The third type of government property is the "limited public forum," a combination of the above two types of fora. A limited public forum is created when the government "intentionally open[s] a nontraditional forum for public discourse." Id. at 802, 105 S.Ct. at 3449. In creating such a forum, the government may limit its use to the discussion of certain subjects or to speech by certain speakers. See Perry, 460 U.S. at 45 n. 7, 103 S.Ct. at 955 n. 7. Thus, for those topics or speakers for which the government has made the property available, a limited public forum is treated as a public forum; for all other topics or speakers, it is treated as a nonpublic forum. Once the government has created a limited public forum, it is not required to maintain it indefinitely. As long as the government maintains the forum, however, it is bound by the same constitutional standards that apply in a traditional public forum context: "a content-based prohibition must be narrowly drawn to effectuate a compelling state interest." Id. at 46, 103 S.Ct. at 955.
46
Perry and its progeny thus require the courts to balance the public interest in a protected forum for free expression with the government interest in regulating the use of its own property. Depending on the nature of the forum, the government must justify its regulatory action as either reasonable or necessary to further a compelling interest.
B.
47
Contrary to the assertions of the majority and the findings of the district court, the record is barren of any evidence that the SGA campaign regulations were promulgated, or are currently maintained, to further some educational interest. In fact, the record demonstrates quite the contrary: that the University does not even approve of the challenged regulations. Because this conclusion is at odds with the view of the record taken by the majority, I present the evidence in some detail.
48
The only witnesses presented on behalf of the University were John Baier, the University's Vice-President for Student Affairs, and Melford Espy, the University's former Director of Student Life. When questioned concerning the educational purpose of the SGA, Mr. Baier's testimony was as follows:
49
Q. From an educational standpoint what's the function of having a Student Government Association?
50
A. It's very similar to having a chemistry lab. Government is an important part of our democracy and a university campus needs to foster a laboratory, living, learning laboratory environment--in which students who aspire to public service, public life, that want to gain some experience and expertise in better understanding the way in which a democracy functions, debate, executive powers, judicial powers, legislative powers, the balance of government between the three branches, that the university therefore encourages and fosters there to be student government organizations at multiple levels on the campus.... So, the Student Government Association is simply a place in which there are a larger number of students dealing with the breadth of issues that go across the campus, that have an opportunity to experience firsthand the democratic process under which we all live and ascribe. quently they find that it is hard to work with, and that's what we hope they're learning. We hope that. That's why I say we don't regulate what we do, because part of the learning process is that they have to come to grips with the legislative side of things, the executive side, the judicial side, the difference of opinion, the debate, the controversies that go along with the making of laws, the enforcement of laws, and so we advise them in all of these things, and that's why I make comments to the student press as to whether I think something is fair or unfair or right or wrong, but I don't impose those views on the organization because it is a student government association and it is not a university government association.
51
Q. And I presume as a part of that, that the University believes that there is an educational function in allowing the students to govern themselves even if they govern themselves badly; is that correct?
52
....
53
A. That's where the educational responsibility comes in. We take it very seriously to try to get them to govern themselves well and properly and consistently and fairly.
54
This interchange shows that the SGA's only "educational mission," at least in the eyes of the University, is to provide students a realistic experience in self-government. As the testimony of Mr. Espy indicates, the University has never claimed that the SGA election regulations further that goal:
55
Q. Does the university have any interest in seeing that these campaign regulations are enforced?
56
A. No, that's, you know, other than the fact that the student body who made them and that things are run in a timely fashion in terms of the candidates, in terms of the abiding by the rules that the students have set down by themselves, I don't see any, and the university has no vested interest in it because it is a governing body of the students and not of the University of Alabama.
57
Q. Does the university have any interest in even the existence of the Student Government Association? Would it make a big difference if the Student Government Association evaporated?
58
....
59
A. I think that it would in that it would eliminate a learning laboratory, just as THE CRIMSON WHITE or the COROLLA or any other avenue in which students could project their interest or practice things that they learn in the classroom in terms of governmental structure, or socialization, or those types of things.
60
In fact, the University, through Mr. Baier, has indicated that it does not approve of the challenged regulations, finding them unduly restrictive of its students' free speech:
61
Q. Now, in [a November 15, 1985 article in The Crimson White, the University school newspaper], the article states, "Baier said he was also disappointed the Senate chose to keep SGA election campaigning at a three-day limit." Your quote now: "I agree that they should restrict the placement of advertisements to ensure orderliness to the campus community. However, it is inappropriate to restrict the freedom of speech." ... Did you make that statement?
62
A. Yes, I did.
63
....
64
[A]ny campus has a certain percentage of students who live in the residence halls. Usually that figure is twenty-five to thirty-five percent where I've been and the remainder of the students live off the campus in apartments or homes. There are a multiplicity of colleges and schools spread out around the campus. To communicate in a personal way with a significant portion of the student body, to communicate your views, as to your views of the student government, or what you would do if you would be elected, it generally takes more than two or three days to get to all of those various places and do all of those various things. So, my orientation has been that a test of reasonableness of how many places can you get to in a given evening, since they're in school in the daytime, can a person reasonably get to canvass the prospective voters, and, so, that the three-day restriction that our current SGA has in its regulations, in my judgment at the time I made that, that seemed to be a bit unreasonable.
65
Q. In an article that I believe was published the thirtieth of January of 1985 in The Crimson White, you made the statement, "Without the support of a political faction you've got to have more than three days to win on a campus of fifteen thousand."
66
Do you remember making that statement?
67
A. Yes, I do.
68
Q. Why do you believe that, other than what you've just stated, that that is true, without the support of a political faction? What difference does a political faction make?
69
....
70
A. I think I answered that previously; it is just getting around.
71
(emphasis added). The record is clear: the University has never maintained "that a time limitation on electioneering ... serves the [University's] interest of trying to contain the amount of [student] energy that is spent in such activities and diverted from other more important activities, including that of scholarship and study," as the district court concluded. Instead, the University's interest in the SGA is limited to ensuring that the organization provides an experience by which students can understand the practical workings of government. In my view, our striking the challenged SGA regulations would not interfere with that educational mission. Indeed, such action would enhance the students' learning experience, teaching them a basic lesson about our political system: that a government may not abridge the free speech of its constituents absent a compelling interest.
C.
72
Even were I to assume that some "educational mission" underlies the SGA regulations, my position would be the same. I recognize that the educational interests of a university could justify regulation of the student government process. See, e.g., Sellman v. Baruch College, 482 F.Supp. 475 (S.D.N.Y.1979) (Candidates for student government must maintain a minimum academic courseload and grade point average.). The proper application of the constitutional standard prescribed in Perry, however, would prevent us from upholding the SGA regulations at issue in this case.
73
First, I would note that the district court focused solely on the regulations' effect on the University's campus, as if it were the only property subject to the restrictions. The SGA regulations, however, are not confined to expressive activity on campus: they govern all SGA campaign activity, whether on or off campus. Thus, campaign literature cannot be distributed on the streets and sidewalks of Tuscaloosa, nor in its parks--areas that are certainly public fora--until three days before the election. Because the regulations control expressive activity in these public fora, they are subject to the constitutional standard applicable to such fora: the "compelling state interest" test. A university's interest in furthering its educational mission, if reasonable in scope, may be a "compelling state interest." See Widmar v. Vincent, 454 U.S. 263, 267 n. 5, 277, 102 S.Ct. 269, 273 n. 5, 278, 70 L.Ed.2d 440 (1981). The sweeping range of the election restrictions, however, prevents any conclusion that the SGA regulations are "reasonable in scope."Second, with regard to the effect of the SGA regulations on the campus, I would note that the district court determined that the campus fell within the "limited public forum" category of government property. I would agree. I conclude, however, that the district court erred in its application of the constitutional standard governing this type of forum.
74
The district court treated the campus as if the University had generally created a public forum, but in creating this forum had reserved the right to limit speech associated with SGA elections. In Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269 (1981), the Supreme Court was faced with a situation somewhat similar to the one that confronted the district court in this case. In Widmar, the University of Missouri at Kansas City (UMKC) opened its meeting facilities for general student use, no matter what the topic of discussion. Thereafter, UMKC closed those facilities for one topic of discussion--religion--believing that the first amendment's establishment clause required it to do so.
75
In response to UMKC's action, members of one of its student religious organizations sought an injunction prohibiting further enforcement of the restriction, contending that the restriction violated their constitutional rights to equal protection, free exercise of religion, and freedom of speech. The district court upheld the restriction, granted UMKC summary judgment, see Chess v. Widmar, 480 F.Supp. 907 (W.D.Mo.1979), and the students appealed. The court of appeals held that the restriction violated the free exercise and free speech clauses of the first amendment, and reversed the district court. See Chess v. Widmar, 635 F.2d 1310 (8th Cir.1980). The Supreme Court, on certiorari, affirmed the court of appeals' decision. See Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981).
76
The Supreme Court observed, as a threshold matter, that contrary to UMKC's belief, the first amendment establishment clause did not preclude it from permitting religious discussion in its meeting facilities. See id. at 270-75, 102 S.Ct. at 275-77. Noting that UMKC had a policy of making its meeting facilities generally available to its students without regard to the topic of discussion, the Court then held that those facilities were a public forum, limited to student use. See id. at 267, 102 S.Ct. at 273. The ban on religious discussion thus constituted a content-based restriction on speech in a limited public forum. Because UMKC had not shown a "compelling state interest" justifying the restriction, the Court declared the restriction unconstitutional.5
77
Implicit in Widmar 's holding is that once a state university opens its campus as a limited public forum for student speech, the university cannot eliminate a topic of speech merely by stating that it is placing a "limitation" on the forum. If a university could do so, the result in Widmar would have been different. The Court would have treated UMKC's ban on religious speech as a limitation on a created public forum--i.e., the UMKC campus would not have been a public forum for religious discussion--and, accordingly, would have used a standard of "reasonableness" to test the restriction. By using the "compelling state interest" test, however, the Court tacitly rejected this approach and held that UMKC's content-based restriction could not be justified as a mere limitation on a campus forum.
78
In the case before us, the district court adopted the approach implicitly rejected in Widmar. The parties do not dispute that the University is making its campus generally available for student debate, limiting only one topic of discussion: political speech regarding SGA elections. Widmar mandates that the validity of this action be assessed under the "compelling state interest" test. Applying this test to the instant case, I can perceive no "educational mission" that would compel the implementation of the broad regulations adopted by the SGA. I would hold that the district court erred in so concluding.6
III.
79
The district court should have declared the challenged campaign regulations unconstitutional, as an infringement of appellants' right of free speech. The University of Alabama has not attempted to justify an educational purpose for the regulations--indeed, the University has indicated that it finds the regulations overly restrictive of its students' right to freedom of speech. Moreover, even if the University had maintained that the regulations were necessary for the pursuit of its "educational mission," I would find them overbroad. I therefore respectfully dissent.
*
Honorable Maurice M. Paul, U.S. District Judge for the Northern District of Florida, sitting by designation
1
The SGA is financed through a mandatory student activity fee levied by the University on all students
2
The appellants do not challenge the constitutionality of these general time, place, or manner restrictions
3
In their answers to the complaint, the SGA and the University denied the material allegations of the complaint and asserted, as an affirmative defense, that the eleventh amendment to the United States Constitution barred appellants' suit. The district court struck this affirmative defense as legally insufficient, and appellees do not question the court's ruling here
4
In their brief, appellees urge us to uphold the district court's decision on the ground that the SGA regulations are not content-based because they apply to all SGA candidates. This argument is without merit: if a restriction on speech singles out one subject for regulation, the restriction is content-based. See Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537-38, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980); Carey v. Brown, 447 U.S. 455, 462 & n. 6, 100 S.Ct. 2286, 2291 & n. 6, 65 L.Ed.2d 263 (1980)
5
The Court, however, noted that a state has slightly more authority to regulate speech on campus than to regulate speech in a public forum located off campus:
This Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum....
At the same time, however, our cases have recognized that First Amendment rights must be analyzed "in light of the special characteristics of the school environment." We continue to adhere to that view. A university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities.
Widmar, 454 U.S. at 267 n. 5, 102 S.Ct. at 273 n. 5 (citations omitted); see id. at 277, 102 S.Ct. at 278 (recognizing "a University's right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education").
6
I would not hold that, with respect to the students, the entire University campus is a public forum, in which all restrictions on student speech must be tested under the "compelling state interest" standard. A campus of a major state university is a microcosm of the community, and, as such, contains a variety of fora. Some places on campus, such as the administration building or the president's office, are not opened as fora for use by the student body, and may be best described as nonpublic fora. Other places on campus, such as the residence halls and fraternity and sorority houses, have been created to allow student expression, but remain limited for use by certain groups or for the discussion of certain subjects; these places may be best described as limited public fora. Other places on campus, such as the campus student union, streets, sidewalks, and park-like areas, are freely used for student expression. These areas are best described as traditional public fora, in which a university's ability to regulate speech is most circumscribed. Whether a university regulation restricts student speech in a part of its campus that is a public forum depends on the facts of each case. I simply note that in the present case, because the SGA regulations apply to all parts of the campus, the regulations restrict speech in parts of the campus which are, with respect to the students, public fora
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423 F.2d 1257
Walter C. THOMPSON, Individually and as Administrator of theEstate of Janie Underdown Thompson, deceased,Plaintiffs-Appellees,v.ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellant.
No. 19459.
United States Court of Appeals, Sixth Circuit.
April 10, 1970.
James G. Wheeler, Paducah, Ky., Wheeler & Marshall, Paducah, Ky., on the brief, for appellant.
Milton M. Livingston, Jr., Paducah, Ky., Dandridge F. Walton, Carroll & Walton, Paducah, Ky., on the brief, for appellees.
Before WEICK, EDWARDS and PECK, Circuit Judges.
WEICK, Circuit Judge.
1
Appellant, Illinois Central Railroad Company (the railroad), has appealed from judgments entered against it in the District Court on verdicts in favor of plaintiffs in the amounts of $25,000 and $2,350, in an action for damages for the wrongful death of plaintiff's wife, for her funeral expenses, and for damages to the automobile which she was driving, the action arising out of a collision with defendant's freight train at a grade crossing.
2
The accident occurred at about seven o'clock in the evening of December 29, 1967, on Schneidman Road in McCracken County, Kentucky, immediately south of the city limits of Paducah, where tracks of the Paducah & Illinois Railroad cross said highway at grade.1 It was dark at the time.
3
The sole issue raised in this appeal is that the District Court erred in denying the railroad's motion for a directed verdict and for judgment notwithstanding the verdict. These motions were based on the contention of the railroad that the decedent was contributorily negligent as a matter of law.
4
We are of the opinion, for the reasons hereafter given, that decedent was contributorily negligent as a matter of law. This diversity case is governed by Kentucky law.
5
Schneidman Road is about twenty feet wide, runs north and south, and is a heavily traveled thoroughfare in Paducah. It is intersected at grade by two separate tracks owned respectively by the Illinois Central Railroad and the Paducah & Illinois Railroad. They are single tracks running in an east-west direction, roughly parallel to each other at the crossing, and are separated by a distance of 167 feet. Cross-buck signs indicating the railroad crossing are located on either side of Schneidman Road at both tracks, and are visible to motorists approaching from either direction. The Paducah & Illinois track is slightly higher than the Illinois Central track.
6
Plaintiff and his wife had lived in the county for about eleven years prior to the accident and both were employed.
7
The decedent was 39 years of age. On the night of the accident she was driving her husband's automobile in a northerly direction on Schneidman Road. She first drove safely over the tracks of the Illinois Central Railroad, and proceeded 167 feet to cross the tracks of the Illinois & Paducah Railroad, directly in the path of the approaching freight train, and was struck broadside by the front locomotive. Her automobile was propelled across the tracks and came to rest in an adjacent lot on the northerly side of the tracks.
8
The freight train was about a mile long. It consisted of 107 cars which were being moved by two diesel locomotives. The front locomotive was equipped with a powerful sealed-beam headlight which shone 1000 to 1500 feet ahead and lighted the adjacent ground on either side of the tracks for about fifty feet. It was also equipped with an air horn and a bell signal.
9
The train crew estimated the speed of the train at from twenty to twenty-five miles an hour,2 and gave substantially the same estimate for the speed of the automobile operated by decedent. There was no slackening of speed of either the train or the automobile prior to the accident. When the train came to a stop, thirty-six cars had crossed Schneidman Road.
10
The train crew testified to the giving of the statutory signals3 but this was disputed. Three persons, who were playing a game in a house near the tracks, testified that they did not hear the whistle or the bell. Plaintiff's witness, Troy E. Colson, who was driving an automobile in the opposite direction from decedent and had passed her just prior to the accident, testified that after he crossed the Paducah & Illinois track'* * * the train blowed the whistle. * * * It was one short whistle three or four seconds long and that was all.' (T. 24)
11
The train was about three hundred feet away from the crossing when Colson heard the whistle blown. He did not hear the train's whistle or bell before that time.
12
While the positive testimony that the signal was given may be entitled to greater weight than the negative testimony of the witnesses who did not hear them, we are of the opinion that the weight of this evidence was for the jury to consider and the District Judge did not err in submitting to the jury the issue of negligence on the part of the railroad in failing to give the statutory signals. The railroad does not dispute this.
13
In considering the question whether a verdict should have been directed on the ground of contributory negligence, we are required to view the evidence, as well as the inferences justifiably drawn therefrom, in the most favorable light to plaintiff. Baird v. Cincinnati, New Orleans & Texas Pac. Ry., 315 F.2d 717, 720 (6th Cir. 1963). We must determine--
14
'Under all the facts and circumstances of this particular case, was there room for reasonable, fair-minded men to differ on the question of whether * * * (the plaintiff) exercised ordinary care?' Hargadon v. Louisville & Nashville R.R., 375 S.W.2d 834, 838 (Ky.1964).
15
Accord, Louisville & Nashville R.R. v. Hines, 302 S.W.2d 553, 556 (Ky.1957).
16
The testimony of plaintiff's witness, Colson, who appeared to be the only disinterested witness to the accident, is most significant. Traveling in the opposite direction from the decedent, he crossed the higher (Paducah & Illinois) tracks just prior to the accident. He testified on direct examination:
17
'A * * * So I eased on up to the track, and as I approached the track, I was doing 30 at that time, around 30, and as I approached the track I slowed down, and I started up the grade and I was almost to a halt looking at the train to see if I had time to get over, it was coming from the west, and I seen I had time and I crossed on over the track, and as I crossed the track, I looked back at the train on the right, and as I started down the grade on the other side, the train blowed the whistle.
18
49 What type of whistle was it?
19
A It was one short whistle three or four seconds long and that was all.
20
50 How far was the train down the track at the time it tooted the whistle there?
21
A I figured it was about 300 feet.
22
51 Had the train ever blown its whistle or rung its bell before that time?
23
A No.
24
52 Now, what happened next?
25
A Well, sir, as I went on I started picking up speed, I went on over the grade, and there was another car approaching me coming to the north from the south, and me and the car passed about two thirds of the way between the tracks, from the high track to the low track, to the Illinois Central.
26
53 In other words, you got two thirds of the way between the tracks here?
27
A Yes, sir, and the lower track, which was the Illinois Central track, was a little rough on the other side, there was holes and places in it, and I had slowed down again to cross them tracks, and just as I crossed and started picking up speed again I looked up in the rear view mirror when I seen the car approaching on top of the track and the train struck it.
28
54 Did you actually see the striking of the train and automobile?A Yes, sir, I did, in my rear view mirror. When the train hit the car, it looked like the car was scooped up from the track and sparks flying from it, and it looked like some pieces had flew off of the car too. It got outside my rear view mirror and I turned to my left to look and the car was done gone then.' (T. 24-25)
29
Thus, plaintiff's own witness crossed these tracks just prior to the accident, saw the approaching train only 300 feet away, heard the whistle blow for three or four seconds, and proceeded toward the track of the Illinois Central when he passed the decedent's automobile going north, the witness having traversed almost two-thirds of the distance between the tracks. After passing Colson's automobile, decedent's view to her left was unobstructed for a distance of about 112 feet to the track where the accident occurred.
30
Colson further testified on cross-examination:
31
'27x Now when you came over the P & I track, the high track as you call it, you say you looked to your right?
32
A Yes, sir.
33
28x You saw the train coming?
34
A Yes, sir.
35
29x You saw the headlights beaming down the track, did you not? They were visible for a considerable distance, weren't they?
36
A Yes, they was hitting my car at that time.
37
30x Well you know, do you not, though you may not have measured it, that that straight course there back to the bridge over the Old Mayfield Road is about a thousand feet, don't you know that?
38
A Yes, sir.
39
31x You would say that is about correct according to this plat?
40
A Somewhere around a quarter of a mile or a little better.
41
32x So that anyone looking in that direction as you did when a train was coming with its lights on, could have seen it as far back as the bridge?
A Yes, sir, they could.' (T. 33-34)
42
The map (plaintiff's Exhibit 4) indicates a distance of 167 feet between the two tracks at the crossing and a distance of 1031 feet from the center of the road at the crossing to the westerly bridge to which the witness referred in his testimony. The map also shows a distance of 202 feet from the south line of the Illinois Central right of way to the southerly track of the Paducah & Illinois Railroad.
43
As the decedent approached the tracks of the Illinois Central and was 202 feet from the Paducah & Illinois track, she had a clear and unobstructed view to the left for at least 1000 feet to the bridge, and if she had looked and listened she could have seen the approaching freight train and could have heard the whistle. Her view may have been obstructed for a few seconds when she passed Colson's automobile two-thirds of the distance between the tracks, but after passing Colson she still had a distance of about 112 feet to travel before reaching the higher track. At that time the train was less than 200 feet from the crossing. Her view to the left was unobstructed. Colson saw the train and heard the whistle. Had she looked and listened as Colson did, she also could have seen the train and heard the whistle, for she arrived at the crossing at the same time as the train. She could have brought her car to a stop. According to Colson, she was traveling only fifteen miles an hour at the time. She should have been able to stop within only a few feet. Colson was even able to observe the collision by looking into his rearview mirror after he had passed over the lower (Illinois Central) track. The darkness did not obscure his vision on this clear night. Plaintiff is bound by the testimony of his own witness. It was not controverted.
44
Engineer Barkley testified that he first observed the automobile operated by decedent when it was about 200 feet from the crossing and the train was about the same distance away. He testified:
45
'I didn't realize she wasn't going to stop until she drove up on the track. As slow as she was going, she didn't give any indication that she wasn't going to stop.'
46
When he saw that she did not stop, he set the emergency brakes but the train then was already at the crossing.
In his brief, appellee states:
47
'Also, there were rough places or holes in the Schneidman Road around the Paducah and Illinois track (App. p. 45a).'
48
The record reference does not support this statement. The rough places and holes were on the other side of the lower track.
49
Appellee also states that south of the lower track there was located a house on the right side of the road, with a row of hedges running along the track which obscured decedent's view until she had practically reached the track. He also states that a warehouse was located on the left. Viewing these facts most favorably to plaintiff, we may infer that these obstructions distracted decedent's view of the upper track (where the collision occurred) until after she had actually crossed the lower track. However, there still remained 167 feet in which she had an unobstructed view of the upper track.
50
Appellee further states that between the tracks to decedent's right there was a row of trees which obscured vision in that direction. We may infer that decedent first looked to see if there were any trains coming from her right. This does not excuse her for not seeing a train coming from her left until it was too late to stop. Appellee also states that to the left, between the two tracks, there was an uncut field of sage full of weeds. There is no evidence that these weeds obscured decedent's view of the train's headlights.
51
It is apparent that decedent's view of the train was not substantially impaired. Even if there was some obstruction of her view looking down the track to her right, there was no obstruction of the crossing itself, which was marked by signs.
52
In Louisville & Nashville R.R. v. Troutman, 351 S.W.2d 516, 519 (Ky.1961), the Court said:
53
'It is unquestioned that a railroad crossing is in itself a warning of danger and that a traveler having knowledge of its existence must exercise care for his own safety in such a degree as is proportionate to the danger then present or apparent of being struck by a train. * * *
54
'If he knows, or in the exercise of reasonable care and prudence must have known, of a train approaching by using his senses of sight and hearing in a way that an ordinarily prudent person would do under similar circumstances, and drives his automobile in front of the train, he assumes the risk of crossing in safety. If he miscalculates and is injured, he is guilty of contributory negligence.'
55
Appellee contends that the crossing was extra-hazardous. He made the same argument in the District Court, which ruled against him. Since he filed no cross-appeal, the issue would not seem to be before us. The issue relates to the defendant's negligence rather than contributory negligence.
56
As was stated in Hargadon v. Louisville & Nashville R.sR., supra, 375 S.W.2d at 838:
57
'In fact, the ultimate answer to the 'extra-hazardous' argument in this case is that the principle simply does not apply when the inquiry is confined exclusively to whether the highway traveler was contributorily negligent, because the hazards of the crossing, whatever they are and whatever their degree, are necessarily embraced in that inquiry anyway.'
58
The highest court in Kentucky has well stated the obligation of a motorist in approaching a railroad track.
59
'The obligation imposed upon every person to exercise ordinary care for his own safety requires that, in approaching a railroad track, he must use his senses in the way that an ordinarily prudent person would under similar circumstances, in order to determine whether it is safe to cross the track at that time. Where the facts make it certain that a traveler could have seen or heard an approaching train in time to avert a collision, had he looked and listened properly, he will not be heard to say that he looked for the train but did not see it, or that he listened for it and did not hear it.' Lousiville & Nashville R.R. v. Hines, supra, 302 S.W.2d at 557.
60
Accord, Hunt's Adm'r v. Chesapeake & Ohio R.R., 254 S.W.2d 705, 709 (Ky.1952); Nashville, C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 719-720, 205 S.W.2d 493 (1947).
61
In Meadows v. Chesapeake & Ohio R.R., 412 S.W.2d 233 (Ky.1967), the Court was faced with a situation similar in some respects to the one before us. The motorist approached a railroad crossing on a clear night. The crossing, with which the motorist was familiar, was described as extrahazardous because it carried heavy train traffic and the view was substantially obstructed until the motorist was within ten or fifteen feet of the tracks. The motorist stopped within fifteen feet of the track and then proceeded slowly across the tracks and was struck by a train. The Court observed:
62
'We are unable to comprehend how this accident could have happened if plaintiff took the precautions he said he did. Had he stopped, looked and listened as he testified, one wonders why he did not see and hear this train. Assuming he could not see or hear it at the point he stopped, he completely abandoned precautions as he slowly approached the crossing.' Id. at 234.
63
Another problem germane to that in the present case was faced by the Kentucky court in Hargadon v. Louisville & Nashville R.R., supra, 375 S.W.2d at 836-837. In Hargadon there was some evidence that the train crew had not sounded the required statutory warning signals. In earlier Kentucky cases it had been held that evidence of negligence on the part of the railroad crew in failing to give statutory signals precluded the directing of a verdict for the defendant on the ground of contributory negligence, and required that the issue be submitted to the jury. Louisville & Nashville R.R. v. Ratliff's Adm'r, 260 Ky. 380, 85 S.W.2d 1006 (1935). Our Court in Baird v. Cincinnati, New Orleans & Texas Pac. Ry., supra, 315 F.2d at 722, cited Ratliff's Adm'r as authority for the proposition that a motorist has a right to rely on the train crew to give statutory signals. After reviewing the evolution of this rule, the Court in Hargadon held that the rule in Kentucky is no longer that the question of contributory negligence must be submitted to the jury where there is substantial evidence of a failure to give the statutory signals. It was stated:
64
'What the law demands of the railroad cannot be decisive, or even materially helpful, in determining what the ordinarily prudent man in the position of the traveler would or would not do at a particular crossing at a particular time. This can be judged fairly only if it is judged separately, and on the same basis as any other case of contributory negligence.' Hargadon v. Louisville & Nashville R.R., supra, 375 S.W.2d at 837.
65
There can be no doubt today that the failure of a train crew to give statutory warnings is only one circumstance among a totality of circumstances to be considered, and such failure in no way diminishes the duty of the traveler to exercise reasonable care in crossing a railroad track. Cincinnati, New Orleans & Texas Pac. Ry. v. Ferguson, 385 S.W.2d 947 (Ky.1964); see Meadows v. Chesapeake & Ohio R.R., 412 S.W.2d 233, 235 (Ky.1967); Louisville & Nashville R.R. v. Dunn, 380 S.W.2d 241, 245 (Ky.1964); Chesapeake & Ohio Ry. v. Trimble, 306 S.W.2d 310, 312 (Ky.1957).
66
In Louisville & Nashville R.R. v. Fisher, 357 S.W.2d 683, 687 (Ky.App.1962), the Court cited three of its more recent cases and said:
67
'The above three cases have effectively overruled or at least limited the authority of Louisville & N.R. Co. v. Ratliff's Adm'r, 260 Ky. 380, 85 S.W.2d 1006; * * *.'
68
The decisions of the Court of Appeals of Kentucky in Fisher and Hargadon have thus weakened Baird's reliance on Ratliff's Adm'r. We are bound by the latest pronouncements of the Kentucky Courts.
69
Appellee has urged that two recent Kentucky cases demonstrate that the rule in Kentucky is that contributory negligence is always a jury question. We disagree. It is a legal axiom that any fact about which reasonable men can reasonably disagree is a question for the jury. If reasonable men could reasonably disagree about whether a plaintiff who was injured at a railroad crossing was contributorily negligent, then clearly the issue must be submitted to the jury; but if there is no room for disagreement, a verdict must be directed. The cases cited by appellee do not support his position. Louisville & Nashville R.R. v. Worthington, 354 S.W.2d 755 (Ky.1962), affirmed the judgment of the trial court which had submitted the issue of contributory negligence to the jury. The jury returned a verdict for the plaintiff. The Court of Appeals of Kentucky relied on the fact that there was competent evidence that the railroad had the last clear chance to avoid the accident after it discovered plaintiff's peril. Once a finding was made that the railroad had the last clear chance, the negligence of the plaintiff was not a defense. Our case does not involve last clear chance.
70
The rule for this Court to follow in determining whether the decedent was contributorily negligent as a matter of law was best stated in Louisville & Nashville R.R. v. Troutman, supra, 351 S.W.2d at 519:
71
'Where there is reasonable room for a difference of judgment upon positive or inferential facts, the question of contributory negligence is for the jury. But when evidence in a given case is susceptible if only one reasonable inference with respect to a controlling issue, the question becomes a matter of law for decision of the court. In the present case the conditions surrounding the crossing and the facts of the accident are without contradiction. We conclude that the trial court should have directed a verdict for the defendant on the ground of contributory negligence of the plaintiff's decedent.'
72
Nor is appellee aided by Louisville & Nashville R.R. v. Quisenberry, 338 S.W.2d 409 (Ky.1960). As the Court there stated:
73
'The testimony and exhibits disclose that this was a highly dangerous crossing and was so constructed that neither the engineer nor the decedent had enough time to do anything to prevent the accident after they came within view of each other.' Id. at 410-411.
74
Under the circumstances of that case it is clear that failure by the train crew to give audible warnings had a very direct bearing on whether decedent was exercising due care when he crossed the track. It was a jury question whether such warnings were given and, therefore, a jury question whether decedent was exercising due care.
75
We conclude that the District Court erred in not directing a verdict in favor of the railroad. The judgments are reversed and the cause is remanded with instructions to dismiss the complaint.
1
Illinois Central Railroad Company was using the tracks of Paducah & Illinois Railroad Company pursuant to an agreement between the two railroad companies
2
Plaintiff's witness, Colson, estimated the train speed at 35 miles an hour
3
Kentucky Revised Statutes 277.190 provides:
'Bell to be rung or whistle sounded at crossings. Every railroad company shall provide each locomotive engine running over any of its lines with a bell of ordinary size and a whistle. The bell shall be rung or the whistle sounded, outside of cities, at a distance of at least fifty rods from the place where the track crosses upon the same level any highway or crossing at which a signboard is required to be maintained, and the bell shall be rung or the whistle sounded continuously or alternately until the engine has reached the highway crossing. In cities such signals shall be given as the legislative body of the city requires.'
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In
The
Court
of Appeals
Sixth
Appellate District of Texas at Texarkana
______________________________
No. 06-11-00107-CV
______________________________
METROPLEX MAILING SERVICES, LLC,
Appellant
V.
DALLAS COUNTY, ET AL., Appellees
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court
No. TX-09-31273
Before Morriss, C.J.,
Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Metroplex Mailing Services, LLC, the sole appellant in this
case, has filed a motion seeking to dismiss its appeal.[1] Pursuant to Rule 42.1 of the Texas Rules of
Appellate Procedure, the motion is granted.
Tex. R. App. P. 42.1.
We
dismiss the appeal.
Bailey
C. Moseley
Justice
Date
Submitted: December 6, 2011
Date
Decided: December
7, 2011
[1]Originally
appealed to the Fifth Court of Appeals, this case was transferred to this Court
by the Texas Supreme Court pursuant to its docket equalization efforts. See
Tex. Gov’t
Code Ann. § 73.001 (West 2005).
span
class=MsoFootnoteReference>[1]McCarty
appeals from three convictions for aggravated sexual assault of a child, cause
numbers 06-09-00187-CR through 06-09-00189-CR.
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973 So.2d 865 (2007)
Janice Caraway STROUD, Plaintiff-Appellant
v.
Gregory Eugene STROUD, Defendant-Appellee.
No. 43,003-CA.
Court of Appeal of Louisiana, Second Circuit.
December 14, 2007.
*866 Smith & Jacobs by Edward Charles Jacobs, Springhill, for Appellant.
Kitchens, Benton, Kitchens & Black, by Paul Edward Kitchens, Minden, for Appellee.
Before WILLIAMS, STEWART and DREW, JJ.
STEWART, J
Janice Caraway Stroud ("Janice") appeals a judgment modifying a stipulated joint custody agreement and naming her ex-husband, Gregory Eugene Stroud ("Gregory"), the domiciliary parent of the parties' son. Because the evidence does not show that a material change in circumstances occurred or that modification would be in the child's best interest, we reverse the trial court's judgment and reinstate the prior joint custody plan.
FACTS
Since the parties divorced in 2000, Janice has been the domiciliary parent of their minor son, Gregory Ryan Stroud ("Ryan"), pursuant to a stipulated joint custody agreement and subsequent modifications. The first agreement is evidenced by a joint custody implementation plan that was signed by the trial court on May 18, 2000.
On July 28, 2000, Janice filed a rule to modify Gregory's visitation after he was arrested for a DUI, which allegedly occurred while Ryan, then age five, was in *867 the vehicle with him. We note this appears to have been a third offense DUI that was amended down to a second offense charge. Pursuant to the parties' stipulations, the trial court rendered a judgment modifying Gregory's visitation privileges, prohibiting him from driving any vehicle in which the child is a passenger, and requiring that visitation be conducted in the presence of the paternal grandmother, Sherry Bagwell. Gregory lived with his mother and step-father.
On February 7, 2001, Janice filed a petition seeking sole custody of Ryan. Janice alleged that she had remarried, was joining the U.S. Army, and would likely be stationed outside of Louisiana. She also based her claim on Gregory's criminal history, which allegedly included additional arrests in November 2000, for simple battery of a police officer and possession of marijuana; he pled guilty to both. In response, Gregory filed a reconventional demand seeking temporary custody of Ryan during Janice's military training with additional visitation time thereafter. Pursuant to the parties' stipulations, the trial court rendered a judgment maintaining joint custody but granting temporary custody of Ryan to Sherry Bagwell during Janice's military training and increasing Gregory's visitation.
While in the Army, Janice lived in Texas with Ryan. After receiving an honorable discharge, she returned to Louisiana. In the latter part of 2003, both parties filed rules for contempt regarding a disagreement over visitation. Considering the parties' stipulations, the trial court rendered a judgment on January 9, 2004, continuing joint custody with Janice remaining as the domiciliary parent. The judgment specified the periods of visitation for Gregory and rescinded the requirement for supervised visitation and the prohibition against Gregory driving a vehicle with Ryan in it.
On August 11, 2006, Gregory filed a petition for change of custody. He alleged that Janice had divorced her second husband, was living with another man, and had moved with Ryan at least seven times over the years. He further alleged that Ryan now desired to live with him and attend school near Sibley. Gregory also alleged that Ryan "is terrified of the threats and coercion he would receive while with his Mother, and desires . . . that the court permit him to remain living together with his Father" pending a hearing on the requested change in custody. Gregory asked to be named primary domiciliary parent of Ryan subject to visitation by Janice. Attached to the petition was an order providing that Ryan be allowed to continue living with his father and enroll in school pending a hearing. The trial court signed this ex parte order effecting a change in the custody of Ryan on August 11, 2006.
In opposing Gregory's petition to change custody, Janice requested sole custody and again raised Gregory's history of DUI offenses and the fact that he has no residence of his own as reasons why he should not be named the domiciliary parent. She claimed that Ryan's desire to live with his father was the result of "bullying" and "constant harassment" by him. She asked the court to appoint a mental health expert to examine the parties and make a custody recommendation. Also, she alleged that the trial court had improperly granted the ex parte custody order and demanded return of Ryan to her custody as required by the agreement of January 2004. A judge signed an order restoring custody to Janice in accordance with the parties' custody agreement, but the order was rescinded due to the ongoing custody dispute having already been assigned to another division.
In the months preceding the hearing, the trial court rendered three interim orders *868 maintaining Ryan in the physical custody of his father with weekend visitations for his mother. A trial was not conducted until May 29, 2007. Thus, Ryan completed the school year while living with his father.
After hearing the testimony of Ryan, Gregory, and Janice, the trial court ruled in Gregory's favor. Although the trial judge found Janice to be a good mother who had done nothing wrong and who had provided an adequate environment for Ryan, he concluded that the La. C.C. art. 134 factors were "more or less equal" between the parents. Therefore, the trial judge gave the child's preference to live with his father significant weight. He also considered the fact that Ryan had lived with his father during the last year in "a stable, adequate environment" as grounds for granting domiciliary custody to Gregory. To address Gregory's "drinking problem," the trial judge required that he place an ignition interlock device on any vehicle he drives and that he refrain from drinking or risk losing Ryan. A judgment setting forth a joint custody implementation plan in accordance with the trial court's ruling was signed on July 24, 2007. Janice's appeal followed.
DISCUSSION
In arguing for reversal of the trial court's judgment, Janice asserts that Gregory did not carry the burden of proof necessary to modify the stipulated joint custody arrangement that had been in effect between them. She also asserts that the trial court erred in basing its decision on the child's desire to live with his father and the fact that he did so for the school year preceding the trial as a result of the court's interim orders. Finally, she argues that the trial court erred in not considering the expert report.
As in every child custody determination, the primary consideration is the best interest of the child. La. C.C. art. 131; Adams v. Adams, 39,424 (La.App.2d Cir.4/6/05), 899 So.2d 726. When, as here, the parties consent to a custodial arrangement or agree to a stipulated judgment, the party seeking modification must prove both that there has been a material change in circumstances since the original custody decree, and that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731; Adams v. Adams, supra.
The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. Factors that may be considered are set forth in Article 134, but the court is not bound to make a mechanical evaluation of each. Rather, a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child. Wages v. Wages, 39,819 (La.App. 2d Cir.3/24/05), 899 So.2d 662. To begin, we will review the facts as established by the testimony.
Ryan's desire to live with his father was the only change in circumstance referred to by the trial court. Ryan, who was almost 13 at the time of trial, was asked to explain his reasons for wanting to live with his father. He referred to the friends he made at school and church, his recent baptism, his involvement in baseball, and his desire to play on the school's team. He described the home as a "nice place to live" with "a lot of room to do things." Ryan and Gregory testified that Ryan's grades and attitude about school were better since living with his father. However, the evidence showed no significant academic change and established that his grade point average was slightly higher when he lived with his mother. On cross-examination, Ryan explained that his *869 mother moved a lot when in the military but that she now stays home after having had a baby. Ryan admitted that he could attend church on weekends with his father and play sports at school where his mother lives if she regained domiciliary custody.
Gregory testified that he filed the petition to change custody after Ryan said that he wanted to stay with him. He denied bullying or coercing Ryan into this decision. They live with Gregory's mother and stepfather. Gregory said that Ryan is enjoying being a kid. He plays with friends and participates in sports and church activities. Ryan knows about his father's alcohol problems. Gregory admitted that he received more than one DUI citation. He claims that he has not wanted alcohol since Ryan has been living with him and that he will not have alcohol around Ryan. Gregory completed his probation and counseling, and he now "feels comfortable with it." However, he has not attended AA because of ball season; he claims he will get back to the meetings when ball season ends.
On cross-examination, Gregory denied that he is still drinking, and he testified that he would regain his license on July 22, 2007. Even though he lives with his mother and stepfather, Gregory asserted that he is financially able to support himself and Ryan. He admitted that Janice had never done anything to harm Ryan, that Ryan had never said anything bad about her, and that she is a good mother.
Janice testified about her moves over the years since her, divorce from Gregory. She had recently married her third husband, William Wincliff, had a baby, and is now a homemaker. Janice stated that she wants Ryan to be a part of her family and to be happy. While she would like for Ryan to have a good relationship with his father, she wants him to be safe, and she does not want him to become an alcoholic or drug abuser. She admitted that she does not communicate well with Gregory, but she claimed their relationship would be better if his mother did not interfere. Janice testified that during the year Ryan lived with Gregory, she "slacked off' on going to church due to being pregnant and giving birth, but she stated that Ryan attends church with her mother and cousins when he visits on weekends. Although she was told about Ryan's baptism, she did not attend. She also did not Attend some of his sports events due to having a newborn and living 45 miles away.
On cross-examination, she testified that she currently lives in the Springhill and Sarepta area where she grew up and where Ryan has family and friends. She stated that. Ryan could play sports at school in Springhill. She expressed the belief that Gregory still drinks and that he is unable to function on his own or raise a child. She referred to his addiction and past behavior, including multiple DUI's and one obtained while Ryan was with him, as reasons for her concern about Ryan living with Gregory.
The report of Sandi Davis, an expert appointed by the trial court, was admitted into evidence. Davis did not testify, and both parties claimed that she misinterpreted things they said to her. Her report consists of detailed reviews of sessions with Ryan, Janice, Gregory, and Sherry Bagwell, along with findings and recommendations. Davis concluded that Gregory should not be named the domiciliary parent. She cited his dependency on his mother and his history, which included a period of supervised visitation, as reasons. Davis also concluded that Sherry, not Gregory, had been Ryan's primary care-giver. She found no negativity in Janice's household or her parental ability.
*870 Janice argues that the trial court erred in not considering Davis's report. The trial judge stated that he had probably read the report before trial and that the parties believed Davis had not reached any strong conclusion. Davis was not called as a witness by either party. When Janice's counsel argued to the court that Davis presented two options for custodial arrangements but concluded that Gregory should not be designated domiciliary parent, the trial judge stated that he was an expert as well due to his years on the bench and that he did not give much credit to "these allegations that she's made in her report about she thinks this and she thinks that." After weighing and evaluating expert and lay testimony, the trial court is free to accept or reject the expert's opinion and may substitute his common sense and judgment when warranted by the record as whole. Warlick v. Warlick, 27,389 (La. App. 2d Cir.9/29/95), 661 So.2d 706; Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir.1993), writ denied, 623 So.2d 1340 (La. 1993). In this case, the record as a whole supports Davis's conclusion that Gregory should not be the domiciliary parent.
In his petition, Gregory alleged Ryan's desire to live with him as well as Janice's divorce, her living with another man, and her having moved seven times over the years with Ryan as grounds for modification. At the time of trial, Janice had remarried and given birth to Ryan's half-brother. While the various moves over the years, as well as Janice's new marriage and child, were changes that had occurred, they were not shown to be material changes affecting Ryan's welfare. The trial court found and the record establishes that Janice provided an adequate environment for Ryan. Therefore, the alleged changes do not justify a modification of custody.
The only change in circumstance referred to by the trial court was Ryan's preference to live with his father. We have observed that a child's preference to live with a particular parent is not by itself sufficient to justify a change in custody. Lunsford v. Lunsford, 545 So.2d 1279 (La. App. 2d Cir.1989). In Lunsford, supra, this court reversed the trial court's modification of joint custody in favor of the father upon finding that the factors underlying the children's preference to live with their father did not justify a change in custody absent a showing of inadequacy in the environment provided by the mother. The factors included the children's love and affection for their father and stepmother, as well as their father's larger home and greater financial resources.
Gregory cites Wages, supra, as support for his argument that the trial court did not err in giving significant consideration to Ryan's desire to live with his father. In Wages, supra, the child was 16 and had asked his mother for the opportunity to live with his father during his last two years before college. The mother refused the request and litigation ensued. The trial court applied the burden of proof for modification of considered decrees as set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), and concluded that the father did not overcome the burden. On appeal, this court concluded that the Bergeron burden did not apply and reversed in favor of the father under the less stringent burden of proof for stipulated judgments. The opinion makes clear that at issue was the preference of a "mature and grounded teenager," who expressed an "adamant and convincing desire" to live with his father while finishing his last two years of high school. Given that the factors of La. C.C. art. 134 were equally balanced between the parents, this court found the young man's preference to *871 be entitled to great weight under the specific facts presented.
Although Ryan has expressed the preference to live with his father, the record does not show him to be of an age or level of maturity at which his choice should be controlling, particularly considering there was no evidence that his mother provided an inadequate environment for him. At the time of trial, Ryan was still 12, but soon to turn 13. His main reasons for wanting to continue living with his father were friends, the school and church he attended, and sports. These are not the considered reasons of mature teenager who wishes to spend time with his father before leaving home for college. While friends, church, and extracurricular activities are important to a child, they are not legally sufficient to justify a change in custody in this case where other significant concerns exist and where the custodial parent has provided a suitable home for the child.
The record shows that Gregory has a troubling history of alcohol abuse and related criminal offenses. Although he testified that he has not had any alcohol since Ryan has lived with him, his testimony that he has not attended AA due to ball season and his claim that he now feels comfortable suggests that he does not take his drinking problem seriously. The trial court's judgment, which prohibits Gregory from drinking and requires the installation of an ignition interlock device, also shows some naivete with regard to Gregory's alcoholism and its potential impact on Ryan. Gregory has not been on his own since the divorce. Although he was gainfully employed at the time of trial and able to provide a home for Ryan with his parents, Gregory's living situation and history raise concerns about his ability to care for Ryan on his own. The record suggests that much of Ryan's care is provided by his grandparents.
The trial court referred to the fact that Ryan had been in a stable environment for the last year while living with his father. Janice argues that this should not have been considered by the trial court, because Gregory's custody was the result of non-prejudicial interim orders. Any relevant factor affecting the child should be considered in making a custody determination. This would include Ryan's living situation prior to trial. However, the trial court's initial rendering of the ex parte interim order on August 11, 2006, allowing Ryan to remain in his father's custody and enroll in school contrary to the parties' joint custody agreement, raises concerns about how this matter was handled.
Ex parte orders of temporary custody are authorized under La. C.C.P. art. 3945(B) only when the following requirements are satisfied:
(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.
(2) The applicant's attorney certifies to the court, in writing, either:
(a) The efforts which have been made to give the adverse party reasonable notice of the date and time such order is being presented to the court.
(b) The reasons supporting his claim that notice should not be required.
Thus, issuance of an ex parte temporary custody order requires specific and verified allegations of immediate and irreparable injury to the child. Trettin v. Trettin, 37,260 (La.App. 2d Cir.3/17/03), 839 So.2d 1272. An ex parte order that does not comply with the provisions of La. C.C.P. art. 3945 is null and void. La. C.C.P. art. 3945(E). See also Tabuchi v. Lingo 588 *872 So.2d 795 (La.App. 2d Cir.1991), stating, "It is well-settled that an ex parte custody order granted by a trial judge without notice, service of pleadings, and without affording a hearing to the parent having custody of the child is null and without effect."
The trial court's ex parte interim order of custody signed on August 11, 2006, is not in compliance with the provisions of La. C.C.P. art. 3945. There were no verified, specific facts showing that immediate and irreparable injury would result to Ryan before a hearing, nor did Gregory's attorney certify that any efforts were made to give Janice notice of the date and time the order was to be presented to the court or reasons that such notice should not be required. Thus, the trial court erred in granting the ex parte temporary custody order. The trial court's actions needlessly upset the parties' custody agreement and further disrupted Ryan's life by allowing a change in custody that was not warranted under the circumstances. Court's must abide by the appropriate procedures and laws when presiding over custody disputes in order to avoid unnecessary changes in custody and to ensure that only the best interests of the children caught in the middle are served.
We recognize that the trial court's decision in a child custody dispute is entitled to great weight and not to be disturbed on appeal unless an abuse of discretion is clearly shown. Goodwin, supra; Lunsford, supra. However, after closely reviewing the record, we find that the trial court abused its discretion in modifying the parties' stipulated joint custody arrangement without the burden of proof having been met. Gregory did not prove either a material change in circumstances since the original stipulated judgment or that the proposed modification would be in Ryan's best interest. Accordingly, we reverse the trial court's judgment and reinstate the joint custody implementation plan rendered in open court on December 9, 2003, and signed January 9, 2004, to take effect as of the date of this opinion with the parties to abide by the following Christmas visitation schedule provided in the plan:
CHRISTMAS: The Christmas holiday will be divided into two (2) periods, with Period "A" beginning at 6:00 p.m. on the date on which school is dismissed for the Christmas holiday and extending until 2:00 p.m. on December 25 and Period "B" beginning at 2:00 p.m. on December 25 and extending until 6:00 p.m. on the day before school again commences. MS. DAVIS shall have the custody of RYAN during Period "A" in the year 2003 and every odd-numbered year thereafter, with MR. STROUD having Period "B" in the year 2003 and every odd-numbered year thereafter, with the periods rotated between the parties each year thereafter.
This means that Janice will have custody of Ryan for the first part of the 2007 Christmas holiday (Period "A") and that Gregory will have Ryan for the second part of the holiday (Period "B") until 6:00 p.m. on January 6, 2008, the day before school commences. At that time, Janice will regain domiciliary custody of Ryan and the plan agreed to on December 9, 2003, will continue, in effect.
CONCLUSION
For the reasons expressed, the trial court's judgment is reversed and the parties' joint custody implementation plan is reinstated as set forth above. Costs of appeal are assessed to Gregory Eugene Stroud, appellee.
REVERSED.
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BRUCE X. COOPER, : No. 824 MAL 2016
:
Petitioner :
: Petition for Allowance of Appeal from
: the Order of the Commonwealth Court
v. :
:
:
DEPARTMENT OF CORRECTIONS, :
RANDALL BRITTON, DORINA VARNER, :
JOEL KELLER, AND BRIAN CORBIN, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 3rd day of April, 2017, the Petition for Allowance of Appeal is
DENIED.
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231 F.3d 82 (2nd Cir. 2000)
CONOPCO, INC., Plaintiff-Appellant, v.ROLL INTERNATIONAL and PARAMOUNT FARMS, INC., Defendants-Appellees.
Docket No. 00-7012August Term, 1999
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
Argued: June 2, 2000Decided: November 03, 2000
Appeal from a judgment of the United States District Court for the Southern District of New York (Chin, J.), dismissing appellant's complaint for failure to state a claim upon which relief may be granted.
1
AFFIRMED. [Copyrighted Material Omitted]
2
ROBERT F. SERIO, Gibson Dunn & Crutcher, LLP, New York, NY (Thomas C. Sheehan, of counsel), for Plaintiff-Appellant.
3
ANDREW S. CLARE, Loeb & Loeb, LLP, Los Angeles, CA (Lawrence B. Gutcho, of counsel, P. Gregory Schwed and Maria L. Zanfini, Loeb & Loeb, New York, NY, of counsel, Hillel Chodos, Los Angeles, CA, of counsel), for Defendants-Appellees.
4
Before: McLAUGHLIN, PARKER, Circuit Judges, and DORSEY, District Judge.*
5
Judge Dorsey dissents in a separate opinion.
McLAUGHLIN, Circuit Judge:
BACKGROUND
6
This civil procedure morass arises from the sale by Conopco, Inc. d/b/a Lipton ("Conopco") of its Sunkist brand fruit roll snack business to Roll International Corporation ("Roll") and Roll's wholly-owned subsidiary Paramount Farms, Inc. ("Paramount"). Under a purchase agreement signed in June 1995 (the "Purchase Agreement"), Conopco agreed to transfer its existing fruit roll inventory (the "Inventory") to Roll at a closing date one month later. When the Purchase Agreement was signed, the book value of the Inventory was $3,060,000, but this figure was stale because it had not been updated since December 1994. The parties therefore agreed that the purchase price would be adjusted at the closing to reflect any subsequent change in the Inventory's value.
7
Section 2.5 of the Purchase Agreement entitled "Post Closing Inventory Adjustment," also provided that, within 30 days after the closing, Conopco would deliver to Roll a statement of the book value of the Inventory confirming that a physical count of the Inventory had been conducted by Conopco on the closing date (the "Closing Date Inventory Statement"). Unless Roll then notified Conopco of any objections within 30 days of receipt of the statement, in writing, the Closing Date Inventory Statement would become final and binding. If Roll did object within the 30 days, and the parties were unable to resolve their differences, § 2.5 required them to submit to binding arbitration.
8
The sale closed successfully on July 28, 1995. But the parties' relationship soured when Conopco delivered a Closing Date Inventory Statement to Roll claiming that Roll owed an additional $2,452,634 based on the value of the Inventory at closing (the "Inventory Adjustment Claim"). Roll challenged this claim and settlement negotiations ensued.
9
In early 1997, Roll and Paramount notified Conopco that they would neither arbitrate nor settle the Inventory Adjustment Claim. Roll never paid Conopco any portion of the $2,452,634, and the parties never submitted the claim to an arbitrator.
10
As it turned out, the Inventory Adjustment Claim was the least of Conopco's problems. In December 1996, Roll and Paramount had already sued Conopco and its parent company, Unilever United States, Inc., in California Superior Court (the "California Action") seeking to rescind the Purchase Agreement. The plaintiffs there alleged that Conopco and Unilever had breached numerous representations and warranties in the Purchase Agreement and had fraudulently misrepresented the fruit roll business's sales and expense figures.
11
Most significantly, in its answer in the California Action, Conopco did not assert its Inventory Adjustment Claim as a set-off to any claims raised by Roll or Paramount. Nor did it file a cross complaint.1 Indeed, Conopco failed to raise the issue until May 1998 - almost 1½ years later and only 3 months before the trial was scheduled to start - when it moved to compel arbitration of the Inventory Adjustment Claim or, in the alternative, for leave to file an untimely cross complaint.
12
The next month, the California Superior Court denied both prongs of Conopco's motion. The trial court held that Conopco had waived its right to arbitrate; and it rejected Conopco's contention that its failure to plead its Inventory Adjustment Claim had been in good faith. Commenting acidly that, "to say that the defendant has been dilatory in asserting the cross-complaint . . . is an understatement," the California court refused to grant Conopco leave to file an untimely cross-complaint in light of the "substantial prejudice to the court and the plaintiff."
13
Conopco appealed the denial of its motion to compel arbitration. In the alternative, it sought a "writ of mandate" from the California Court of Appeal compelling the trial court to allow the filing of its untimely cross-complaint.2 The Court of Appeal: (1) affirmed the denial of Conopco's motion to compel arbitration; and (2) refused to issue the writ of mandate, declining to hear the appeal of the cross complaint ruling until a final judgment was entered by the trial court.
14
Needless to say, Conopco was not pleased. It filed the instant diversity action against Roll and Paramount in the Southern District of New York in March 1999, alleging breach of contract and unjust enrichment. The defendants moved under Fed. R. Civ. P. 12(b)(6) to dismiss the complaint. They argued that: (1) California Code of Civil Procedure § 426.30 (the compulsory cross-complaint provision) barred Conopco from asserting its Inventory Adjustment Claim in this action; (2) Conopco's waiver of its right to arbitrate its Inventory Adjustment Claim barred it from asserting that claim here; and (3) the action should be dismissed or stayed in deference to the pending California Action.
15
Conopco opposed the motion, maintaining that the California compulsory cross-complaint statute has no extraterritorial effect and, even if it did, it would not operate to bar Conopco from asserting its Inventory Adjustment Claim in a subsequent action until a final non-appealable judgment was entered in California.
16
On November 16, 1999, the district court granted the defendants' motion to dismiss. See Conopco, Inc. v. Roll Int'l Corp., 75 F. Supp. 2d 196 (S.D.N.Y. 1999). Giving full faith and credit to the order of the California Superior Court, see 28 U.S.C. § 1738, the district court held that: (1) Conopco's Inventory Adjustment Claim should have been asserted as a compulsory cross-complaint in the California Action pursuant to Cal. Civ. P. Code § 426.30; and (2) that, by failing to file a timely cross-complaint, or to successfully obtain leave to file an untimely cross-complaint, Conopco was precluded from raising the claim in a subsequent action, whether or not a final non-appealable judgment had been entered in the California Action. See id., at 198-201.
17
In the meantime, about three months before the district court order, Conopco, Roll and Paramount had entered into a settlement agreement in the California Action on August 3, 1999. That settlement agreement provided that: (1) Roll and Paramount's claims, other than their claim for rescission of the Purchase Agreement, were settled for $22 million; (2) if the California court held, after a bench trial, that Roll and Paramount were entitled to rescission, they would be paid an additional $18 million subject to a reversal on appeal; (3) if the California court held that Roll and Paramount were not entitled to rescind the Purchase Agreement, no further money would be paid; and (4) the parties agreed to cooperate in the sale of the fruit roll business and to split the proceeds equally.
18
Thereafter, the California Superior Court held that Roll and Paramount were entitled to rescind the Purchase Agreement as a result of Conopco's fraudulent representations and warranties. On November 29, 1999, a final judgment in favor of Roll and Paramount, incorporating the settlement agreement by reference, was entered by the California trial court. On January 19, 2000, Conopco filed a notice of appeal, appealing the final judgment and also the June 11, 1995 order denying its motion for leave to file an untimely cross-complaint.3 Conopco's state court appeal is still pending before the California Court of Appeal.
19
Back in the federal arena, Conopco now appeals from the district court's dismissal of its complaint. It contends that: (1) the district court erred by applying Cal. Civ. P. Code § 426.30 because Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny require federal courts sitting in diversity to apply federal procedural rules; and (2) even if it were proper to apply the California statute, the district court erroneously held that Conopco was barred from asserting its Inventory Adjustment Claim absent a final non-appealable judgment in the California Action.
20
For the reasons set forth below, we affirm.
DISCUSSION
21
We review a district court's dismissal of a complaint for failure to state a claim de novo. See Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir. 1999). Dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate when a defendant raises claim preclusion or, as here, statutory waiver and bar as an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law. See Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (claim barred by res judicata); United States v. Eastport S.S. Corp., 255 F.2d 795, 802 (2d Cir. 1958) (claim barred by compulsory counterclaim statute).
22
All parties agree that Conopco's Inventory Adjustment Claim should have been raised as a compulsory cross-complaint in the California Action. Therefore, the only issues before us are: (1) whether we are required to apply Fed. R. Civ. P. 13(a) or the California compulsory cross-complaint statute in determining the viability of Conopco's claims; and (2) whether Conopco's claims are barred under the applicable statute even though the judgment in the California Action is currently pending appeal.4
I. Applicable Law
23
Conopco asserts that federal courts sitting in diversity are required under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny, to apply Fed. R. Civ. P. 13(a) to determine whether a party is precluded from raising in federal court a claim that should have been raised as a compulsory counterclaim in a prior state proceeding. We disagree.
24
The Full Faith and Credit Act provides that "judicial proceedings of any court of any [] State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." 28 U.S.C. § 1738. To qualify for full faith and credit under the Act, the "state proceedings need do no more than satisfy the minimum procedural requirements of the Fourteenth Amendment's Due Process Clause." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481 (1982). If the proceedings of a state trial court comported with due process, every federal court must afford the final judgment entered therein the same preclusive effect it would be given in the courts of that state. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 85 (1984); Kremer, 456 U.S. at 466; Allen v. McCurry, 449 U.S. 90, 95 (1980); Jacobson v. Fireman's Fund Ins. Co., 111 F.3d 261, 265 (2d Cir. 1997); Doctor's Assocs. v. Distajo, 66 F.3d 438, 446 (2d Cir. 1995).
25
To determine the effect of a state court judgment, federal courts, including those sitting in diversity, are required to apply the preclusion law of the rendering state. See Migra, 465 U.S. at 81; Jacobson, 111 F.3d at 265; Doctor's Assocs., 66 F.3d at 446-47. "Federal courts may not 'employ their own rules . . . in determining the effect of state judgments,' but must 'accept the rules chosen by the State from which the judgment is taken.'" Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373 (1996) (quoting Kremer, 456 U.S. at 481-82).
26
Although these principles have traditionally been applied with respect to the affirmative defenses of res judicata (claim preclusion) and collateral estoppel (issue preclusion), we join the majority of our sister circuits in extending them to the cognate affirmative defense of statutory waiver and bar of a compulsory counterclaim. See, e.g., Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1249, 1253-54 (9th Cir. 1987); H.E. Brannan v. Eisenstein, 804 F.2d 1041, 1044 (8th Cir. 1986); Fox v. Maulding, 112 F.3d 453, 456-57 (10th Cir. 1997) (addressing both res judicata and compulsory counterclaim statute); see also Oberman v. Weiner (In re Crispo), No. 96 B 42570 (JLG), 1997 WL 258482, at *5, 8, 12 (Bankr. S.D.N.Y. 1997) (same); Cohen v. Shea, 788 F. Supp. 66, 67-69 (D. Mass. 1992) (same); James Fleming, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure § 11.14, at 560 (2d ed. 1977) ("[T]he scope of preclusion" resulting from the application of a compulsory counterclaim statute "is determined by the law of the court in which the judgment was rendered.") (citing Restatement (Second) of Conflict of Laws §§ 94, 95).
27
Under 28 U.S.C. § 1738, we are required to give full faith and credit to the final judgment entered in the California Action. The parties do not contest that the court had both in personam and subject matter jurisdiction. In addition, the parties were given notice and an opportunity to be heard with respect to the claims against them. Although Conopco has appealed the final judgment, and with it, the denial of its motion to file an untimely cross-complaint, Conopco has never contended that it was in any way denied its due process rights.
28
Nevertheless, the dissent concludes that Conopco was denied due process because the California trial court wrongly denied its motion to file an untimely cross-complaint absent evidence of bad faith. Apart from the fact that Conopco itself has made no such due process claim, this analysis is difficult to embrace. First, a de novo review of the California trial court's decision is not properly within the scope of our appellate jurisdiction. Second, even if the trial court's decision were erroneous, it would not create a due process claim on behalf of Conopco. It is black-letter law that due process guarantees a fair hearing, not a legally correct outcome. See Collins v. City of Harker Heights, Texas, 503 U.S. 115, 129 (1992); Lavine v. Milne, 424 U.S. 577, 587 (1976) ("The Fourteenth Amendment does not guarantee that all decisions by state officials will be correct . . . ."); Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 144 (2d Cir. 1994); Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 25 n.7 (1978) ("The Due Process Clause does not guarantee a correct or [even] a courteous resolution of every dispute.") (Stevens, J., dissenting); Del's Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344, 1350 (7th Cir. 1986) ("Due process does not guarantee correct outcomes in every case; that would make every error of state law that deprived a person of liberty or property a federal constitutional error, which is an absurd proposition.") (citation omitted); Laurence H. Tribe, American Constitutional Law 666 (2d ed. 1988); 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 17.8, at 100 (3d ed. 1999). Accordingly, the trial court's judgment is entitled to the full faith and credit guaranteed by 28 U.S.C. § 1738.
29
We must therefore look to California law to determine whether entry of the state court judgment precludes Conopco from raising its Inventory Adjustment Claim in a subsequent action.5 See Migra, 465 U.S. at 81; Jacobson, 111 F.3d at 265; Doctor's Assocs., 66 F.3d at 446-47.
II. Preclusive Effect in California
30
The California law applicable to this dispute is section 426.30(a) of the California Code of Civil Procedure, the state's compulsory cross-complaint provision. That statute provides in pertinent part:
31
[I]f a party against whom a complaint has been filed and served fails to allege in a cross complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.
32
A compulsory cross-complaint must be filed "before or at the same time as the answer to the complaint." Cal. Civ. P. Code § 428.50. Failure to file a timely cross complaint results in a waiver and bar of that cause of action unless the trial court grants the defendant leave to file an untimely cross-complaint pursuant to § 426.50. See Carroll v. Import Motors, Inc., 39 Cal. Rptr. 2d 791, 795 (Ct. App. 1995); Gherman v. Colburn, 140 Cal. Rptr. 330, 339 (Ct. App. 1977).
33
Upon the defendant's motion, the trial court must grant leave to file an untimely cross-complaint if the defendant can demonstrate that his failure to plead was in good faith. See Cal. Civ. P. Code § 426.50; id. § 426.30, leg. comm. cmt. (1973); Silver Org. Ltd. v. Frank, 265 Cal. Rptr. 681, 683 (Ct. App. 1990); Gherman, 140 Cal. Rptr. at 339-40. However, leave may not be granted once a judgment has been entered on the underlying complaint. See City of Hanford v. Superior Court, 256 Cal. Rptr. 274, 278 (Ct. App. 1989).
34
Conopco concedes, as it must, that its Inventory Adjustment Claim constituted a "related cause of action," Cal. Civ. P. Code § 426.10, which it had against Roll and Paramount "at the time of serving [its] answer to the complaint" in the California Action, Cal. Civ. P. Code § 426.30. It further admits that it failed to file such claim as a compulsory cross-complaint at the time it filed its answer in the California Action. Therefore, absent permission from the trial court to file an untimely cross-complaint, Conopco's Inventory Adjustment claim was waived and statutorily barred as of the time it filed its answer.
35
Conopco filed a motion pursuant to Cal. Civ. P. Code § 426.50 seeking leave to file an untimely cross-complaint; but the trial court refused to lift the bar. The court concluded that granting the motion so close to trial would cause "substantial prejudice to the court and the plaintiff," and apparently found that Conopco's dilatory tactics were not in good faith. Thereafter, the California Court of Appeal denied Conopco's petition for a writ of mandate directing the trial court to allow the cross-complaint.
36
A final judgment against Conopco was entered by the trial court on November 29, 1999. Therefore, under California law, the trial court no longer has the discretion to permit the filing of an untimely cross-complaint, and Conopco is barred from asserting its Inventory Adjustment claim in any subsequent action. See Cal. Civ. P. Code §§ 426.30(a), 426.50; City of Hanford, 256 Cal. Rptr. at 278 ("Once judgment is entered, the party cannot assert his or her unpleaded claim in a separate lawsuit."); Robert I. Weil & Ira A. Brown, Jr., California Practice Guide: Civil Procedure Before Trial § 6:520 (2000). A California court would be required to dismiss any complaint filed in violation of § 426.30(a). See Cal. Civ. P. Code §§ 436(b), 581(f)(3); Carroll, 39 Cal. Rptr. at 796. Accordingly, because 28 U.S.C. § 1738 requires us to afford the California judgment the same preclusive effect it would be given in the courts of that state, Conopco's federal claims must be dismissed.6
37
Conopco argues, and the dissent is persuaded that, by analogy to California's res judicata doctrine, the statutory bar does not take effect until the trial court's judgment has been affirmed on appeal. We agree with the district court that this argument is without merit. It is true that (in stark contrast to the rules in federal court and the vast majority of states) California does indeed require that a judgment be both final and non-appealable (i.e., the appellate process has concluded or the time in which to appeal has passed) before it will earn res judicata or collateral estoppel effect. See Wright v. Turner (In re Turner), 204 B.R. 988, 992 (B.A.P. 9th Cir. 1997); Lucido v. Superior Court, 795 P.2d 1223, 1225 (Cal. 1990); McKee v. Nat'l Union Fire Ins. Co., 19 Cal. Rptr. 2d 286, 289-90 (Ct. App. 1993); Cal. Civ. P. Code §§ 577, 1049, 1908; 7 B.E. Witkin, California Procedure: Judgment §§ 307, 309, 312 (4th ed. 1997). However, this odd "finality" requirement is a quirk of California res judicata jurisprudence. It is not a requirement of its compulsory cross-complaint statute.7
38
As correctly noted by the district court, the language of Cal. Civ. P. Code § 426.30 does not support Conopco's argument. By its own terms, the California statute, entitled "Waiver of related cause of action," is based on principles of waiver and estoppel - not res judicata. Cal. Civ. P. Code § 426.30; see Carroll, 39 Cal. Rptr. 2d at 795 (referring to § 426.30(a) as a "waiver provision"); accord Currie Med. Specialties, Inc. v. Bowen, 186 Cal. Rptr. 543, 545 (Ct. App. 1982); Hon. James R. Lambden, et al., 1 California Civil Practice § 9:111 (1992) (defendant's "waiver" of claims by failing to comply with § 426.30(a) results in a statutory "bar"). The key to removing the statutory bar during the pendency of the action is the ability of the defendant to prove his good faith. See Cal. Civ. P. Code § 426.50; id. § 426.30, leg. comm. cmt. (1973); Silver Org. Ltd. v. Frank, 265 Cal. Rptr. 681, 683 (Ct. App. 1990); Gherman, 140 Cal. Rptr. at 339. Therefore, although the statute is admittedly a cousin of res judicata, see Hulsey v. Koehler, 267 Cal. Rptr. 523, 526 (1990) (like res judicata, § 426.30 is a defense that must be specially pleaded or else is waived), it creates a separate affirmative defense, in addition to that of res judicata, see Flickinger v. Swedlow Engineering Co., 289 P.2d 214, 216-18 (Cal. 1955), that is not based on the principle that all available causes of action merge into a final judgment. See AL Holding Co. v. O'Brien & Hicks, Inc., 89 Cal. Rptr. 2d 918, 920 (Ct. App. 1999) (barring claim not asserted in compulsory cross-complaint where complaint in first action was voluntarily dismissed by plaintiff); Carroll, 39 Cal. Rptr. 2d at 795 (applying bar even though initial action was still pending); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1417, at 133 (2d ed. 1990) (statutes based on theories of waiver or estoppel arising from a litigant's culpable conduct in failing to assert a compulsory counterclaim provide "a more apposite and useful approach to the problems of omitted counterclaims than does the doctrine of claim preclusion"); Fleming & Hazard, supra, § 11.14, at 559 (unlike res judicata, a compulsory counterclaim rule "ordinarily applies even if the first action was not decided on the merits, so that defendant will be barred simply by failing to assert his counterclaim, however the plaintiff's claim may be determined"). Conopco and the dissent simply refuse to recognize this pivotal distinction.
39
California has a separate statute expressly addressing the res judicata effect to be accorded a final judgment. See Cal. Civ. P. Code § 1908. Notably, the compulsory cross-complaint statute makes no reference whatever to a "final judgment," nor does it in any way cross-reference the res judicata statute. There is simply no support for Conopco's argument to be found in the relevant provisions of the California Code of Civil Procedure.
40
No California court addressing a defendant's failure to comply with § 426.30 has required the trial court's judgment to have been affirmed on appeal (or the time for appeal to have expired) prior to applying the statutory bar. Moreover, in City of Hanford, the California Court of Appeal squarely rejected the interpretation suggested by Conopco in this regard. With respect to compulsory cross-complaints, the court stated: "If the claim has not been pleaded by the time the case goes to trial, judgment in the underlying action will bar later recovery by the party on the related claim." City of Hanford, 256 Cal. Rptr. at 278. For purposes of § 426.30(a), the Court of Appeal defined the term "judgment" as "the final determination in the trial court of the rights of the parties in an action or proceeding. Thus, entry of judgment on the original complaints was a final resolution in the trial court of the issues therein." Id. at 279 (citation omitted) (emphasis added).
41
Although Cal. Civ. P. Code § 428.50(c) provides that the trial court may grant leave to file an untimely cross-complaint "at any time during the course of the action," the Court of Appeal refused to interpret this section in accordance with the res judicata statute to deem the action pending until it is finally determined on appeal or until the time for appeal had passed. Id. at 278.8 Once the action has proceeded to judgment, the trial court no longer has discretion to lift the statutory bar prescribed by Cal. Civ. P. Code § 426.30(a). "It is immaterial that the action technically remains pending for other purposes (e.g., appeal)." Weil & Brown, California Practice Guide: Civil Procedure Before Trial at § 6:557.
42
Conopco's argument is unsupported by California law and it directly abrades Cal. Civ. P. Code § 426.30. As stated in Saunders v. New Capital for Small Businesses, Inc., 41 Cal. Rptr. 703 (Dist. Ct. App. 1964), the purpose of California's compulsory cross-complaint statute is "to provide for the settlement in a single action of all conflicting claims between the parties arising out of the same transaction and thus to avoid multiplicity of actions and conflicting judgments." Id. at 710 (internal citation omitted) (discussing predecessor statute). Conopco admits that it failed to raise its Inventory Adjustment Claim in a compulsory cross-complaint as required by Cal. Civ. P. Code § 426.30. The California Superior Court then refused to remove the statutory bar, finding evidence of good faith to be lacking. To permit Conopco to file its claims in federal court "would encourage just the kind of piecemeal litigation section 426.30 is intended to prohibit." Carroll, 39 Cal. Rptr. 2d at 795. We therefore decline to adopt the construction urged by Conopco. Conopco must look to the California Court of Appeal for relief from its waiver, and the resulting bar, of its Inventory Adjustment Claim.
CONCLUSION
43
We have considered the parties' remaining contentions and find them to be without merit. Accordingly, we AFFIRM the district court's order dismissing Conopco's complaint.
NOTES:
*
The Honorable Peter C. Dorsey, of the United States District Court for the District of Connecticut, sitting by designation.
1
Due to a peculiarity of California law, what are commonly known as counterclaims are referred to as cross-complaints.
2
Under California practice, an interlocutory order denying leave to file a cross-complaint is reviewable only upon appeal from the final judgment, or upon an application for an extraordinary writ, in this case a writ of mandate. See Cal. Civ. P. Code §§ 904.1 and 906; Foot's Transfer & Storage Co. v. Superior Court, 171 Cal. Rptr. 1 (Ct. App. 1980; Balding v. D.B. Stutsman, Inc., 54 Cal. Rptr. 717, 721 (Ct. App. 1966).
3
Upon the motion of Roll and Paramount, and without objection from Conopco, we agree to take judicial notice of the final judgment entered by the California Superior Court and the Notice of Appeal. See Fed. R. Evid. 201. As will be developed infra, the term "final judgment" means the judgment entered by a trial court that concludes all proceedings between the parties therein.
4
In light of the fact that judgment was subsequently entered in the California Action, at oral argument Conopco abandoned, as moot, its original argument that its claims were not barred until the action in the California trial court proceeded to judgment.
5
Conopco argues that Fed. R. Civ. P. 13 ought to control the analysis. However, Rule 13 simply does not enter the dispute. Neither Roll nor Paramount is seeking permission to file a counterclaim under Rule 13 and Conopco is not arguing that Roll or Paramount failed to file a compulsory counterclaim in this or any prior federal proceeding. The cases relied upon by Conopco are inapposite. See, e.g., Comm/Tech Communication Techs. v. Wireless Data Sys., Inc., 163 F.3d 149 (2d Cir. 1998) (per curiam) (holding that, when an action commenced in state court as an expedited action for payment on a note is removed to federal court, Fed. R. Civ. P. 13 governs the issue of whether defendant can assert counterclaims even though such claims would not have been allowed in state court).
6
Because a final judgment has now been entered in the California Action, we need not decide whether the district court correctly concluded that Conopco's claims would have been barred after its motion to file an untimely cross-complaint was denied but prior to the entry of judgment.
7
Nor is it, as the dissent suggests, a requirement in order to "trigger" our obligations to afford the trial court's judgment full faith and credit under 28 U.S.C. § 1738. The dissent has erroneously conflated the two-part analysis required under the Full Faith and Credit Act (i.e.: (1) whether, under federal law, the judgment is entitled to full faith and credit; and (2) what preclusive effect would the judgment be given under the law of the rendering state) into a single question by concluding that the trial court's judgment is not entitled to full faith under the Act because it does not satisfy California's res judicata finality requirement. The dissent's reliance on Baker v. General Motors Corp., 522 U.S. 222, 233 (1998), in support of its argument is misplaced. Nothing in Baker even suggests that a trial court's final judgment must have been upheld on appeal (or the time for appeal must have passed) before it will be entitled to full faith and credit under the Act.
8
The dissent erroneously relies on the definition of "final" judgment applicable solely to California's res judicata jurisprudence. Although the dissent is discomfited by the fact that, under California's compulsory cross-complaint statute, a defendant's unpleaded claims would be barred before a plaintiff's, we must "accept the rules chosen by the State from which the judgment is taken." Matsushita, 516 U.S. at 373 (internal quotation marks and citation omitted).
44
DORSEY, District Judge, dissenting from the majority opinion:
45
I respectfully dissent from my colleagues' decision. The California procedure at issue makes compulsory the filing of a cross-complaint to allege a claim related to a pending claim and bars a subsequent assertion of the claim in another action. See Cal.Civ.P.Code § 426.30. The majority would enforce that bar when there is a judgment in the case at the trial court level, on the basis of full faith and credit, despite an appeal of a denial of a request to file a late cross-complaint as permitted by Cal.Civ.P.Code § 426.50. Premature effect is thus accorded a state procedural statute, resulting in affirmance of an improper dismissal.
46
Fed.R.Civ.P. 13(a) is inapplicable as there was no failure to file a compulsory cross-complaint in any federal proceeding. The inquiry is correctly conducted as a full faith and credit analysis. However, absent the requisite finality of judgment under federal and California law, Conopco's claim in federal court should not be precluded based on full faith and credit. Accordingly, the case should be remanded for entry of a stay pending resolution of the California appeal and further proceedings that may follow upon that appeal.
I. Full Faith and Credit
47
The majority correctly states that, under the Full Faith and Credit Act, "[i]f the proceedings of a state trial court comported with due process, every federal court must afford the final judgment entered therein the same preclusive effect it would be given in the courts of that state." Where there is a final state court judgment, a federal court looks to the state's rules of res judicata and collateral estoppel to determine the preclusive effect of that judgment. SeeTown of Deerfield, New York v. FCC, 992 F.2d 420, 429 (2d Cir. 1993). To trigger the full faith and credit obligation requires a "final judgment." Baker v. General Motors Corp., 522 U.S. 222, 233 (1998) (emphasis added). Justice Ginsburg's use of the words "final judgment," not merely "judgment," should not be discounted. See id. By way of the descriptive "final," a judgment alone seemingly is not regarded as final for purposes of preclusion.
48
The Full Faith and Credit Act refers to "judicial proceedings," 28 U.S.C. § 1738, indicating a possible requirement, in certain circumstances, to extend full faith and credit despite the absence of a final judgment. For preclusion, however, a final judgment is required, as justice abhors forfeiture-a principle with which the majority does not, apparently, disagree.9 The majority, however, would cloak all judgments with the requisite finality, short of absolute finality, which the view here would require. The majority criticizes the dissent for conflating the two-part analysis required under the Full Faith and Credit Act, which requires first looking at whether the judgment is entitled to full faith and credit under federal law and then determining what preclusive effect the judgment would be given in the rendering state. However, the dissent is not, as the majority suggests, premised on the view that the trial court's judgment is not entitled to full faith and credit because it does not satisfy California's res judicata finality requirement. The view here is that federal law requires absolute finality before a claim can be precluded-a decision that is necessarily informed, but not controlled, by state law.
49
California first imposes the bar when an answer is served without alleging a cross-complaint. SeeCal.Civ.P.Code § 426.30. That is not final, however, as a filing non-compliant with § 426.30 must be permitted on a showing of good faith. See Cal.Civ.P.Code § 426.50. Rejection of a late filing would result in a bar at the trial court level but the right of appeal keeps the right to file open until an appeal is decided. That a federal court's full faith and credit obligation is statutorily, not constitutionally, imposed should not be overlooked as due process necessarily limits what a federal court is required to enforce.
II. Preclusive Effect in California
50
The majority necessarily likens § 426.30 to res judicata and collateral estoppel in order to weave compulsory cross-complaint statutes into the web of the preclusion doctrine. At the same time, it makes a fundamental distinction. While California law requires a final, non-appealable judgment for an action to be barred under res judicata or collateral estoppel, the majority holds that there is no such requirement for preclusion under § 426.30. Rather, the majority holds that the statutory bar takes effect immediately upon a defendant's failure to file a cross-complaint. Thus, once judgment enters, a federal court must apply this statutory bar. The disagreement here is as to when the full faith and credit obligation is triggered.
51
The majority concedes California's requirement of finality includes exhaustion of appeal rights for res judicata and collateral estoppel purposes, calling it a "quirk of California res judicata jurisprudence." It maintains that "this odd 'finality' requirement" is not required by § 426.30. No explicit authority is cited for this statement.
52
The majority's distinction between the theory of waiver and estoppel (engrafted onto § 426.30 as the basis for its bar) and claim/issue preclusion provides no answer to the full faith and credit issue. A person who is pursuing an appeal of a denial of the right to assert a claim can hardly be said to have finally waived-or be said to have acted so finally as to be estopped from asserting-the claim. The combination of requiring same subject claims to be filed as cross-complaints, Cal.Civ.P.Code §426.30, the right to a late filing of a cross-complaint if the party acted in good faith, Cal.Civ.P.Code §426.50, and the right to appeal, Cal.Civ.P.Code § 904, keep alive the right to assert a claim, and preclude finality of the bar until the right under those sections is exhausted. The majority would not accommodate the interplay among the three.
53
While California courts may, in some circumstances, apply the statutory bar absent a judgment in the underlying case or prior to a final, non-appealable judgment, such timing has no bearing on the determination of finality where the issue of denial of leave to file a cross-complaint is itself on appeal.10 Such denial is not sufficiently final for full faith and credit purposes before the initial case proceeds to judgment at the trial level.11 Similarly, there is no basis for finding the requisite finality after judgment but while the case and issue of denial are on appeal, especially given that California law generally considers a case pending, i.e., not final or conclusive, until the appeal process is exhausted. See, e.g., Cal.Civ.P.Code §§ 870, 1049. Whether or not California considers finality a prerequisite to rendering a claim irrevocably barred under § 426.30 does not control the federal requirement of finality for full faith and credit.
54
Generally, a judgment entered after trial seals a party's loss of its right to file a cross-complaint at the trial level. A party cannot seek to file a cross-complaint post-judgment. If the party never filed or sought leave to file a cross-complaint, such failure is then conclusively determined. The same rule would properly apply if such leave was sought and rejected, a judgment entered, and no appeal was taken, or if taken, was rejected. Then a federal court should, properly, grant full faith and credit to the trial court judgment and, accordingly, apply § 426.30- California's rule of preclusion as to compulsory cross-complaints. However, in the instant case, it has notbeen conclusively determined whether the cross-complaint can be filed. Indeed, it is an open question because the trial court's denial of leave to file said cross-complaint is on appeal, thereby negating the necessary finality. "A judgment is not 'final' as long as it remains subject to direct attack by appeal, by motion for a new trial, or motion to vacate the judgment." Sullivan v. Delta Air Lines, Inc., 15 Cal.4th 288, 303, 63 Cal.Rptr.2d 74, 83 (1997).
55
The propriety of the California trial court's denial of Conopco's motion to file an untimely cross-complaint is not the issue here. That question is presently before the California Court of Appeal and therefore has not been finally decided. Hopefully, the determination will be correct, whatever that is. When it is decided finally in California, whatever is decided can then properly determine the appropriate course to be followed as to Conopco's action in the District Court. Nor is the question whether the trial court's denial is of no effect until the appeal is decided. The view here is that the denial is inchoate in the sense that it is not a fully effective bar, for full faith and credit purposes, until the appeal is decided.
56
As the decision to deny leave to file a cross-complaint is currently on appeal, and the question of whether Conopco will be permitted to litigate the merits of its cross-complaint in California is still unresolved, even a liberal definition of "final" is not met.12 The majority holding and district court dismissal would be stripped of their basic underpinning if Conopco's appeal is sustained and the bar of § 426.30 is lifted. If a California trial court's cross-complaint rejection suffices to invoke full faith and credit even without exhaustion ofappeal rights, as the majority holds, such a rejection could be enforced even if it was unlawful on its face. For example, a trial court rejection of a request for late filing, notwithstanding a would-be cross-complainant's showing of unquestioned or unchallenged good faith, would be enforceable under the majority holding even if it was subject to appeal, which seemingly would surely be sustained.
III. Due Process
57
Even if the California trial court's decision to deny leave to file is deemed final for purposes of proceedings in the trial court, it is not entitled to full faith and credit unless it satisfies due process under the Fourteenth Amendment. See Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482 (1982). "A State may not grant preclusive effect in its own courts to a constitutionally infirm judgment, and other state and federal courts are not required to accord full faith and credit to such a judgment." Id. (footnote omitted).
58
Conopco has not been fully heard as required by California law:
59
A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court . . . shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.
60
Cal.Civ.P.Code § 426.50 (emphasis added). A motion to file a cross-complaint "must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result." Silver Org. Ltd. v. Frank, 217 Cal.App.3d 94, 99, 265 Cal.Rptr. 681, 683 (Ct. App. 1990) (holding that "substantial evidence" must support decision to deny leave) (emphasis added). Bad faith requires a finding of "dishonest purpose, moral obliquity, sinister motive, furtive design or ill will." Id. at 100, 265 Cal.Rptr. at 684. Mere delay is not enough to support a finding of bad faith. See id. at 98-101, 265 Cal.Rptr. at 683-85 (seeking to file cross-complaint a week prior to trial was insufficient evidence of bad faith). See also Foot's Transfer & Storage Co. v. Superior Court of Los Angeles County, 114 Cal.App.3d 897, 902, 171 Cal.Rptr. 1, 4 (Ct. App. 1980) ("[D]elay may only constitute the requisite bad faith . . . when it appears that a delayed cross-complaint, if allowed, would work a substantial injustice to the opposing party and would prejudice that party's position in some way."). The statute explicitly notes its purpose is not to perpetuate "forfeiture of causes of action," yet that is exactly the result of the majority holding.
61
In the case at bar, there was no finding of bad faith by the trial court judge, nor was there substantial evidence of bad faith. All that was found was an "absence of diligence" and that Conopco had been extremely "dilatory." Joint Appendix, at A-498, A-499.13 The record is bereft of any explicit finding by the trial court of a lack of a showing of good faith by defendant in that case (Conopco) or a showing of bad faith on the part of Conopco by plaintiffs in that case (defendants here). As noted above, the California cases do not equate absence of diligence nor dilatoriness with bad faith nor a lack of good faith. The "apparent" finding of a lack of good faith to which the majority refers is not apparent to this writer, indeed to the contrary. Thus, the trial court's decision to deny leave to file the cross-complaint not only stripped Conopco of its cause of action, but also its statutory right to override the bar on late cross-complaints upon a showing of good faith. By affording the opportunity to seek permission for a late filing, California has given Conopco both a right and a means of overriding the bar. As a matter of statutory right and due process, until that right is extinguished by a final judgment against Conopco by the terms of the California statutory scheme, i.e., including the right to review of the trial court action by appeal, the bar is not irrevocable.
62
Further, if the appeal in California does not overrule the state trial court decision, Conopco might have a legitimate argument that the bar of § 426.30, on its face or as applied to its claim, constitutes a denial of due process. That argument would not have been heard or decided in the California courts. Ending the district court case by an affirmance robs Conopco not only of its substantive claim arising from the transaction with appellees-on a procedural basis, not on its merits-but also of its constitutional right to be heard, i.e., due process.
63
The result proposed here does not offend 28 U.S.C. § 1738 nor run counter to a dismissal projected by the majority if Conocpo had brought this action in the California courts. It had no need to do so as its rights would be protected and served fully by its pending appeal which, if sustained on the claim under § 426.50, would have resuscitated its right under that section. By its dismissal, the District Court would extinguish Conopco's right to assert its claim. If that dismissal is sustained here, an anomaly would arise if Conopco's appeal is sustained and, with the California trial court judgment vacated and the denial of the late filing reopened, the District Court action might well be refiled, lawfully. All of this is, of course, speculative, but the stay urged here would afford clarification of Conopco's standing and then the course in the District Court can properly be decided.
64
There is a difference between Conopco's preclusion from asserting the claim now at the trial court level and its being barred in an absolute sense as the dismissal would cause. The view here takes the middle ground, that by our staying the case, California's trial court application of §§ 426.30 and 426.50 is honored, but the finality of a bar would, by staying the case below, await the further proceedings in California.
65
Accordingly, for all the reasons stated above, the case should be remanded to the district court for entry of a stay pending resolution of the California appeal and further proceedings that may follow upon the appeal decision.
Notes:
9
As discussed above, the majority concedes that a final judgment is required.
10
The majority relies heavily on Carroll v. Import Motors, Inc., 33 Cal.App.4th 1429, 39 Cal.Rptr.2d 791 (Ct. App. 1995) to support its position that the California courts will bar a party from raising a compulsory cross-complaint in a separate action prior to a final, non-appealable judgment, and thus the federal courts must do the same. Carroll does hold that a claim will be barred in California in a subsequent action where the claim should have properly been brought as a cross-complaint in a related pending action. See id. at 1435-36, 39 Cal.Rptr.2d at 795. However, it does not speak to the question of whether the California courts would regard § 426.30 as an absolute bar where the denial of leave to file is subject to reversal, i.e., not finally decided. Regardless, the full faith and credit obligation hinges on whether Conopco's right to file a cross-complaint has been conclusively determined by the California courts. It has not.
11
Nor does California deem such a decision final. See Central Bank v. Transamerica Title Ins. Co., 85 Cal.App.3d 859, 870, 149 Cal.Rptr. 822, 828-29 (Ct. App. 1978) (denial of leave to file amended complaint, governed by the same standard as a compulsory cross-complaint, is an intermediate order). C.f. Marx v. McKinney, 23 Cal.2d 439, 444, 144 P.2d 353, 356 (1944) (order denying motion for leave to file cross-complaint is "not appealable and may be reached only through the appeal from the judgment"); Miller v. Stein, 145 Cal.App.2d 381, 386, 302 P.2d 403, 406 (Ct. App. 1956) ("An appeal does not lie from such an order [denying leave to file cross-complaint], these questions being reviewable only upon appeal after a final judgment or its equivalent." (emphasis added)). It is true that California does recognize certain judgments and orders as final dispositions of issues even though not technically final judgments. See Conservatorship of Rich v. Moore, 46 Cal.App.4th 1233, 1235, 54 Cal.Rptr.2d 459, 460 (Ct. App. 1996). Such orders are deemed final for appeal purposes, i.e., can be appealed prior to entry of a final judgment. See id. at 1235, 54 Cal.Rptr.2d at 460. Denial of leave to file a cross-complaint, however, cannot be so appealed and thus said denial is not entitled to full faith and credit. See Texas Employers' Ins. Ass'n v. Jackson, 820 F.2d 1406, 1422 (5th Cir. 1987).
12
Again, it should be noted that California's definition of "final" with respect to res judicata and collateral estoppel is quite strict as it requires a non-appealable judgment. To apply a different definition in the instant context would result in a different rule of law for plaintiffs than defendants-plaintiffs would not be precluded from filing related claims until the first lawsuit was final, i.e., non-appealable, whereas defendants would be cut off much sooner.
13
The record reflects the parties' engagement, during the pendency of the case, in settlement negotiations which could have vitiated the need for arbitration and/or a cross-complaint. Conopco was informed that the matter would not be settled, and that arbitration would not be agreed to, on April 2, 1998. See Joint Appendix, at A-256. Thereupon it moved to compel arbitration and, in the alternative, for permission to file a late cross-complaint. Both motions were denied on June 11, 1998. See Joint Appendix, at A-485, A-496.
| {
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774 F.2d 1154
Brownv.Callis
85-6364
United States Court of Appeals,Fourth Circuit.
10/1/85
1
E.D.Va.
AFFIRMED
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} |
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-714V
(Not to be Published)
*************************
L.M. a minor, by and through her parent *
and legal guardian, CHAD MCCLELLAN, *
* Special Master Corcoran
Petitioner, *
* Dated: September 29, 2017
v. *
* Attorney’s Fees and Costs;
* Interim Fees; Expert Costs.
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*************************
David C. Richards, Christensen & Jenson, Salt Lake City, UT, for Petitioner.
Ryan D. Pyles, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING INTERIM AWARD OF ATTORNEY’S FEES AND COSTS1
On August 7, 2014, Chad McClellan filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”)2 on behalf of his minor
daughter, L.M. Petitioner alleges that as a result of receiving the pneumococcal vaccine on
December 30, 2011, L.M. suffered significant aggravation of her underlying movement disorder,
causing a new seizure condition. See Petition at 2. After extensive expert filings from both parties,
along with supplemental briefing, I scheduled the matter for an entitlement hearing to take place
1
Although this decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public.
Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
from September 10-13, 2018. See Prehearing Order, dated July 10, 2017 (ECF No. 60).
Petitioner has now requested an interim award of attorney’s fees and costs in the total
amount of $237,515.67 (representing $159,722.90 in attorney’s fees and $77,792.77 in costs). See
Motion for Interim Attorney’s Fees and Expenses, filed August 28, 2017, at 5 (ECF No. 61)
(“Interim Fees App.”). In accordance with General Order #9, Petitioner represents that he has not
incurred any personal costs associated with the matter. Id. at Tab D.
Respondent reacted to the motion on September 14, 2017, deferring to my discretion as to
whether Petitioner has met the legal standards for an interim fees and costs award and the amount
to be awarded, if any. See Response to Motion for Interim Attorney’s Fees and Costs, dated Sept.
14, 2017 (ECF No. 62) at 2.
For the reasons stated below, I hereby GRANT IN PART Petitioner’s Motion, awarding
at this time interim fees and costs in the total amount of $225,280.67.
Procedural History
This action has been pending for over three years. As the billing invoices submitted in
support of the fees application reveal, Petitioner’s attorney, David Richards, Esq., began working
on the matter on August 20, 2012, two years before the case was even filed. See Interim Fees App.,
Tab A. During that period of time, it appears that Mr. Richards (and his associates) was performing
significant research on genetic mutations, as well as performing record collection and contacting
experts. Id. That time appears to have been well-spent, as Petitioner filed complete medical records
within a month of filing the case. Respondent, after receiving extended time because of the
voluminous medical records, filed his Rule 4(c) Report in December 2014. See Respondent’s Rule
4(c) Report, dated Dec. 5, 2014 (ECF No. 12).
Thereafter the parties began filing expert reports, a process that was not completed until
April 21, 2017. To date, Petitioner has submitted the reports from three different experts (two of
which opined in supplemental reports) and a letter from one of L.M.’s treaters. In response,
Respondent has submitted five expert reports from two experts. Petitioner has also filed a brief (in
response to my order) attempting to distinguish his case from similar cases that have been
dismissed in the Program, addressing concerns I raised several times. See Scheduling Order, dated
Sept. 7, 2016 (ECF No. 38). Respondent filed a brief in reaction. I ultimately determined that the
disputed issues in the case necessitated an entitlement hearing. As previously mentioned, that
hearing has been scheduled for September 2018.
Shortly after the Pre-hearing Order was issued, Petitioner filed the present interim request
for an award of attorney’s fees and costs. See generally Interim Fees App. Petitioner specifically
requests that Mr. Richards be compensated at hourly rates of $295, $300, $305, and $312, for work
2
performed from 2013-2017, respectively, consistent with my decision regarding his appropriate
hourly rates in Atnip v. Sec’y of Health and Human Servs., No. 14-1006, 2016 WL 4272057 (Fed.
Cl. Spec. Mstr. July 6, 2016). Petitioner also requests reimbursement for Mr. Richards’s associate
and paralegals. Interim Fees App., Tab A at 27. One associate billed for work performed on the
matter during 2016-2017 at an hourly rate of $200. Id. The paralegals billed for work from 2012-
2017 at varying rates from $97-$125. Id.
Significant costs have also been incurred in the matter for two categories—record
collection and expert costs. The former category amounts to $4,315.27, while the latter is
$73,477.50. Interim Fees App. at 3. The three experts that opined in Petitioner’s case were Drs.
Vera Byers, Marcel Kinsbourne, and Richards Boles. Dr. Byers performed about 50 hours of work
on the case at an hourly rate of $350, for a total of $15,312.50 (including a $2,000 retainer).3 See
generally Court’s Ex. 1. Dr. Kinsbourne billed at varying hourly rates—$300 per hour for work
that was administrative, such as returning emails or calls, and $500 per for substantive review of
the medical records or drafting his expert report—the total amounting to $38,665.00. Interim Fees
App., Tab B. Finally, Dr. Boles performed 35 hours of work at an hourly rate of $500, totaling
$17,500. Id.
ANALYSIS
I. Legal Standard Applicable to Interim Fees and Costs Requests
I have in prior decisions discussed at length the standards applicable to determining
whether to award fees on an interim basis (here, meaning while the case is still pending). Auch v.
Sec'y of Health & Human Servs., No. 12-673V, 2016 WL 3944701, at *6-9 (Fed. Cl. Spec. Mstr.
May 20, 2016); Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at
*5-9 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). It is well-established that a decision on entitlement is
not required before interim fees or costs may be awarded. Fester v. Sec’y of Health & Human
Servs., No. 10-243V, 2013 WL 5367670, at *8 (Fed. Cl. Spec. Mstr. Aug. 27, 2013); see also
Cloer v. Sec’y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012); Avera, 515
F.3d at 1352. While there is no presumption of entitlement to interim fees and cost awards, special
masters may in their discretion make such awards, and often do so. Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests for interim
3
Petitioner’s fee application filed Dr. Byers’ invoice as Tab B. That invoice, however, did not reflect any reduction
for the retainer paid by Mr. Richards. My chambers contacted Mr. Richards to resolve the discrepancy and determine
the amount that should be awarded to Petitioner and Petitioner’s counsel. It was determined that Dr. Byers had
mistakenly not accounted for the retainer paid by Mr. Richards. On September 28, 2017, Mr. Richards emailed my
chambers a copy of the corrected invoice, showing that he had paid a total of $17,312.50 to Dr. Byers (including
$2,000, which Petitioner represents will be credited on a future bill by Dr. Byers and $2,000 paid as a retainer). See
Court’s Exhibit 1. The correct total, as reflected in Court’s Exhibit One, including the retainer, was $15,312.50, which
will be reimbursed in full to Petitioner and Petitioner’s counsel.
3
costs are subject to the same standards. Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52
Fed. Cl. 667, 670 (2002); Fester, 2013 WL 5367670, at *16.
Here, I find that Petitioner has made a showing sufficient to justify an award of interim
fees and costs. Criteria that I have found to be important in determining whether an interim fees
request should be permitted include: 1) if the amount of fees requested exceeds $30,000; 2) where
expert costs are requested, if the aggregate amount is more than $15,000; or 3) if the case has been
pending for more than 18 months. See Knorr v. Sec’y of Health & Human Servs., No. 15-1169V,
slip op. at 3 (Apr. 17, 2017). This matter meets all of that criteria. It has been pending for over
three years (plus two years before the case was filed), and given that the hearing has yet to take
place, the case may take significant additional time to resolve. The total amount of attorney’s fees
requested also exceeds the minimum threshold that I find to be appropriate, and Petitioner will
continue to incur additional attorney’s fees through the briefing and hearing process. While I do
not always find an interim fees award appropriate, this case merits an interim award.
II. Amounts Requested for Petitioner’s Attorneys
I must now evaluate what the magnitude of Petitioner’s interim attorney’s fee award should
be. Whether a fee award is made on an interim basis or after a case’s conclusion, the requested
sum must be “reasonable.” Section 15(e)(1). Special masters may in their discretion reduce
attorney hours sua sponte, apart from objections raised by Respondent and without providing a
petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 208-09 (2009); Perreira, 27 Fed. Cl. at 34 (special master has “wide discretion in
determining the reasonableness” of attorney’s fees and costs).
Determining the appropriate amount of an award of reasonable attorney’s fees is a two-part
process. The first part involves application of the lodestar method – “multiplying the number of
hours reasonably expended4 on the litigation times a reasonable hourly rate.” Avera, 515 F.3d at
4
An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether
there is a significant disparity between the forum-rate applicable to the Vaccine Program generally and the geographic
forum in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at
1349, (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758
4
1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting
the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This
standard for calculating a fee award is considered applicable in most cases where a fee award is
authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).
Petitioner asks that the attorneys and paralegals who worked on this matter be reimbursed
at varying rates for work performed from 2012-2017. As detailed above. I have found that the
attorneys practicing at Christensen & Jensen, located in Salt Lake City, Utah, are not “in-forum”
and thus not entitled to the forum rates set forth in McCulloch v. Sec’y of Health & Human Servs.,
No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), Atnip, 2016 WL 4272057,
at *4. I will maintain the rates I have previously established for Mr. Richards from 2013-2017.5
Similarly, I find that the rates requested by the associate and paralegals are reasonable and will be
awarded.
The hours expended on this matter by Mr. Richards and his associates (633.80 hours in
total), are high, but appear to be reasonable for a case that has lasted over three years. This case
has also proceeded in a timely fashion, and Petitioner’s attorneys efficiently used their time to
collect the necessary medical records and medical literature relevant to this case prior to filing the
case. Some fees were also directly attributable to my own orders and the obligations I placed on
counsel. Accordingly, I will award the attorney’s fees as requested for a total of $159,722.90.
III. Requested Costs
Finally, Petitioner requests costs that he incurred to acquire medical records and to obtain
expert opinions. I will award the first category in full for a total of $4,315.27. As for the second
category, while I will award the majority of the expert costs, I will reduce the hourly rates of Drs.
Kinsbourne and Boles, consistent with other decisions in the Program. Dr. Kinsbourne’s billing
records indicate two different rates. He billed at an hourly rate of $300 for administrative tasks
such as telephone calls and emailing (45.8 hours in this case), but at $500 per hour for more
substantive work—reviewing medical literature and drafting his reports (49.8 hours in this case).
While I find the former category reasonable and will award it as requested, I will reduce the latter
rate to $400 per hour consistent with that awarded by other special masters. See e.g., Faoro v. Sec'y
of Health & Human Servs., No. 10–704V, 2014 WL 5654330, at *4 (Fed. Cl. Spec. Mstr. Oct. 15,
2014). This results in a total reduction for Dr. Kinsbourne of $4,985.00.
(D.C. Cir. 1999)). This “Davis” exception is inapplicable here, however, because I have previously found the attorneys
in question should receive forum rates.
5
Mr. Richards stated that he derived his 2017 using the consumer price index (CPI) calculator. However, the special
masters currently favor using the producer price index for the office of lawyers (“PPI-OL”) as the rate inflator rather
than the CPI. Upon performing the PPI-OL calculation, it results in the same hourly rate, thus there is no reason to
adjust Mr. Richard’s 2017 rate. The PPI-OL rate for 2017 was derived by multiplying Mr. Richard’s 2016 rate
($304.07), by the PPI-OL index for January 2016 (201.8) and then dividing by the PPI-OL index for January 2015
(196.8), after rounding to the nearest dollar, their hourly rate for 2017 came to $312.
5
I will similarly reduce Dr. Boles’s rate. He billed for 35 hours at a rate of $500 per hour. It
appears Dr. Boles has only participated in two other Program cases, neither of which have ruled
upon his proper rate. As his CV indicates, Dr. Boles is an experienced geneticist, with published
articles in the field. See Exhibit 45, dated July 29, 2016 (ECF No. 37). I must balance that with his
lack of experience in the Program and the rates awarded to other, similarly situated, experts. His
requested rate of $500 is at the very top end of hourly rates awarded solely to experienced and
highly qualified experts. See e.g., Rosof v. Sec’y of Health & Human Servs., No. 14-766, 2017 WL
1649802, at *4 (Fed. Cl. Spec. Mstr. Mar. 31, 2017) (noting that awarding $500 per hour for an
expert in the Program is very rare). I will therefore reduce Dr. Boles’s requested hourly rate to
$350, commensurate with other similarly educated experts. Barclay v. Sec’y of Health & Human
Servs., No. 07-605, 2014 WL 2925245, at *8 (Fed. Cl. Spec. Mstr. Feb. 7, 2014) (awarding $325
per hour to a similarly educated expert for work performed in 2013). The reduction for Dr. Boles
is $5,250.00.
Dr. Byers’s requested rate of $350 per hour is consistent with other decisions, and I will
award it herein. See e.g. Dingle v. Sec’y of Health & Human Servs., No. 08-579V, 2014 WL
630473 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). Her hours were also appropriate, amounting to a total
of $15,312.50 ($2,000 of which was paid by a retainer). See Court’s Exhibit 1.
The new total for expert costs is $63,242.50. ($33,680.00 (Dr. Kinsbourne) +$12,250.00
(Dr. Boles) +$15,312.50 (Dr. Byers)=$63,242.50). The resulting reduction is $10,235.00.
Accounting for the new total for expert costs, the total amount to be awarded for interim
attorney’s fees and costs is $225,280.67.
CONCLUSION
Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of interim fees awards, and based on the foregoing, I GRANT IN PART Petitioner’s Motion for
Interim Attorney’s Fees, as follows:
Requested Reduction Total
Attorney and Paralegal Fess $159,722.90 None $159,722.90
Dr. Kinsbourne $38,665.00 $4,985.00 $33,680.00
Dr. Boles $17,500.00 $5,250.00 $12,250.00
Dr. Byers $15,312.50 None $15,312.50
Misc. Costs $4,315.27 None $4,315.27
Grand Total: $225,280.67
6
I therefore award a total of $225,280.67 in interim fees and costs as a lump sum in the form
of a check jointly payable to Petitioner and Petitioner’s counsel, Mr. David Richards, Esq.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of this decision.6
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
6
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
7
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129 F.3d 127
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Lita Po SY, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 96-70712.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 10, 1997.Decided Oct. 23, 1997.
Petition to Review a Decision of the Immigration arid Naturalization Service.
Before: SCHROEDER, BEEZER and BRUNETTI, Circuit Judges.
1
MEMORANDUM*
2
Petitioner must establish either past persecution or a well-founded fear of future persecution on the basis of race (ethnic Chinese) to establish eligibility for a discretionary grant of asylum. See Lopez-Galarza v. INS, 99 F.3d 954, 958 (9th Cir.1996). She fails to do either. 840 F.2d 723, 726-27 (9th Cir.1938)) (other citations omitted). A petitioner alleging past persecution must also "present some evidence, direct or circumstantial, of the persecutor's motive." Lopez-Galarza, 99 F.3d at 959. The Petitioner's alleged incidents of past persecution either occurred many years before she left the Philippines or took place under circumstances indicative of general criminal intent, rather than targeted persecution based on her ethnic Chinese status. Because Petitioner has failed to present specific facts with objective evidence to prove past persecution on account, of her race, see Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir.1987), the BIA did not abuse its discretion in finding that she did not establish past persecution. See id.
3
Petitioner also fails to demonstrate a well-founded fear of future persecution based on her race. The BIA found that Petitioner did not herself suffer persecution, and that any persecution suffered by her relatives was on account of economic status rather than race. The record does not compel contrary findings. See Elias-Zacarias v. INS, 502 U.S. 478 (1992). Moreover, the record indicates that the NPA is no longer active in most of the Philippines. Thus, the BIA's decision to affirm the IJ is supported by substantial evidence and there is no error. See Perez v. INS, 96 F.3d 390, 393 (9th Cir.1996).
4
Because the standard for withholding deportation is higher than the standard for asylum, and because Petitioner failed to meet the lower standard for a grant of asylum, the BIA's denial of withholding of deportation is supported by substantial evidence. See Mejia-Paiz v. INS, 111 F.3d 720, 725 (9th Cir.1997).
5
Petitioner also fails to demonstrate the requisite "extreme hardship" to be entitled to suspension of deportation. See 8 U.S.C. § 1254(a). Petitioner has not established that she would be unable to find a job in the Philippines simply by arguing that there are fewer jobs in general. See Perez, 96 F.3d at 392 (a less vibrant economy is not an extreme hardship). Furthermore, Petitioner's separation from her adult children and her mother who reside in the United States, does not constitute a hardship that is "unusual or beyond that which would normally be expected" upon deportation. See Hassan v. INS, 927 F.2d 465, 468 (9th Cir.1991).
6
Petitioner also asserts a claim of ineffective assistance of counsel for the first time on appeal. Petitioner did not raise this claim before the BIA, and therefore, this court is precluded from hearing it now. See Arreaza-Cruz v. INS, 39 F.3d 909, 912 (9th Cir.1994).
7
The Petition is DENIED.
8
Petitioner's experience of past persecution is limited to the destruction of her father's shoe store when she was a young girl and the robbery of her necklace in 1985. We have defined persecution as " 'the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.' " Id. at 959 (quoting Desir v. Ilchert,
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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132 Cal.Rptr.2d 220 (2003)
107 Cal.App.4th 708
Kenneth HIRSCH, Plaintiff and Appellant,
v.
BANK OF AMERICA, N.A., Defendant and Respondent.
Norman E. Taylor et al., Plaintiffs and Appellants,
v.
Union Bank of California, N.A., Defendant and Respondent.
Thelma Baker, Plaintiff and Appellant,
v.
Wells Fargo Bank, N.A., Defendant and Respondent.
Jessica B. Siegel, Plaintiff and Appellant,
v.
Imperial Bank, Defendant and Respondent.
Nos. A096725, A096726, A096727, A096728.
Court of Appeal, First District, Division Four.
March 28, 2003.
Rehearing Denied April 22, 2003.
Review Denied July 23, 2003.[*]
*221 Lieff, Cabraser, Heimann & Bernstein LLP, William B. Hirsch, Barry R. Himmelstein, Stephen H. Cassidy, San Francisco, Orme and Grabstein, John Robin Orme, San Francisco, for appellants.
Morrison & Foerster LLP, James F. McCabe, Stephen E. Paffrath, San Francisco, for Bank of America, N.A.
Severson & Werson, William L. Stern, San Francisco, for Wells Fargo Bank, N.A.
Nixon Peabody LLP, Paul J. Hall, San Francisco, for Union Bank of California, N.A.
Arter & Hadden LLP, John L. Hosack, Los Angeles, for Imperial Bank.
Greines, Martin, Stein & Richland LLP, Robin Meadow, Cynthia E. Tobisman, Los Angeles, for amicus curiae California Land Title Association on behalf of respondent Bank of America, N.A.
REARDON, J.
The second amended complaints (SAC) in these consolidated appeals alleged that defendant banks engaged with title insurance and escrow companies (hereafter, title companies) in an elaborate and illegal kickback scheme: In exchange for substantial escrow funds deposited with defendants *222 in demand deposit accounts, the banks pursued a series of illegal practices resulting in disguised interest payments to the title companies. These practices violated federal prohibitions against paying interest on demand deposit accounts.[1] Through these practices the banks assisted the title companies in converting such interest to their corporate accounts instead of paying it over to plaintiffs, the depositing parties to the escrows, as required by California law.[2]
Sustaining demurrers to plaintiffs' complaints without leave to amend, the trial court concluded that assuming the banks violated federal law, interest should never have been paid on demand deposits maintained by the title companies in the first place. However, the banks' conduct did not amount to aiding and abetting the title companies in keeping anything from plaintiffs to which they were entitled. Accordingly, the court ordered dismissal of the complaints.
We concur that plaintiffs were not entitled to interest in the first place and hence affirm the judgments as to causes of action seeking damages, restoration or restitution on account of such interest. However, plaintiffs' unjust enrichment claim also seeks restitution based on excessive and unjustified fees passed on to them, which the banks allegedly charged for cash management services. That cause survives demurrer. Accordingly, we affirm in part and reverse in part.
I. BACKGROUND
A. The Parties
Appellants[3] are property owners who, in the course of consummating real property transactions, placed funds in escrow with various title companies which in turn deposited those funds in demand deposit accounts maintained by respondent banks. Respondents are three national banking associations and one state banking corporation.[4] Appellants sued the Banks on their behalf and similarly situated others,[5] as well as the general public.
B. Regulatory Framework
1. Title Insurance Industry
California regulates the title insurance industry pursuant to Insurance Code section 12340 et seq. Pertinent here is Insurance Code section 12413.5, mandating that (1) all funds received by a title insurance company in connection with any escrow must be deposited with a financial institution and (2) the funds so deposited belong to the person entitled thereto under the escrow terms. Additionally, any interest received on those funds "shall be paid *223 over by the escrow to the depositing party to the escrow unless the escrow is otherwise instructed by the depositing party, and shall not be transferred to the account of the title insurance company...." (Ibid.)
Title insurance companies are subject to the disciplinary and enforcement powers of the Insurance Commissioner. (Ins.Code, §§ 12410, 12411, 12928.6.)
2. Federal Regulatory Framework
The Federal Reserve Act[6] prohibits member banks of the Federal Reserve System from paying, either directly or indirectly, any interest on any demand deposit. (12 U.S.C. § 371a; see also Reg. Q.) Regulation Q defines interest as "any payment to or for the account of any depositor as compensation for the use of funds constituting a deposit. A member bank's absorption of expenses incident to providing a normal banking function or its forbearance from charging a fee in connection with such a service is not considered a payment of interest." (12 C.F.R. § 217.2(d).)
Over the years, the Federal Reserve Board has endorsed various arrangements by which banks can provide benefits to depositors without violating the Federal Reserve Act or Regulation Q. Two arrangements are pertinent to this case.
First, a bank can absorb or reduce charges for banking services since the bank does not actually pay funds to the depositor, even though the depositor benefits from the absorption of charges. (12 C.F.R. § 217.2(d); Fed. Reserve, Staff Opn. Interpreting Reg. Q (Oct. 27, 1978) Fed. Reserve Reg. Service 2-543.) Similarly, a bank can also contract with a third party to provide a "normal banking function" for the depositor if (1) the service is the functional equivalent of provision directly by the bank and (2) provided there is no payment "to or for the account of"[7] the bank's customer. (Fed. Reserve, Staff Opns. Interpreting Reg. Q (Sept. 28, 1993 & Nov. 24, 1993) Fed. Reserve Reg. Service 2-543.1.) However, if the service provider is a wholly owned subsidiary of the demand deposit customer, payments to the service provider would be considered payments "to or for the account of the customer. (Ibid.)
Second, a bank can make loans to its customers at a reduced rate of interest based on earnings credits attributed to compensating balances maintained in demand deposit accounts. The amount of credit the bank would extend would be determined with reference to the historical average demand deposit account balances. Loan proceeds would be used to purchase commercial paper, treasury bills and other investment instruments pledged as security for the loans. (Fed. Reserve, Staff Opns. Interpreting Reg. Q., supra, Fed. Reserve Reg. Service 2-540; id. (June 28, 1988) Fed. Reserve Reg. Service 2-545 & 2-545.1.)
C. Contested, Practices
The heart and soul of the SAC is that Banks knowingly diverted interest earned on appellants' escrow funds to the title companies through the artifices of earning credits and monthly revolving credit facilities (MRCF's). The key allegations are as follows:
(1) Earnings Credits: Earnings credits are credits, expressed in dollars, earned on deposited escrow funds. Banks extended *224 earnings credits to title companies based on the average daily escrow funds on deposit with them, and provided the title companies with monthly account analysis statements setting forth the exact amount of the credits. Ostensibly, these earnings credits were used to pay for normal banking services provided to title companies by Banks or by third party vendors under contract with Banks. In fact, Banks paid earnings credits for services that were not normal banking functions, e.g., invoices were paid for tax preparation; voicemail systems; office supplies and furniture; and installation and upgrading of computer equipment in branch offices (even though the equipment was used primarily for nonescrow services).
Additionally, Banks paid earnings credits for services that were never rendered, based on invoices they knew were not related to normal banking services. Routinely the invoiced amounts were calculated to match and exhaust the available earnings credits. Further, earnings credits went to shell companies that had no independent existence, employees or payroll expenses, based on phony invoices. The shell companies in turn funneled or rebated the payments to the title companies. As well, earnings credits were paid to subsidiaries of the title companies for services invoiced at inflated, above-market rates.
(2) MRCF's: The MRCF process works this way: On the last day of each month Banks calculate the amount of credit the title companies are eligible to borrow. On the first day of the next month they inform the title companies of the net investable balance for the preceding month. With that balance Banks purchase securities for the title companies, selecting the securities from a list in the MRCF contract which includes treasury bills, certificates of deposit, and highly rated commercial paper. Banks charge a nominal amount of interest on the credit extended to the title companies, but the securities generate a market rate of return, guaranteeing monthly profit to the companies.
No later than the last day of each month Banks liquidate the securities. They retain the principal from the sale along with sufficient funds to pay off the nominal interest charged. The remaining "spread" is the interest earned on the securities, which Banks wire transfer to separate accounts controlled by the title companies.
Appellants alleged that the MRCF's resulted in net payments based solely on the amount of funds held in non-interest-bearing escrow accounts and the market interest rates. These payments amounted to rebates paid directly to the title companies, and as such they constituted interest in violation of federal law.
D. Excessive Fees
The SAC further asserted that by agreeing to "covertly" pay interest on escrow funds, Banks captured for themselves a larger pool of capital than they could otherwise obtain from title companies, and reaped substantial profits from excessive fees associated with offering and maintaining the escrow accounts. The excessive fees were passed on, directly or indirectly, to consumers.
E. Causes of Action; Relief
Appellants pled five causes of action: (1) aiding and abetting conversion of interest; (2) aiding and abetting breach of fiduciary duty; (3) aiding and abetting breach of agent's duties to principal; (4) unjust enrichment; and (5) violation of the Unfair Competition Law (UCL).[8] They sought *225 general and punitive damages, as well as an order "directing restitution of all improperly assessed charges and interest obtained, and the imposition of an equitable constructive trust over such amounts for the benefit of Plaintiff[s], the Class members and the general public...."
F. Procedural History
Originally, appellants filed an omnibus complaint naming Banks and six title companies as defendants. The trial court sustained defendants' demurrer on grounds of misjoinder. Thereafter, appellants refiled against the title companies in Los Angeles and against each Bank separately in San Francisco. The Los Angeles County Superior Court sustained the title companies' demurrers without leave to amend as to causes of action for breach of fiduciary duty and agent's duty, negligence, conversion and conspiracy but overruled demurrers to the unjust enrichment causes.
Meanwhile, the trial court ultimately sustained Banks' demurrers to the complaints without leave to amend, reasoning as follows: "I don't believe that there's any allegation of any conduct by any of the Banks that the Banks were not permitted to engage in other than the alleged violation of Regulation Q. If we assume that the Banks did violate Regulation Q, that would mean that they paid title companies moneys that they shouldn't have paid them, that they gave what constituted interest to the title companies based on these demand deposit accounts which they weren't permitted by the federal banking authorities to do. And if that's what they did, that is not something that could possibly have harmed any of the plaintiffs, [¶] ... [¶] ... [T]aking [the allegations] at face value and assuming them to be true, they show that the banks were violating Federal Reserve Board restrictions against the payment of interest. But they do not show conduct that aided title companies in keeping from plaintiffs ... moneys to which those individuals were entitled. Because on the face of it, ... the money shouldn't have been paid in the first place."
II. STANDARD OF REVIEW
The demurrer tests the legal sufficiency of the complaint. We engage in de novo review of a judgment of dismissal following the sustaining of a demurrer without leave to amend. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1500-1501, 82 Cal.Rptr.2d 368.) Further, "`[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58, quoting Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.)
III. DISCUSSION
A. Appellants Have No Legal Right to Receive Payments from Banks Based on Extension of Benefits to the Title Companies
1. Introduction
Appellants seek damages and restitution premised on their legal right to interest allegedly wrongfully paid to the title companies. In order to recover damages based on diverted interest under any of the tort causes of action, appellants must demonstrate "`a wrongful invasion by the defendants] of some legal right of the plaintiff[s] and damage resulting to the plaintiff[s] from the wrongdoing.'" (Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1622, 2 Cal.Rptr.2d 796.) For the unjust enrichment claim, there must be "receipt of a benefit and unjust retention of the benefit *226 at the expense of another." (Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726, 91 Cal.Rptr.2d 881, italics added.) And with respect to a claim under the UCL, the trial court is empowered to "make such orders or judgments ... as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition." (Bus. & Prof.Code, § 17203, italics added.) An order for restitution under the UCL compels the "UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person." (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 126-127, 96 Cal.Rptr.2d 485, 999 P.2d 718, fn. omitted.) In short, for any of these claims to fly, appellants must have been deprived of something to which they were entitled. Therein lies the problem.
2. No Entitlement
We assume, for purposes of analysis only, that the benefits the Banks extended to the title companies constituted interest under California law. California law defines interest as "the compensation allowed by law or fixed by the parties for the use, or forbearance, or detention of money." (Civ.Code, § 1915.) We also assume, for purposes of analysis only, that appellants are correct that the mechanisms the Banks employed to extend benefits to the title companies, namely earnings credits and MRCF payments, violated federal law. Therefore it was illegal for the Banks to make the payments in the first place.
Under this scenario, not only were the funds tainted in the hands of the title company because payments constituted interest in violation of federal law, but once the title company retained the funds they became tainted under state law because of Insurance Code section 12413.5. Thus, the benefits extended were twice stamped illegal: coming in the back door to the title companies and then not going out the front door to appellants.
However, had the title companies not retained the unlawful benefits and instead passed them off to appellants as interest, those benefits would have constituted a windfall because Banks should never have extended them in the first place. So, too, had appellants maintained the demand deposit accounts themselves, they would have no legal right to receive any interest from Banks because of the federal prohibition against paying interest on such accounts. How does anything change when instead it is the title companies which maintain the accounts? Appellants cannot accrue a legal entitlement to interest from Banks based on the title companies' receipt of illegal benefits from Banks.
Taking at face value the allegations that payments of earnings credits and MRCF's violated Regulation Q, what has been described is a closed loop of illegal activity involving only the Banks and the title companies. There is no break in the loop allowing for a purging of the federal illegality that would enable appellants to assert a valid entitlement to the funds as against Banks. The asserted purpose of this closed loop is to unlawfully enable title companies to earn money on escrow accounts in exchange for facilitating the capture of substantial capital by Banks. However wrong this may be, there is no wrongful conduct that Banks inflicted directly on appellants.
Nor is there conduct that Banks engaged in to aid the title companies in depriving appellants of an entitlement. Even the allegation that Banks insisted on *227 adding language to escrow instructions clarifying that the parties acknowledged that escrow funds did not bear interest does not constitute assistance in depriving appellants of anything rightfully theirs. This is just part of the behavior to consummate extending illegal benefits to the title companies. Had a federal regulator blown the whistle on these activities, there would be nothing for the title companies to pass on.
Nonetheless, as between the title companies and their customers, Insurance Code section 12413.5 dictates that the customers have the superior right to any payments made by Banks that constituted interest in violation of Regulation Q. Unless the funds were to be disgorged to Banks, the title companies would be obliged to pass those benefits on to their customers.
3. Case Law Does Not Aid Appellants
Appellants first urge that Abrams v. Crocker-Citizens Nat. Bank (1974) 41 Cal. App.3d 55, 114 Cal.Rptr. 913 supports their claim that federal law does not shield Banks from liability for interest "wrongfully diverted to the title companies." This is not so.
The disputed factual issue in Abrams was whether the parties intended impound funds deposited by borrowers to be held in trust. Overturning summary judgment, the reviewing court held that assuming the existence of a trust, the bank was not obligated to invest funds for the plaintiffs' benefit, but the plaintiffs might be entitled to an accounting for any gain realized by the bank from the use of trust funds. (Abrams v. Crocker-Citizens Nat. Bank, supra, 41 Cal.App.3d at p. 60, 114 Cal. Rptr. 913.) The court also responded to the defendant's contention that federal law prohibited it from paying interest on a demand deposit: "[United States Code] section 371a does not protect a bank from liability for money awarded as compensation for its wrongful acts." (Id. at p. 61, 114 Cal.Rptr. 913, italics added.) For that proposition, the court cited Lindley v. Robillard (1955) 208 Misc. 532 [144 N.Y.S.2d 33]. The Lindley court concluded that the bank in question wrongfully withheld escrow deposits from the seller, entitling the seller to judgment in the sum of the escrow deposit with interest from the date of demand. (Id. at p. 536, 144 N.Y.S.2d 33.) Dismissing the bank's United States Code section 371a argument, the court held that the statute "does not protect defendant bank from liability for the interest awarded as compensation for its wrongful retention, after demand, of money to which the defendant Robillard was legally entitled." (Lindley v. Robillard, supra, 208 Misc. at p. 537, 144 N.Y.S.2d 33.)
What Abrams and Lindley stand for is the proposition that the prohibition against paying interest on demand deposits is separate and apart from a bank's liability for interest awarded on adjudicated damages. Appellants miss this distinction, which renders Abrams inapposite to their cause.
Appellants further ask us to apply the general rule that one who knowingly aids and abets a fiduciary to make secret profits may be jointly liable with the fiduciary for those profits, citing People v. Bestline Products, Inc. (1976) 61 Cal.App.3d 879, 919, 132 Cal.Rptr. 767. First, we point out that the agency of an escrow holder is limited: "[D]espite the general description of an escrow holder as a fiduciary, the obligations of an escrow agent are limited to faithful compliance with the instructions from the principals." (Romo v. Stewart Title of California (1995) 35 Cal.App.4th 1609, 1618, fn. 9, 42 Cal.Rptr.2d 414.)
Second, Bestline relied on Fink v. Weisman (1933) 129 Cal.App. 305, 18 P.2d 961, a case in which the plaintiff had an underlying entitlement to the profit, and the *228 wrong was not the practice of earning the profit itself. Rather, the only wrong was the concealment of the profit from the plaintiff. Fink involved joint venturers in the purchase of property. Such parties are in a fiduciary relationship to each other and one cannot make secret profits out of the transaction not shared with the other. Those who aid and abet the fiduciary in attaining the secret profits are liable with the fiduciary for same. (Id. at pp. 311, 317, 18 P.2d 961.) In contrast, here the practice itself that generated a benefit was allegedly illegal and thus appellants did not have an underlying entitlement to those benefits.
Nor does Bank of America v. Ryan (1962) 207 Cal.App.2d 698, 707, 24 Cal. Rptr. 739 aid appellants. There, a former bank executive had accumulated fees, commissions, gratuities and gifts by inducing borrowers to pay him for loan approvals, clearly a violation of his fiduciary duty to the bank. The bank sued in equity to impose a constructive trust on those assets. The remedy of a constructive trust as to Banks is not possible because it was the title companies that retained the allegedly illegal interest. In any event, digging deeper into the Ryan scenario, had Bank of America instead sued its customers who were involved in the kickback scheme on a theory of aiding and abetting the breach of Ryan's fiduciary duty to the bank, it would have lost. Now the action would sound in tort. We are talking about imposing secondary liability as an aider or abettor of a tort, a civil wrong resulting in damages. As against its customers, we know of no theory entitling the bank to damages on account of the illegal bribes with which the customers lined Ryan's pockets.
4. Negotiable Order of Withdrawal Accounts
Appellants further insist that instead of depositing pooled escrow funds in demand deposit accounts, the title companies could and should have opened negotiable order of withdrawal (NOW) accounts for individual plaintiffs. NOW accounts are interest-bearing checking accounts held by individuals, nonprofit organizations or public entities, in which the depository institution reserves the right to require at least seven days' written notice prior to withdrawal or transfer of funds. (See 12 C.F.R. § 204.2(b)(3)(ii); see also 12 U.S.C. § 1832(a).)
This argument goes nowhere because the title companies are not obligated to open up NOW accounts. (See Hannon v. Western Title Ins. Co. (1989) 211 Cal. App.3d 1122, 1128, 260 Cal.Rptr. 21 [escrow holder has no duty to deposit funds in interest-bearing account absent instruction to do so].) It is permissible to use demand deposit accounts. Moreover, since for-profit organizations are prohibited from opening NOW accounts, title companies would have to administer two sets of accounts. Finally, a bank's reservation of right to demand seven days' advance notice before withdrawal from a NOW account could complicate consummation of transactions because an escrow must close at a specific time.
5. Defense of Illegality
Appellants also urge that we consider, by analogy, the limitations which have arisen concerning application of the doctrine of illegality to issues of contract enforcement. The rule that courts will not aid enforcement of an illegal agreement or one against public policy will be relaxed where the transaction has been completed, no serious moral turpitude is involved, the defendant is guilty of the greater moral fault, and where reliance on the rule would permit the defendant to be unjustly enriched at the plaintiffs expense. (See, *229 e.g., Norwood v. Judd (1949) 93 Cal. App.2d 276, 288-289, 209 P.2d 24; see also Johnson v. Johnson (1987) 192 Cal.App.3d 551, 557, 237 Cal.Rptr. 644.) Suffice it to say that issues of contract enforcement as between two parties have little bearing on whether as a matter of law a person has an enforceable right as against a third party. Moreover, the rationale for sidestepping the rule is grounded in the doctrine of unjust enrichment, namely that to deny relief would mean the defendant retains a benefit at the plaintiffs expense. We reiterate, benefits were not paid by Banks or retained by title companies at appellants' expense.
For all these reasons, we conclude that appellants cannot state any cause of action based on an entitlement to interest.
B. Allegations of Excessive Fees Passed on to Appellants Survive Demurrer
We reach a different conclusion as concerns appellants' allegations of unjust enrichment based on Banks charging excessive fees, without justification, for escrow account services that were passed on to them. The SAC alleged that coincident to amassing substantial escrow accounts, Banks charged title companies fees for numerous cash management services described as "account maintenance, account reconciliation, monthly general ledger and financial statements, checks deposited, checks paid, check printing, check sequencing, photocopy and clerical services, facsimile transmission, postage, express mail, incoming and outgoing wire transfers, information and computer services and scores of additional charges for offering and maintaining escrow accounts. Through soliciting title and escrow companies to enter into earnings credits and MRCFs, Defendant[s] obtained ever larger amounts of escrow funds that, in turn, generated more fees." Fees for cash management services were charged at excessive rates, sometimes generating profit margins of nearly 50 percent on some products. These fees were passed on to consumers as higher fees for separate services or higher fees for escrow services generally.
Unlike a claim for damages based on breach of a legal duty, appellants' unjust enrichment claim is grounded in equitable principles of restitution. An individual is required to make restitution when he or she has been unjustly enriched at the expense of another. (Rest., Restitution, § 1, p. 12; Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51, 57 Cal.Rptr.2d 687, 924 P.2d 996.) A person is enriched if he or she receives a benefit at another's expense. (Rest., Restitution, § 1, com. a, p. 12; Ghirardo v. Antonioli, supra, 14 Cal.4th at p. 51, 57 Cal.Rptr.2d 687, 924 P.2d 996.) The term "benefit" connotes any type of advantage. (Rest., Restitution, § 1, com. b, p. 12; Ghirardo v. Antonioli, supra, 14 Cal.4th at p. 51, 57 Cal. Rptr.2d 687, 924 P.2d 996.)
Appellants have stated a valid cause of action for unjust enrichment based on Banks' unjustified charging and retention of excessive fees which the title companies passed through to them. Banks received a financial advantageexcessive fees charged to the title companieswhich they unjustly retained at the expense of appellants, who absorbed the overage. To confer a benefit, it is not essential that money be paid directly to the recipient by the party seeking restitution. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1278, 90 Cal.Rptr.2d 41.)
We conclude that appellants' unjust enrichment cause with respect to the alleged overcharges survives demurrer without deciding whether the practices described in the SACnamely, extension of benefits to *230 title companies through earnings' credits and MRCF'swere illegal under federal law. This equitable claim of unjust enrichment applies regardless of the mechanisms employed by Banks to attract escrow accounts from title companies.
Banks' attempt to assert a defense of federal preemption to this cause of action is misguided. Traditional equitable principles of unjust enrichment do not by any stretch of logic amount to an inconsistent state regulation that interferes with a preeminent federal regulatory scheme. Rather, relief is available under this theory upon a determination that under the circumstances and as between the two individuals, it is unjust for the person receiving the benefit to retain it. (Rest., Restitution, § 1, com. c, p. 13; First Nationwide Savings v. Perry (1992) 11 Cal. App.4th 1657, 1663, 15 Cal.Rptr.2d 173.)
III. DISPOSITION
We affirm in part and reverse in part. Parties to bear their own costs on appeal.
We concur: KAY, P.J., and SEPULVEDA, J.
NOTES
[*] Baxter, J., Chin, J., and Brown, J., did not participate therein.
[1] Under federal law, national banks and state chartered banks that are members of the Federal Reserve cannot pay interest on demand deposit accounts. (12 U.S.C. § 371a; 12 C.F.R. § 217.1 et seq. (Regulation Q); see also Fin.Code, § 854 [recognizing Federal Reserve Act's preemptive effect on bank's payment of interest].)
[2] Insurance Code section 12413.5, dictating that interest on escrow accounts be paid to the depositing party unless contrary instructions are given.
[3] Appellants are Kenneth Hirsch, Norman E. Taylor, Connie S. Taylor, Lynne Thompson Jones-Brittle, Yolanda Altares, Thelma Baker and Jessica B. Siegel.
[4] Respondents are Bank of America, N.A., Wells Fargo Bank, N.A., Imperial Bank and Union Bank of California, N.A. (Banks).
[5] The SAC defines the proposed classes this way: "All persons or entities who, from 1980 to the present, incident to purchase, sale or refinancing of real property located in California, deposited funds in escrow trust accounts maintained by Defendant and were not paid interest that was earned on their escrow funds."
[6] Act of December 23, 1913, 38 Statutes at Large 251, chapter 6; see also title 12 United States Code section 226.
[7] A payment or credit "to or for the account of" a depositor is an indirect payment of interest. (Fed. Reserve, Staff Opn. Interpreting Reg. Q. (Jan. 3, 1974) Fed. Reserve Reg. Service 2-540.)
[8] Business and Professions Code section 17200 et seq.
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761 So.2d 449 (2000)
David BRESCH, Petitioner,
v.
Cal HENDERSON, Sheriff, Hillsborough County Sheriff's Office and, The State of Florida, Respondent.
No. 2D00-1193.
District Court of Appeal of Florida, Second District.
June 2, 2000.
*450 Julianne Holt, Public Defender, and Tanya E. DiFilippo, Assistant Public Defender, Tampa, for Petitioner.
Robert A. Butterworth, Attorney General, Tallahassee, and Jenny S. Seig, Assistant Attorney General, Tampa, for Respondent.
PER CURIAM.
David Bresch petitions this court for a writ of habeas corpus alleging illegal confinement as a result of an order finding him in civil contempt. By prior unpublished order, we stayed the trial court's order under which Bresch had been incarcerated and ordered his immediate release. We now grant the petition and vacate the contempt order.
Bresch was ordered to pay temporary child support to his wife pursuant to a Final Judgment of Injunction for Protection Against Domestic Violence. He subsequently filed a motion in the trial court to amend the terms of the injunction which, at his request, was set for hearing. When Bresch appeared for what he believed to be a hearing on that motion, the trial court, apparently on its own initiative, determined that Bresch was behind in his child support payments. The trial court then found Bresch in contempt for failing to pay child support and ordered him indefinitely incarcerated with a provision that the contempt could be purged by the payment of one thousand dollars ($1000) to his wife. Bresch was taken into custody and the instant petition ensued.
The trial court's order found Bresch in "indirect civil contempt." In reference to the finding of contempt, it stated only that the court received testimony and evidence showing that Bresch had the present ability to pay child support and was therefore in civil contempt for failing to pay. It further provided that he could purge the contempt by paying one thousand dollars ($1000) to his wife and ordered him incarcerated. The order contains no specific factual findings.
Bresch argues that the trial court failed to make a proper finding that he had the present ability to pay the purge amount and that, therefore, incarcerating him was illegal. We agree. It is well-settled that incarceration cannot be used as a means of obtaining compliance with a court order in a civil contempt proceeding without first making an affirmative finding that the person has the present ability to comply with that order. See Bowen v. Bowen, 471 So.2d 1274 (Fla.1985). In the absence of such a finding, a coercive civil sanction is transformed into a criminal punishment which has been imposed in violation of the alleged contemnor's constitutional rights. See Pompey v. Cochran, 685 So.2d 1007, 1013 (Fla. 4th DCA 1997).
To eliminate any confusion regarding the procedures to be followed or the findings necessary in order to legally impose incarceration for civil contempt in the context of child support enforcement, in 1998, our supreme court adopted Florida Rule of Family Law Procedure 12.615.[1] That rule sets out detailed procedures that must be followed before a person can be found in civil contempt for failure to pay child support and additional requirements that must be met before a contemnor can be jailed. In adopting this rule, the court noted that the rule was "created to assist the trial courts in ensuring that the due process rights of alleged contemnors are protected." See Fla. R. Fam. Law P. 12.615 commentary.
*451 Rule 12.615 clearly provides that an order providing for incarceration as a coercive sanction for civil contempt shall not only set a purge amount but shall include "a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding." See Fla. R. Fam. Law P. 12.615(e). In the instant case, there is no finding in the order that Bresch has the present ability to pay the purge amount. Although the order does include a finding that Bresch had the present ability to pay child support (in the amount of fifty dollars per week), this finding is not sufficient to show that Bresch had the ability to pay the one-thousand dollar purge amount. Moreover, even if the finding was somehow sufficient to demonstrate Bresch's ability to pay the purge, it is not supported by a factual basis as required by the rule. This deficiency alone requires that the order be vacated.
Although not raised by Bresch, we write to express our concern regarding other blatant errors clear from the face of the record. First, we note that rule 12.615(d) provides detailed guidelines outlining the findings that must be made in an order of civil contempt and requiring the order to contain a recital of the facts on which those findings are based. The trial judge in this case failed to make three of the four required findings and included no facts in support of the one finding that he did make.
Our greatest concern, however, is that Bresch was not notified prior to the hearing that he would be facing an allegation of civil contempt. This is a clear violation, not only of rule 12.615(b), but more importantly of Bresch's constitutional right to due process. While a person facing civil contempt sanctions is not entitled to the full panoply of due process rights afforded to a person facing indirect criminal contempt charges, he or she is nonetheless entitled to a proceeding that meets the fundamental fairness requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. See Andrews v. Walton, 428 So.2d 663 (Fla.1983). Such fundamental fairness includes providing the alleged contemnor with adequate notice and an opportunity to be heard. See International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). The failure to provide Bresch with any notice whatsoever constituted a lack of due process which would have required the trial court's order be vacated even if it had included the required findings.
We are deeply troubled that circuit courts continue to illegally incarcerate people for civil contempt in the face not only of ample case law, but also a rule which clearly delineates the procedures that should be followed in order to ensure that the due process rights of alleged contemnors are protected. As the Supreme Court noted when issuing a public reprimand to a judge found to have improperly exercised his contempt powers, "[a]lthough the contempt power is an extremely important power for the judiciary, it is also a very awesome power and is one that should never be abused." See In re Inquiry Concerning Perry, 641 So.2d 366, 368 (Fla.1994). We therefore once again repeat our admonishment that there are dangers not only to litigants but to trial judges as well when contempt powers are abused. See Conley v. Cannon, 708 So.2d 306 (Fla. 2d DCA 1998); Blalock v. Rice, 707 So.2d 738 (Fla. 2d DCA 1997).
Petition for writ of habeas corpus granted.
BLUE, A.C.J., and FULMER and NORTHCUTT, JJ., Concur.
NOTES
[1] Florida Rule of Family Law Procedure 12.615 governs civil contempt proceedings in support matters related to family law cases. See Fla. R. Fam. Law P. 12.615(a). "Family law cases" include injunctions for domestic and repeat violence. See Fla. R. Fam. Law P. 12.010(a).
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IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. BRYNER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
CURTIS J. BRYNER, APPELLANT.
Filed October 25, 2016. No. A-15-1193.
Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
F. Matthew Aerni, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MOORE, Chief Judge, and PIRTLE, Judge, and MCCORMACK, Retired Justice.
MOORE, Chief Judge.
INTRODUCTION
Curtis J. Bryner appeals from his conviction in the district court for Lancaster County for
possession of marijuana with intent to deliver. Bryner asserts that the district court erred in finding
that he was not unreasonably seized following the traffic stop and in failing to suppress the
evidence obtained subsequent to the traffic stop. Because we find no error by the district court, we
affirm.
BACKGROUND
Following a traffic stop on January 9, 2015, during which marijuana was discovered in
Bryner’s vehicle, a complaint was filed charging Bryner with possession of marijuana with intent
to deliver, a Class III felony pursuant to Neb. Rev. Stat. § 28-416(1),(2)(b) (Cum. Supp. 2014).
See, also Neb. Rev. Stat. § 28-405 (Cum. Supp. 2014). Class III felonies were punishable at the
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time of the offense by up to 20 years’ imprisonment, a $25,000 fine, or both, with a minimum
penalty of 1 year imprisonment. Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
Bryner filed a motion to suppress all evidence obtained after the conclusion of the January
9 traffic stop. On May 19, 2015, a hearing was held on the motion to suppress. The State offered
into evidence the video recording of the traffic stop and subsequent events. Testimony was given
by two law enforcement officers and Bryner. The following evidence was adduced at the
suppression hearing.
TRAFFIC STOP
During the morning of January 9, 2015, Deputy Jason Mayo of the Lancaster County
Sheriff’s Office, while stationed in his police cruiser along the interstate, observed a red Nissan
being driven in excess of the speed limit. After visually estimating the vehicle to be speeding,
Mayo pulled behind the vehicle and obtained two speed readings, the first at 75 m.p.h. and the
second at 70 m.p.h. The vehicle was traveling through a 55 m.p.h. construction zone.
Mayo activated the cruiser’s lights and pulled the vehicle over. During this time, Mayo
also called Deputy Henkel, a police canine handler, who arrived at the scene shortly thereafter.
Mayo contacted Henkel because both deputies worked together on the interstate and sometimes
call upon each other during traffic stops.
The traffic stop was recorded by an in-car video camera contained within Mayo’s cruiser,
with audio supplied through microphones worn on Mayo’s person and located within the cruiser.
Mayo approached the vehicle and made contact with the driver, Bryner. Mayo requested that
Bryner accompany him back to the police cruiser to fill out paperwork pertaining to the traffic
violation. Bryner sat in the front seat of the cruiser.
While in the cruiser, Mayo ran a check on Bryner’s license, checked for any outstanding
warrants, made small talk with Bryner regarding the weather, and asked several questions
concerning his trip over the next couple of minutes. Also during this time, Henkel arrived at the
scene, checked something on the vehicle, spoke to Mayo, and returned to his police cruiser.
During this conversation, Bryner provided various information to Mayo. Bryner stated that
he lived in Happy Camp, California. Mayo noted in his subsequent investigation report that this
region of California is known for growth and trafficking of high grade marijuana. Mayo asked
Bryner what the closest large city was to his residence, to which he replied Medford, Oregon.
Mayo reported recognizing this area from prior policing experience as a location where marijuana
is commonly produced and trafficked.
Bryner told Mayo he was employed as an in-home caregiver for two individuals in
California. He claimed to be traveling on a 2-week vacation to Chicago, Illinois and Oklahoma
City, Oklahoma to visit family.
Mayo observed that the vehicle was a rental, and had a “lived in look” based on the
presence of food wrappers. The vehicle appeared to contain only a single backpack, with no other
luggage visible. Mayo determined during the stop that the vehicle was only being rented for one
week. Mayo later testified that rental cars are often used to transport drugs.
Mayo left his cruiser and checked something on the vehicle, spoke with Henkel, then
returned to the cruiser. Upon returning to the cruiser, Mayo spoke with Bryner regarding speed
-2-
limits between Lincoln and Omaha, issued a warning to Bryner, then discussed various aspects of
the warning. Mayo concluded the traffic stop by asking Bryner if he had any questions about the
warning, and then handing him the paperwork. Mayo did not expressly inform Bryner that he was
free to leave at this time.
REQUEST TO REMAIN AND ANSWER
ADDITIONAL QUESTIONS
Immediately after giving Bryner the warning, Mayo asked Bryner if he would be willing
to answer a few additional questions. Specifically, Mayo asked Bryner, “before you roll out can I
ask you a couple really quick questions real fast before you go?” Mayo stated that Bryner had
“been more than decent” with him, and asked if Bryner would be “cool with that.” Bryner replied
by stating “yeah.” Mayo expressed to Bryner that he has the opportunity to speak with all kinds of
people, and that very rarely are they involved in something illegal. However, Mayo explained that
he has to ask, as it is his job.
First, Mayo asked if Bryner was transporting any large amounts of cocaine,
methamphetamine, or heroin, which Bryner denied. Next, Mayo asked if Bryner was transporting
large amounts of marijuana. Mayo claims that Bryner “paused and almost choked” before saying
no. Mayo then asked if Bryner had any large amounts of money. Bryner replied that he just had a
debit card and laughed.
REQUESTS TO CONDUCT VEHICLE SEARCH
AND POLICE CANINE SNIFF
Following this line of questioning, Mayo told Bryner he appreciated his time, then
requested consent from Bryner to do a quick search of the vehicle for any of the aforementioned
items. Bryner replied that Mayo did not need to search the vehicle.
Mayo asked Bryner if he was responsible for everything in the vehicle. Bryner replied
“yeah my bags.” Mayo had previously noticed three fingermarks on the trunk of the vehicle, which
appeared fresh when compared to the dirt on the vehicle. Based on this observation, Mayo asked
if Bryner had been in the trunk, mentioning the finger marks, which Bryner denied. Bryner stated
that the marks were not his. Mayo then clarified that Bryner did not want him to search the vehicle,
which Bryner confirmed. Mayo noted in his subsequent report that Bryner was “extremely nervous
and shaking” while Mayo spoke to him about the contents of the vehicle.
Following these denials by Bryner of consent to search the vehicle, Mayo asked Bryner if
he would be opposed to having a trained police canine walk around the exterior of the vehicle,
mentioning that the canine detects the odor of narcotics. Bryner consented, stating that “[Mayo]
could do that.” Henkel proceeded to walk the police dog around the vehicle. On the third lap around
the vehicle, the dog alerted to the presence of narcotics in the trunk. Henkel informed Bryner that
the canine indicated there was an odor of narcotics coming from the trunk, and Bryner admitted
there was marijuana in the trunk. Henkel and Mayo then searched the vehicle, locating 19
heat-sealed baggies of marijuana in the trunk, totaling to approximately 22 pounds.
Mayo testified that if Bryner had declined to stay and speak further after the traffic stop
had concluded, he would have let him leave. However, after learning additional information during
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this post-stop conversation with Bryner, if Bryner had not consented to the police canine sniff,
Mayo would have detained him because he was suspicious that Bryner was involved in criminal
activity and believed that he had reasonable suspicion at this time to detain him. Bryner testified
that he did not feel free to leave after Mayo gave him the warning and began to ask additional
questions, or at any other point during his contact with Mayo.
On September 8, 2015, the district court issued an order overruling the motion to suppress.
The court found that Bryner consented to additional questioning by Mayo after the traffic stop
concluded and consented to the police canine sniff and therefore Bryner was not unreasonably
seized.
On October 21, 2015, a stipulated bench trial was held. The State offered into evidence the
traffic stop video, Mayo’s supplementary investigation report, and a lab report confirming that the
substance located in the vehicle was marijuana. Bryner objected to the admission of this evidence
on the same basis presented within his earlier motion to suppress. The district court overruled these
objections and received these exhibits into evidence. At the conclusion of this hearing, Bryner was
found guilty of the charged offense beyond a reasonable doubt. On December 17, 2015, Bryner
was sentenced to imprisonment for a period of 1 to 2 years.
Bryner subsequently perfected this appeal.
ASSIGNMENTS OF ERROR
Bryner assigns, restated, that the district court erred in finding that he was not unreasonably
seized when (1) Mayo requested Bryner remain and answer additional questions after the traffic
stop was completed, and (2) Mayo requested to conduct a police canine sniff after Bryner denied
consent to search his vehicle.
STANDARD OF REVIEW
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding
historical facts, an appellate court reviews the trial court’s findings for clear error, but whether
those facts trigger or violate Fourth Amendment protections is a question of law that an appellate
court reviews independently of the trial court’s determination. State v. Tyler, 291 Neb. 920, 870
N.W.2d 119 (2015).
Likewise, we apply the same two-part analysis when reviewing whether a consent to search
was voluntary. As to the historical facts or circumstances leading up to a consent to search, an
appellate court reviews the trial court’s findings for clear error. However, whether those facts or
circumstances constituted a voluntary consent to search, satisfying the Fourth Amendment, is a
question of law, which an appellate court reviews independently of the trial court. Id.
ANALYSIS
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska
Constitution protect individuals against unreasonable searches and seizures by the government.
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). It is well settled under the Fourth
Amendment that warrantless searches and seizures are per se unreasonable, subject to a few
-4-
specifically established and well-delineated exceptions. State v. Tucker, 262 Neb. 940, 636 N.W.2d
853 (2001).
A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed that he or she was not free to
leave. State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010). In addition to situations where an
officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure
may include the threatening presence of several officers, the display of a weapon by an officer,
some physical touching of the citizen’s person, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled. Hedgcock, 277 Neb. 805, 765
N.W.2d 469 (2009).
It is a longstanding principle of law in Nebraska that police-citizen encounters involving
no restraint of the liberty of the citizen involved, but, rather, the voluntary cooperation of the
citizen elicited through noncoercive questioning, do not rise to the level of a seizure. In re Clinton
G., 12 Neb. App. 178, 669 N.W.2d 467 (2003) (citing State v. Burdette, 259 Neb. 679, 611 N.W.2d
615 (2000)). Stated another way, a seizure does not occur simply because a law enforcement
officer approaches an individual and asks a few questions or requests permission to search an area,
even if the officer has no reason to suspect the individual is involved in criminal activity, provided
the officer does not indicate that compliance with his or her request is required. State v. Anderson,
258 Neb. 627, 605 N.W.2d 124 (2000), overruled on other grounds. See, also, State v. Hedgcock,
supra.
The right to be free from unreasonable searches and seizures may be waived by consent of
the citizen. State v. Reinpold, 284 Neb. 950, 824 N.W.2d 713 (2013). In order for a consent to
search to be effective, it must be a free and unconstrained choice and not the product of a will
overborne. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012). Consent must be given
voluntarily and not as the result of duress or coercion, whether express, implied, physical, or
psychological. State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005). Mere submission to
authority is insufficient to establish consent to a search. Tucker, supra.
The Fourth Amendment does not require that a lawfully seized defendant be advised that
he or she is legally “free to go” before the defendant’s consent to search will be recognized as
voluntary. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000). An officer need not give any
warning to a citizen that he or she may freely refuse a request to search. Id.
The determination of whether consent to search is voluntarily given is a question of fact to
be determined from the totality of the circumstances. State v. Turner, 23 Neb. App. 897, 880
N.W.2d 403 (2016) (citing State v. Ready, 252 Neb. 816, 565 N.W.2d 728 (1997)). The burden is
upon the government to prove that a consent to search was voluntarily given. Turner, supra. (citing
State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990)).
ADDITIONAL QUESTIONING AFTER TRAFFIC STOP
Bryner argues that once the traffic stop was completed, the authority for the initial seizure
ended. He asserts that the request to remain in the police cruiser to answer additional questions
was a new seizure, because a reasonable person would not feel free to leave under such
-5-
circumstances. Further, Bryner contends that this seizure was unreasonable, in part because Mayo
had no reasonable suspicion to justify detaining Bryner for the purpose of additional questioning.
The State in turn argues that because Bryner voluntarily consented to remain in the cruiser
following the conclusion of the traffic stop, there was no unreasonable seizure under the Fourth
Amendment. The State asserts that a reasonable person in Bryner’s position would have felt free
to decline the request for additional questioning and leave.
Upon our review of record, we find that the district court did not err in concluding Bryner
waived the right to be free from unreasonable seizure. Regardless of whether Mayo’s actions
following the traffic stop amounted to a seizure, Bryner’s clear, voluntary consent to answer
additional questions amounted to such a waiver.
The totality of the circumstances, particularly as shown through the recording admitted at
trial, contain no indication that Bryner’s consent was the result of duress or coercion. Mayo
concluded the traffic stop by providing Bryner with a warning and corresponding paperwork.
Mayo then asked if Bryner would be willing to answer additional questions, to which he agreed.
Mayo’s tone of voice was friendly and non-confrontational. Because Bryner’s consent was given
voluntarily, he waived any argument that he was unreasonably seized.
The district court’s finding that Bryner voluntarily consented to further questioning
following the traffic stop was not clearly erroneous.
Bryner’s first assignment of error is without merit.
REQUESTS FOR CONSENT TO SEARCH AND
CONDUCT POLICE CANINE SNIFF
Bryner argues that he was also unreasonably seized when, after he twice denied consent to
search the vehicle, Mayo asked if he would consent to a police canine sniff. Bryner asserts that his
consent to the dog sniff was invalid, because such consent was a mere submission to authority.
Furthermore, Bryner claims that Mayo lacked reasonable suspicion such that would allow
detention in the absence of valid consent.
The State responds by arguing that Bryner voluntarily consented to the police canine sniff,
based in part on the casual and nonthreatening tone utilized by Mayo during his requests for
consent. Alternatively, the State asserts that even if the consent was invalid, Mayo had reasonable
suspicion sufficient to detain Bryner at the point of requesting a dog sniff. See Anderson, 258 Neb.
at 635. (when no seizure occurs, such as in the event that voluntary consent is given, reasonable
suspicion is not required).
Upon our review of record, we find that the district court did not err in concluding Bryner
waived the right to be free from unreasonable seizure when he consented to Mayo’s request to
perform a dog sniff.
Bryner’s consent to the dog sniff was not a mere submission to authority. There is no
indication from the record that this decision was the result of Bryner’s will being overborne or
influenced by duress or coercion. Bryner previously denied Mayo’s requests to personally search
the vehicle, which denials were honored. Between the denials of consent to search the vehicle and
Mayo’s request to perform the dog sniff, his tone remained polite and unthreatening. Further, the
length of time during which the questioning and requests for consent occurred was short. Based
-6-
upon these circumstances, Bryner could have reasonably believed that a denial of the request to
allow the dog sniff would be honored.
Lastly, because Bryner’s consent was valid, it is unnecessary for this court to consider
whether reasonable suspicion existed justifying the detention of Bryner during this period. See
Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015) (an appellate court is not
obligated to engage in an analysis that is not necessary to adjudicate the case and controversy
before it).
The district court’s finding that Bryner voluntarily consented to the police canine sniff was
not clearly erroneous.
Bryner’s second assignment of error is without merit.
CONCLUSION
Upon our review, we find that the district court did not err in denying Bryner’s motion to
suppress. Bryner consented to answering additional questions and the administering of a police
canine sniff after the traffic stop. Therefore, we affirm.
AFFIRMED.
-7-
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[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1741
RICHARD COMERFORD,
Plaintiff, Appellant,
v.
U.S. DEPT. OF ARMY,
Defendant, Appellee.
____________________
ARMY NATIONAL GUARD OF MASSACHUSETTS,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Richard Comerford on brief pro se.
Donald K. Stern, United States Attorney, and Barbara Healy
Smith, Assistant U.S. Attorney, on Motion to Dismiss Appeal or
for Summary Disposition, for appellee.
SEPTEMBER 29, 2000
Per Curiam. After carefully considering the briefs
and record on appeal, we affirm the decision of the district
court.
To the extent that the appellant’s arguments are
addressed to the underlying judgment, they are unavailing
because he did not effect a timely appeal from that
judgment. Although his appeal from the last, three, post-
judgment motions is timely, those repetitive motions do not
raise for review the merits of the underlying judgment. See
Aybar v. Crispin-Reyes, 118 F.3d 10 (1st Cir 1997); Acevedo-
Villalobos v. Hernandez, 22 F.3d 384 (1st Cir. 1994).
Moreover, the appellant failed to provide developed
argumentation or authority establishing that the appeal is
timely with respect to the substantive issues raised in
those post-judgment motions. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990). Finally, to the extent that
the appellant’s arguments are addressed to the merits of the
district court’s rulings on the post-judgment motions, he
has not demonstrated abuse of discretion.
We deny the appellant’s motion to compel.
Affirmed. Loc. R. 27 (c).
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534 F.Supp. 783 (1982)
ASSOCIATION OF FLIGHT ATTENDANTS, Plaintiff,
v.
REPUBLIC AIRLINES, INC., Defendant.
Civ. No. 4-82-469.
United States District Court, D. Minnesota, Fourth Division.
March 26, 1982.
*784 Michael Abram, Peter Herman, Cohen, Weiss & Simon, New York City, Robert V. Atmore, Lindquist & Vennum, Minneapolis, Minn., for plaintiff.
Raymond J. Rasenberger, Zuckert, Scoutt & Rasenberger, Rachel B. Trinder, Washington, D. C., Joseph Ettel, Republic Airlines, Inc., Minneapolis, Minn., for defendant.
MEMORANDUM OPINION
DIANA E. MURPHY, District Judge.
Plaintiff Association of Flight Attendants (AFA) brings this action against defendant Republic Airlines, Inc. (Republic) under the Railway Labor Act, 45 U.S.C. §§ 151 et seq., for declaratory and injunctive relief. The dispute arises from the parties' negotiations, pursuant to an August 21, 1980 fence agreement, to arrive at a new single collective bargaining agreement between the parties. Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1337, 2201, and 2202.
The matter came on for hearing before the court on March 15, 1982 upon plaintiff's motion for a temporary restraining order. Plaintiff has also moved for a preliminary injunction preventing Republic from changing pay, work rules, or conditions of employment of its flight attendants pending a determination of AFA's pending grievances before the System Board of Adjustment. The defendant moves to dismiss the complaint because it involves a major dispute now beyond the jurisdiction of this court.
At the hearing on the motion for a temporary restraining order, counsel stated that the record was sufficient for the court to determine all motions without further hearing and requested that the court consider all motions as fully submitted. Later that day the court issued a temporary restraining order, to take effect upon the posting of security,[1] preserving the status quo between the parties until the court could rule on the other motions.
The court having considered the arguments of counsel and affidavits and exhibits submitted by the parties, and based on all the files, records, and proceedings herein, now enters this Memorandum Opinion and Order upon the motions for preliminary injunction and to dismiss.
Background
1. Parties
Defendant Republic is an airline providing air transportation service to over 160 cities in the United States, Mexico, Canada and the Carribean. It is subject to the provisions of the Railway Labor Act under 45 U.S.C. § 181. Republic is the sixth largest domestic air carrier in the United States, employing approximately 14,400 people.
Plaintiff AFA is the collective bargaining agent certified to represent the flight attendants employed by the defendant. One group of approximately 900 flight attendants (Republic West) was represented by AFA in a May 1, 1979 agreement, and another group of approximately 1500 of the remaining Republic flight attendants (Republic East) was represented by AFA in a separate May 1, 1979 agreement. AFA is now representing both groups in an effort to negotiate a unified collective bargaining agreement.
2. Applicable Statutes
The collective bargaining between the parties is governed in part by the provisions of the Railway Labor Act (the Act). The Act provides two different procedures for resolution of disputes between those covered by the Act.
Under § 6 of the Act, a procedure is established for the resolution of so-called *785 major disputes (i.e. those relating to rates of pay, rule and working conditions). 45 U.S.C. §§ 155, 156. First, the parties exchange notices of changes they intend in rates of pay, rules or working conditions. The parties confer in an attempt to iron out their differences. Failing this, mediation through the National Mediation Board may be invoked. If mediation is unsuccessful, the Board may proffer binding arbitration. Either party may reject arbitration and, once arbitration is rejected, may resort to self help upon expiration of thirty days.
Another procedure applies for the resolution of so-called minor disputes (i.e. those arising from the interpretation of an existing collective bargaining agreement). 45 U.S.C. §§ 153 and 184. If a conference between the parties fails, either party may submit the dispute to a Board of Adjustment. The decision of the Board of Adjustment is final and binding. Neither party may resort to self help over a minor dispute.
3. August 21, 1980 Fence Agreement
On October 1, 1980 Republic Airlines acquired Hughes Airwest Airlines. At the time the respective flight attendants for Republic and Hughes Airwest were represented by AFA and each group was employed under terms of different collective bargaining agreements dated May 1, 1979 and set to expire in September, 1981. In advance of the Republic-Hughes Airwest merger, Republic agreed to maintain these existing, separate agreements for the two groups of flight attendants (Republic East and Republic West) in a fence agreement with AFA dated August 21, 1980.
The fence agreement preserved and continued the separate flight attendant collective bargaining agreements except as explicitly modified. It also supplemented the existing agreements, protecting the flight attendants during the merger and providing a framework for achieving a new unified collective bargaining agreement and seniority list for both groups of Republic flight attendants.
A number of specific provisions are of special relevance here. They are:
2. The Company will provide the Flight Attendants of Republic Airlines, Inc. and Hughes Airwest all the standard Labor Protective Provisions normally imposed as a condition to the approval of a merger by the Civil Aeronautics Board, which are incorporated herein by reference, in the event the Board should not impose them as a condition of the merger of Republic Airlines, Inc. and Hughes Airwest. In the event that such Provisions are effective pursuant to the terms of this Agreement, they shall be enforceable in accordance with the provisions of the Federal Arbitration Act. In the event of arbitration concerning those Labor Protective Provisions, the parties shall attempt to mutually agree upon an arbitrator. In the event the parties are unable to agree upon an Arbitrator, the parties shall ask the National Mediation Board to supply a list of seven Neutrals, each of whom shall be a member of the National Academy of Arbitrators. The arbitrator shall be selected from such panel by alternately striking until only one remains, and that person shall serve as arbitrator. The procedures set forth in Section 13(a) of the Labor Protective Provisions shall apply to the conduct of such arbitration.
3. No later than sixty (60) days following final governmental approval of the merger (effective date of the CAB order), Republic Airlines, Inc. and the Association of Flight Attendants shall begin conferences for negotiation of a single agreement for the Flight Attendants of Republic Airlines, Inc. and Hughes Airwest. In the event that a single agreement for the Flight Attendants of Republic Airlines and Hughes Airwest is not concluded at least sixty (60) days prior to September 30, 1981, the parties shall exchange Section 6 notices under the Duration provision of the present collective bargaining agreements in accordance with their terms to accomplish a single agreement.
4. During the term of this Letter of Agreement, the Republic Airlines Flight Attendants shall operate under the Republic Airlines Flight Attendants' collective *786 bargaining agreement and System Seniority list. Except as explicitly modified herein, all terms and conditions of the respective Flight Attendants' agreements shall continue in full force and effect.
....
7. Republic Airlines, Inc. shall accept and implement the integrated Flight Attendants' System Seniority list as presented by the Association of Flight Attendants.
....
10. Employee grievances will be processed in accordance with the respective Collective Bargaining Agreements.
11. This Agreement shall remain in full force and effect until a single collective bargaining agreement has been concluded covering the rates of pay, rules and working conditions for the combined Flight Attendant group and the Republic Flight Attendants' System Seniority List and the Hughes Airwest Flight Attendants' System Seniority List have been integrated, except that paragraph 2 of this Agreement shall remain in full force and effect in accordance with the terms of the Labor Protective Provisions, whether accepted as contractual obligations or imposed by the Civil Aeronautics Board.
4. Implementation of the Fence Agreement
After the Republic merger, the parties began the process of implementing the fence agreement. The development of an integrated seniority list was committed to the internal procedures of the AFA. It is presently in union arbitration, and is expected to be decided soon by the arbitrator. Negotiations for a unified contract began in late 1980 and have continued off and on until the present time without success.
Initial negotiations for a unified contract stalemated and negotiations broke off in early 1981. In July, 1981, AFA notified Republic:
in accordance with Section 32 (Duration) of the Agreement between ... Hughes Airwest and the flight attendants ... in effect until September 30, 1981, and in accordance with Section 31 (Duration) of the Agreement between Republic Airlines, Inc. and the flight attendants ... in effect until September 30, 1981, that the flight attendants of Republic West Airlines and Republic Airlines ... wish to make changes in the rates of pay, rules, and working conditions of these Agreements in accordance with Section 6, Title I, of the Railway Labor Act, as amended.
On July 29, 1981 Republic responded with its § 6 notice. Negotiations followed but were fruitless. On August 21, 1981, AFA requested mediation. Mediation began in January, 1982.
The January mediation took place in the context of expectations that Republic would request major labor concessions from its employees. During the summer of 1981 Republic began to experience serious financial difficulties; by the end of 1981 it had suffered a net loss for the year of $46.3 million. In an effort to weather this financial difficulty, Republic gained temporary concessions from many of its employees. On January 27, 1982, Republic proposed a specific series of concessions in its mediation with AFA for a unified contract. At about this time in January, 1982, AFA claims to have first learned that Republic planned to resort to self help if the § 6 negotiations were unsuccessful. After Republic proposed these concessions, mediation broke off briefly.
Mediation resumed on February 9, 1982, and AFA orally proposed the parties enter a new fact-finding and arbitration procedure. Republic rejected this proposal, and on February 10, 1982, the mediator declared an impasse. On February 11 the mediator proffered arbitration. The next day Republic rejected the offer. The National Mediation Board, in a letter dated February 12, 1982, advised the parties that "all practical methods provided in the Railway Labor Act for our adjusting the dispute have been exhausted, without effecting a settlement" and that, under the Act, the parties had to maintain the status quo for thirty days.
*787 During the thirty day period the parties continued to negotiate without success. On March 1, AFA again proposed an arbitration procedure, this time in writing, citing Section 2 of the fence agreement. For the first time, AFA took the position that the fence agreement required preservation of the status quo until conclusion of a merged agreement and an integrated seniority list. Simultaneously, AFA asked Republic to agree to an expedited System Board of Adjustment proceeding to determine, before March 15, whether Republic's plans to engage in self help were consistent with the duration provisions of the fence agreement.
On March 4, 1982, Republic rejected the request for arbitration, taking the position that § 2 of the fence agreement did not provide for arbitration of contract and merger issues. Republic also stated that the fence agreement adopted the procedures of the Act so that the parties could change employment terms on March 15 at the end of the thirty day cooling-off period. Finally, Republic declined to participate in an expedited System Board proceeding on the ground that the union's grievance was anticipatory and the Board had no jurisdiction to render declaratory decisions.
On March 5, 1982, AFA submitted its grievance to the System Board and informed Republic that it would seek an order in federal court to maintain the status quo.
5. Republic's Planned Self Help
Republic seeks to save $65 million this year from employee contract concessions. It projects that flight attendant concessions alone would produce cost savings of $1.4 million per month. These concessions need to be implemented soon to realize savings in mid-April when it anticipates a severe cash flow problem and the prospect of being unable to pay debts that come due then.
Republic proposes to implement a 10% pay reduction and one month pay deferral for the Republic West flight attendants. (Republic East flight attendants have accepted these concessions on a temporary basis.) Initial work rule changes include raising the monthly maximum hours from 75 to 80. Reductions in crew complements are proposed to bring crew sizes closer to the minimum legal requirement of one attendant for every 50 seats.
The work rule changes, unlike the wage concessions, would not take effect immediately, but would be implemented over a period of time due to advance scheduling and bidding requirements. Other work rule changes may be made later. Republic's goal is to eliminate 500 flight attendant positions as a result of productivity improvements from its planned work rule changes. At least half of the positions to be eliminated would be accomplished through voluntary employee action. The remainder, at least 126, would be eliminated through furlough notices to the most recently hired attendants. Republic's intention is to use the integrated seniority list produced by AFA if received in a reasonable time. In no event, however, would changes be made in the seniority status of any flight attendant for at least two months.
Discussion
1. Defendant's Motion to Dismiss
Republic contends that this court has no jurisdiction because the dispute is major and the court may not issue an injunction under 29 U.S.C. § 101 once major dispute procedures have been exhausted. It is conceded that the court has jurisdiction in a minor dispute.
The distinction between major and minor disputes is that minor disputes are those "growing out of grievances or out of interpretation or application of agreements concerning rates of pay, rules or working conditions ...," 45 U.S.C. §§ 153 First (i) and 184, while major disputes involve attempts to change the "rates of pay, rules, or working conditions ..." 45 U.S.C. § 156. United Transportation Union v. Burlington Northern, Inc., 458 F.2d 354, 356 (8th Cir. 1972).
The dispute between the parties relative to the terms of a new contract is not before the court; rather, issues have been raised concerning the provisions of the fence agreement and their effect on the status of *788 negotiations for a new contract. These issues have been submitted to the System Board of Adjustment, and AFA seeks to invoke this court's jurisdiction over them. The mere presence of an ongoing major dispute does not preclude the possible coincidence of a minor dispute. See e.g., St. Louis Southwestern Railway Co. v. United Transportation Union, 646 F.2d 230 (5th Cir. 1981).
The test for a minor dispute is whether the contract is reasonably susceptible to the interpretations advanced by the parties. Independent Federation of Flight Attendants v. Trans World Airlines, 655 F.2d 155 (8th Cir. 1981).[2] If AFA's position on the duration provision of the fence agreement is "arguably" justified by the terms of the agreement and its interpretation is not "obviously insubstantial", the controversy is a minor dispute. 655 F.2d at 159. The burden to show such an arguable justification is "relatively light". Id.
Republic claims that the fence agreement clearly incorporates the duration provisions of the separate May 1, 1979 collective bargaining agreement for Republic and Hughes Airwest flight attendants. It cites § 3 which provides in part:
In the event that a single agreement for the Flight Attendants of Republic Airlines and Hughes Airwest is not concluded at least sixty (60) days prior to September 30, 1981, the court shall exchange Section 6 notices under the Duration provision of the present collective bargaining agreements in accordance with their terms to accomplish a single agreement.
AFA claims, however, that this reference to use of Railway Labor Act § 6 procedures for negotiations does not necessarily mean that the parties are free to resort to self help thirty days after arbitration is rejected. It contends that the duration provisions of the fence agreement are in §§ 4 and 11, which provide in part:
4. ... Except as explicitly modified herein, all terms and conditions of the respective Flight Attendants' agreements shall continue in full force and effect.
....
11. This agreement shall remain in full force and effect until a single collective bargaining agreement has been concluded covering the rates of pay, rules and working conditions for the combined Flight Attendant group and the Republic Flight Attendants' System Seniority List and the Hughes Airwest Flight Attendants' System Seniority List have been integrated, ....
It is evident that both parties' interpretations are "arguably" based on terms of the fence agreement. Moreover, examination of the entire agreement shows that §§ 3, 4 and 11 are not so easily reconciled as to render the position based on one provision or another "obviously insubstantial". Which interpretation is correct is for the System Board to decide, not the court, and the court should take care not to encroach on the Board's jurisdiction. Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co., 363 U.S. 528, 533, 80 S.Ct. 1326, 1329, 4 L.Ed.2d 1435 (1960). The fact that the parties present an arguable dispute under the terms of the fence agreement is enough to recognize a minor dispute.[3]
*789 Republic has also argued that the court should apply estoppel and refuse to recognize AFA's assertion of a minor dispute since AFA has submitted to major dispute procedures, recognized Republic's right to self help, and waited too long to press its minor dispute.
The facts in this case do not support application of estoppel. The mere fact that AFA submitted to major dispute procedures does not preclude its argument in court that a dispute is minor. St. Louis Southwestern Railway Co. v. United Transportation Union, 646 F.2d 230 (5th Cir. 1981). The factual record is conflicting as to whether AFA's representatives ever recognized Republic's right to self help. While there is some evidence to support this, the court is unable to draw any fair conclusions on the present state of the record. Finally, although AFA was not prompt in expressing its interpretation of the duration provisions of the contract, it does not appear that its delay harmed Republic. When AFA made its position known and requested Republic join in expedited proceedings to obtain a decision before March 15, Republic declined that opportunity to avoid costly delay. The reason given by Republic for refusing an expedited procedure was that AFA's claim of breach of the duration provisions was anticipatory. Had AFA expressed itself earlier, Republic would have had the same ground for objecting. Both parties bear a responsibility for the time predicament they now find themselves in which each seeks to invoke in its favor.
Since AFA's position on the duration of the fence agreement is at least arguably supported by the agreement and there is no ground for estoppel, the court finds that AFA's grievance presents a minor dispute for consideration by the System Board of Adjustment. Republic's motion to dismiss on the ground that AFA raises a major dispute will therefore be denied.
2. Plaintiff's Motion for a Preliminary Injunction
A motion for preliminary injunction may only be granted if the Dataphase test is met. Dataphase Systems, Inc. v. C L Systems Inc., 640 F.2d 109 (8th Cir. 1981). The factors to be considered are:
(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.
Id. at 113. In the particular circumstances of this case the factor of probability of success on the merits is of little assistance. The relief sought in this action is essentially only a preliminary injunction, and it would be inappropriate for the court to discuss the plaintiff's probability of success with its grievance since that would infringe on the System Board's jurisdiction. Moreover, "(a)t base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Id.
AFA claims that Republic's plans for self help will cause irreparable harm to its members. The pay reductions and deferrals, however, are obviously compensable in damages should AFA ultimately prevail at the System Board.[4] Similarly, the proposed increase in hours and workload is largely compensable in damages. While the loss of personal time or the added stress from these changes may not be entirely compensable, the impact should be minimized by the fact that these changes would not be effective immediately, and an expedited System Board decision could limit their impact.
The most serious prospect of irreparable harm for AFA is that which may result from Republic's planned work force reductions. Republic plans to issue furlough notices to between 126 and 250 flight attendants. *790 Even if AFA prevailed at the System Board, monetary compensation could be inadequate for the disruption caused to any wrongly noticed for furlough.
Plaintiff also argues that it would be irreparably harmed if it were forced to accept a new contract on Republic's terms, thereby mooting its System Board grievance. It is difficult to assess the extent of this potential harm. The court cannot know what difference there might be between Republic's self help plan and any negotiated contract, given Republic's real financial constraints. Moreover, it seems unlikely on the record before the court that AFA would accept a contract on Republic's terms before its grievance was decided, and improvident action by Republic would be ill advised where it runs the risk of the union responding with its own self help at a time of financial trouble. Republic stated at the hearing that it would not fire attendants without cause or implement individual terms of employment, but would provide terms for all consisting of its most recent contract offer.
Republic, on the other hand, urges vigorously that it faces irreparable harm if an injunction were granted because it would create serious financial difficulties for the airline. AFA does not dispute Republic's claims of financial crisis. Republic faces a certain cash shortage in mid-April and has no additional credit available. The magnitude of its projected operating deficit is great enough to require substantial labor concessions or face serious cuts in levels of service, if not a termination of operations. Many of the proposed concessions require time to implement and so must be initiated now to raise the cash needed to meet its obligations or at least convince creditors that payment is imminent.
The uncertainty produced by issuing an injunction at this time could trigger a crisis of confidence in Republic's ability to cope with its financial troubles. It would be unrealistic to think that Republic faces imminent reorganization, but it is clear that an injunction at this time could contribute to a complex of factors that would eventually hamper Republic's ability to help itself.
AFA argues that its membership is only a small part of Republic's payroll. Nonetheless, the planned changes for the flight attendants alone would generate a monthly savings of $1.4 million. Moreover, Republic's plans for cost savings depends upon its other employees too. No one group of employees may be considered in isolation since action by one group may affect that of others. Thus, the financial impact of an injunction for the flight attendants could be far reaching.
The last factor for consideration is the public interest. Clearly the public has a stake in both sides of this dispute. On balance, however, the public interest militates against the issuance of an injunction. While the odds of financial collapse are not high, the stakes certainly are. The prospect of losing the sixth largest domestic air carrier, at a time when many other air carriers are on the brink of collapse, will only work to the long term disadvantage of the public. As fewer airlines survive the harsh effects of the present economy and deregulation, the public is assured of less service and competition.
The public would also incur a cost unique to the loss of Republic. Republic is the only air carrier service to many smaller communities, particularly in the Midwest. In Minnesota Republic is a major employer and contributor to the economy. The loss of jobs, service, competition and business would be of considerable harm to the public.
This, more than most lawsuits, presents an unhappy choice. Both parties may legitimately claim the threat of irreparable harm. In weighing that harm, however, the greatest threat of harm would occur to the public and Republic if the court issued a preliminary injunction. Further, it is clear that the members of AFA would also be harmed if Republic were to go out of business. Therefore, plaintiff's motion for a preliminary injunction must be denied.
Plaintiff's motion papers, however, also request such other relief as the court deems just. Much of the threatened harm to the plaintiff could be avoided if the parties *791 submit to an expedited proceeding before the System Board. Fairness requires that Republic cooperate in plaintiff's attempt to receive an expedited decision.
The court has reviewed the complaint in light of its decision here and finds that it has resolved all the issues raised by this suit. At the hearing plaintiff's counsel indicated that the essence of plaintiff's complaint was for preliminary injunctive relief. Therefore, this action will be dismissed, but the court will retain jurisdiction for thirty days to reopen upon the showing of good cause.
NOTES
[1] Plaintiff filed a bond to meet the security requirement on March 17, 1982.
[2] Republic argues that Missouri-Illinois Railroad Company v. Order of Railway Conductors, 332 F.2d 793 (8th Cir. 1963), is controlling here. In that case the union argued that the dispute concerned the interpretation of a prior National Mediation Agreement, but the court found the union was trying to change the terms of the agreement itself. The court's result does not appear inconsistent with the standard applied in the more recent Eighth Circuit cases. See also United Transportation Union v. Burlington Northern, Inc., 458 F.2d 354 (8th Cir. 1972). Although the Eighth Circuit has not been presented recently with a case in which the parties arguably are involved both in ongoing major and minor disputes, the Fifth Circuit has used a similar standard in this type of situation to determine whether the one dispute was minor. See St. Louis Southwestern Railway Co. v. United Transportation Union, 646 F.2d 230 (5th Cir. 1981).
[3] Plaintiff's grievance to the System Board raises other issues of the fence agreement. Given the court's conclusion here, however, it is unnecessary to consider whether these also present arguable interpretations.
[4] These changes would only adversely affect the Republic West flight attendants immediately since the larger group of Republic East flight attendants voluntarily accepted temporary pay cuts and deferrals.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JASON J. COLLINS, §
§ No. 209, 2015
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID. No. 0904002027
Plaintiff Below- §
Appellee. §
Submitted: November 12, 2015
Decided: January 6, 2016
Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.
ORDER
This 6th day of January 2016, upon consideration of the notice to show
cause and the response and reply thereto, it appears to the Court that:
(1) The appellant, Jason Collins, filed this appeal from the Superior
Court’s order denying his motion for correction of sentence. Collins argued below
and on appeal that he is entitled to more credit time against the Level V portion of
his sixth violation of probation sentence. While the appeal was pending, Collins
completed the Level V portion of his sentence and was released from custody. The
Clerk of the Court issued a notice to Collins to show cause why the appeal should
be dismissed because the issue on appeal is now moot.
(2) Collins filed a response arguing that the issue of his entitlement to
Level V credit time is not moot because he is still serving Level I probation, and he
might violate his probation again and potentially be subject to more Level V
incarceration. The State asserts that the issue of Level V credit time is moot.
(3) After careful consideration, the Court concludes that Collins’ release
from Level V custody has rendered his request for Level V credit time moot.1 Any
decision on Collins’ request for credit time would amount to an impermissible
advisory opinion and would be a waste of scarce judicial resources.2 If Collins
should violate his probation for a seventh time, he can raise the issue of his
entitlement to Level V credit with the Superior Court before any future VOP
sentencing.
NOW, THEREFORE, IT IS ORDERED that the appeal is hereby
DISMISSED as moot.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
1
Ewell v. State, 2011 WL 1716455 (Del. May 5, 2011).
2
Sannini v. Casscells, 401 A.2d 927, 930 (Del. 1979).
2
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971 P.2d 414 (1998)
157 Or. App. 237
Jo RR McCULLOCH, Personal Representative and Beneficiary of the Estate of Ladelle K. McCulloch, Respondent-Cross-Appellant,
v.
PRICE WATERHOUSE LLP, a Delaware general limited liability partnership, and David G. Efurd, Appellants-Cross-Respondents,
and
Timothy R. Slapnicka, Donald L. Irving, John Kretchmer, Bruce Shepherd, and Roy E. Stowd, Jr., dba Price Waterhouse, an Oregon partnership, Defendants.
9508-05814; CA A95172.
Court of Appeals of Oregon.
Argued and Submitted July 22, 1998.
Decided November 25, 1998.
*415 Per A. Ramfjord, Portland, argued the cause for appellantscross-respondents. With him on the briefs were Keith M. Garza, Hilary K. Krane, Charles F. Adams and Stoel Rives LLP.
Michael A. Lehner, Portland, argued the cause for respondentcross-appellant. With him on the briefs was Lehner, Mitchell, Rodrigues & Sears.
Before WARREN, Presiding Judge, and EDMONDS and ARMSTRONG, Judges.
EDMONDS, J.
This appeal by defendants is from a judgment for plaintiff for damages for accounting malpractice. Defendants assign error, in part, to the trial court's failure to submit to the jury all of defendants' allegations against plaintiff of comparative fault and the failure to mitigate damages. Also, defendants assign error to the trial court's failure to rule that the recovery of damages for interest is precluded as a matter of law. Plaintiff cross-appeals. Plaintiff assigns error to the trial court's grant of defendants' motion for summary judgment on plaintiff's Unlawful Trade Practices claim and defendants' motions to strike plaintiff's claims for punitive and emotional distress damages. We reverse on appeal and reverse, in part, on cross-appeal.
Plaintiff is the personal representative and the beneficiary of his mother's estate. Defendants are an accounting firm and an accountant working for that firm.[1] Plaintiff hired defendants to help with the filing of tax returns and to assist with other accounting issues related to the estate. After the tax returns were filed, problems arose that resulted in assessments by the Internal Revenue Service (IRS), including penalties and interest. Eventually, plaintiff filed a complaint against defendants for damages arising from the assessments that included allegations of negligence, breach of fiduciary duty and unlawful trade practices.
Defendants' answer to plaintiff's complaint included these affirmative defenses:
"Defendants allege that plaintiff is comparatively at fault and/or contributorily negligent for all injuries asserted and, therefore, is not entitled to recovery or must have any recovery reduced in accordance with his proportional fault.
"Defendants allege that plaintiff failed to mitigate any damages or avoid any negative consequences of defendants' actions and, therefore, is not entitled to any recovery or must have any recovery reduced to the extent of his failure to mitigate." (Headings omitted.)
Plaintiff did not move to strike or to make more definite and certain defendants' affirmative defenses, and the matter went to trial. At the close of defendants' case, but before plaintiff called rebuttal witnesses, the trial court requested that defendants reduce to writing those acts or omissions that they contended were the basis for their allegations.[2] The trial court's request came after several discussions with the parties' attorneys about the format and content of the jury instructions. Defendants complied with *416 the court's direction and submitted a list of six specifications of acts or omissions that they contended were encompassed by the allegations. The specifications included specification number 3: "Misrepresenting facts and failing to engage adequate representation during the May 10, 1995 IRS Appeals Hearings Conference," and specification number 6: "Failing to avoid portions of the failure to file and failure to pay penalties by correcting the IRS's penalty calculations."
The trial court refused to submit specifications 3 and 6 to the jury. It explained:
"Had the defendants made this specification of fault on their own at the beginning of the case, I would be giving it. But I don't think it's fair to get this specific and this refined after argument.
"Now, those points, 3 and 6, were argued to the jury, and they know about it, and they know defendants contend they are important. And they could very well play in the jury's assessment of damages. But my decision not to give 3 and 6 as specifications of fault has more to do with the fact that defendants never specified them in the beginning than it does anything else."
Ultimately, the trial court gave the jury a "Summary of Claims" as part of the jury instructions that included only the other specifications. The trial court also instructed the jury:
"Likewise, for the Defendants to prevail on their claims that [plaintiff] was negligent in causing or in increasing the damage, they have to prove by a preponderance of the evidence at least one of the four things contended was negligent on his part and that that was a substantial factor in causing damage."
ORCP 23 B provides, in part:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made * * * but failure so to amend does not affect the result of the trial of these issues."
A refusal to submit a party's theory of the case or defense to the jury is error when there is any evidence, however slight, from which reasonable minds could find for that party. Snabel v. Barber et al., 137 Or. 88, 95, 300 P. 331 (1931); Mounts v. Knodel, 83 Or.App. 90, 97, 730 P.2d 594 (1986). The record demonstrates that the May 10 conference mentioned in specification 3 was the centerpiece of plaintiff's case from opening statements through closing arguments. Plaintiff's witnesses were cross-examined about the facts presented by plaintiff and his representative to the IRS at that conference. In addition, defendants presented evidence calling into question the witnesses' testimony and the lack of professional credentials possessed by plaintiff's representative at the meeting with the IRS. Plaintiff made no objections to the introduction of evidence by defendants on these subjects, nor did plaintiff object when defendants' expert testified to an error in the IRS penalty calculations. In fact, plaintiff called his expert back as a rebuttal witness to testify on that subject.
The trial court correctly acknowledged that there was evidence on the issues raised under the two excluded specifications. However, it erred under ORCP 23 B when it declined to submit them to the jury. The import of ORCP 23 B is that even if issues are not framed by a pleading, they should be submitted to the jury when the parties have expressly or impliedly consented to litigating them. Here, both parties offered evidence on the issues later identified as specifications 3 and 6, and the trial court erred by not submitting those issues to the jury. Although the issues were argued by the parties to the jury, the court's instruction that defendant's claims of comparative fault and the failure to mitigate damages were limited to the other four specifications could likely have affected the jury's result. Because defendants were deprived of the submission to the jury of a material part of the theory of their case by the court's ruling, they are entitled to a new trial.
Defendants' third, fourth, and fifth assignments of error concern whether the *417 interest assessed against plaintiff by the IRS is recoverable as damages from defendants. This issue is one of first impression in Oregon. Defendants argue that the majority of courts that have considered the issue have held that the recovery of damages for the interest is precluded as a matter of law and that we should adopt the majority rule. Because the issue of whether plaintiff can recover damages for the interest will arise again on retrial in the event that defendants are found liable, we address the issue.
In general, damages in a negligence claim must flow as "a natural and continuous sequence, uninterruptedly connecting the breach of duty with the damage, as cause and effect." Chambers v. Everding & Farrell, 71 Or. 521, 532, 143 P. 616 (1914) (quoting Shearman & Redfield, Negligence § 5 (6th ed)). The policy underlying the assessment of damages is that plaintiff is entitled to recover only such sums as will compensate him for the loss suffered as a result of defendants' wrong. Yamaha Store of Bend, Oregon, Inc. v. Yamaha Motor Corp., 310 Or. 333, 344, 798 P.2d 656 (1990), modified on other grounds, 311 Or. 88, 806 P.2d 123 (1991) (citing Budd v. Multnomah St. Ry. Co., 15 Or. 413, 419, 15 P. 659 (1887)).
We have twice considered similar issues. In Hoage v. Westlund, 43 Or.App. 435, 602 P.2d 1147 (1979), the seller of real property had agreed with the buyer that the accrued taxes would be prorated as of the date of the sale. The title company handling the transaction was instructed to prorate the taxes in accordance with the parties' agreement but failed to do so. The seller paid the taxes and brought an action against the buyer to recover the amounts that he had paid for the buyer's share. The buyer then brought a cross-claim against the title company. One of the issues was whether the buyer could recover interest from the title company that he owed on the amount paid by the seller. "Interest is money paid for the use of money." Id. at 441, 602 P.2d 1147. We held that the buyer could not recover against the title company because the buyer had the use of the seller's money for three years after the seller paid the buyer's share of the taxes. The cost to the buyer of that use was not attributable to the title company's failure to prorate the taxes but to the buyer's election to use the seller's money.
In Simpson v. State of Oregon, 105 Or. App. 523, 805 P.2d 734 (1991), a court clerk failed to send notice of a judgment to the plaintiff. Interest accrued on the amount of the judgment that the plaintiff owed. The plaintiff brought a negligence claim against the state, seeking to recover only the interest that had accrued during the time between the date of judgment and when the plaintiff received notice. The trial court found for the plaintiff, and we affirmed.
We distinguished our holding in Hoage. We said that:
"Plaintiff does not argue that he is entitled to the accrued interest as compensation for the use of his money. Rather, he argues that he is entitled to the accrued interest, because it is damage resulting directly from defendant's negligence." Simpson, 105 Or.App. at 526, 805 P.2d 734.
In other words, the plaintiff in Simpson became liable for a sum, i.e., the accrued interest, that he would not otherwise have incurred but for the negligence of the state. We held that, under those circumstances, the plaintiff could recover damages based on the accrued interest. In contrast, the title company's negligence did not directly cause the buyer's liability for interest on the amount that the seller had paid in Hoage. Rather, the buyer's delay in reimbursing the seller was the direct cause of the accrual of interest.
In this case, plaintiff seeks to recover as damages the interest charged by the IRS. He argues that the interest assessment is directly attributable to defendants' negligence and that our holding in Simpson controls. Defendants counter:
"Like [the buyer in Hoage], [plaintiff] had the `use of the [tax owing but not paid during the entire period the interest accrued] and, therefore, should not be allowed to recover' the interest he owes the IRS * * * from [defendants]."
Defendants point out that plaintiff had not paid the interest assessed as of the trial date except for the estimated payments made in *418 1992 and a later payment in 1995. However, there is a critical difference between this case and Hoage. In Hoage, the buyer sought to recover the cost of the use of a third party's money from the negligent party. Here, plaintiff seeks to recover damages for interest that was assessed as a direct result of defendants' negligence. In that respect, this case is similar to Simpson, except that plaintiff seeks to recover also the principal amount of the taxes.
Defendants also argue that we should follow the lead of other jurisdictions that have held that a taxpayer who pays too little taxes because of a mistake or wrongdoing of another cannot recover damages for accrued interest from the wrongdoer because a windfall to the taxpayer would result. Included in those jurisdictions is the State of Washington. In Leendertsen v. Price Waterhouse, 81 Wash. App. 762, 766, 916 P.2d 449, 451,rev. den. 130 Wash.2d 1009, 928 P.2d 412 (1996),[3] the Court of Appeals observed:
"In Freschi v. Grand Coal Venture, 767 F.2d 1041 (2d Cir.1985), vacated on other grounds, 478 U.S. 1015, 106 S.Ct. 3325, 92 L.Ed.2d 731 (1986), plaintiff brought action against defendants for violating federal securities laws by marketing fraudulent tax shelters. The court held that interest and penalties paid to the IRS were not recoverable consequential damages because such monies constituted a return by the plaintiff to the IRS `of what would otherwise be a windfall resulting from his opportunity to use money to which he was not entitled.' Freschi, 767 F.2d at 1051; see also Stone v. Kirk, 8 F.3d 1079 (6th Cir.1993) (plaintiffs not entitled to recover interest paid on back taxes because plaintiffs had the use of the tax money). Similarly, when clients sued their investment advisor for negligent misrepresentation, the Alaska Supreme Court held that the clients could not recover interest paid because the clients `had the use of these monies and, presumably, were able to earn interest while they held it.' Orsini v. Bratten, 713 P.2d 791, 794 (Alaska 1986); accord Gudschinsky v. Hartill, 815 P.2d 851 (Alaska 1991). Likewise, in Alpert v. Shea Gould Climenko & Casey, 160 A.D.2d 67, 559 N.Y.S.2d 312 (1990), investors in a tax shelter brought a fraud action against law firms that prepared erroneous tax opinion letters. Citing Freschi, the court precluded recovery of interest, reasoning that `the equities militate in favor of barring recovery of such interest rather than allowing plaintiffs the windfall of both having used the tax monies for seven years and recovering all interest thereon.' Alpert, 160 A.D.2d at 72, 559 N.Y.S.2d 312."[4]
The court in Leendertsen concluded:
"First, the [plaintiffs'] independent business judgment as to where to invest the money breaks the legal causation element. * * * Legal causation is largely a policy question as to how far the consequences of a defendant's acts should extend. Hartley v. State, 103 Wash.2d 768, 779, 698 P.2d 77 (1985). Here, the speculative nature of causation, coupled with the difficulty of proving where the money was invested, weigh against a finding of proximate cause. * * * Second, damages from poor investing are too speculative to blame upon the defendants. The [plaintiffs] had the value of the use of the money during that time and would be unjustly enriched to recover that interest from another source. Accordingly, we hold that interest owed to the IRS as a result of an underpayment of taxes is not recoverable from the defendants." *419 81 Wash.App. at 767-68, 916 P.2d 449 (internal footnote omitted).
We understand the Washington court's reasoning to embody two concerns: (1) a windfall: i.e., the taxpayer could recover damages for interest and at the same time a return from the use of the monies that could have been applied to the tax liability; and (2) the speculative nature of the causation of the damage. We conclude that neither concern supports the absolute bar to recovery of damages arising from accrued interest on the facts of this case under Oregon law. Whether a windfall occurs will be dependent on the individual taxpayer's circumstances in each case. Not all taxpayers when faced with a tax assessment find themselves in the same financial condition. It could be that a taxpayer will not have available funds to invest while interest is accruing on the tax obligation. Moreover, many of the federal cases relied on by the Washington court appear to be concerned about awarding damages for accrued interest in addition to prejudgment interest on the amount represented by the unpaid taxes. That issue is not involved in this case.
As to the purported speculative nature of the causation of damages, we think a proper analogy can be drawn to the rule of damages regarding proof of loss of future profits with reasonable certainty under Oregon law. In that context, the issue of whether a business, even an untried venture, will produce profits in the future is generally for the trier of fact. Courts are to intervene and take the issue from the jury only when it can be said that the evidence is "clearly insufficient" and that no reasonable person could be persuaded of the validity of the claim on the evidence presented. Welch v. U.S. Bancorp, 286 Or. 673, 704-705, 596 P.2d 947 (1979). We are not unmindful of the difficulty in litigating these kinds of issues. However, we note that plaintiffs retain the burden of proof of the causation and amount of each claim of damage by a preponderance of the evidence and that, to the extent that defendants choose to contend that plaintiffs have failed to mitigate their damage, discovery is available under the rules of Oregon Civil Procedure to augment their allegations.[5] Accordingly, we decline to adopt the rule that defendants propose. We hold that, under the circumstances of this case, plaintiff is not barred as a matter of law from seeking damages based on the interest obligation that he owes to the IRS.
On cross-appeal, plaintiff makes three assignments of error. First, plaintiff asserts that the trial court erred in granting defendants' motion for partial summary judgment on plaintiff's claim under the Unfair Trade Practices Act (UTPA). ORS 646.605 et seq. On review of a summary judgment, we determine whether there exists a genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. ORCP 47 C. We review the record in the light most favorable to plaintiff. Id.
Plaintiff's complaint alleges, in part:
"Defendants' conduct constitutes unlawful trade practices and violates the provisions of ORS § 646.608(c)(e)(g)(q)(t) in the following particulars:
"a) caused plaintiff confusion as to whether the IRS had reviewed and accepted the federal estate tax returns as filed or/and whether the Oregon Department of Revenue had reviewed and accepted the Oregon inheritance tax returns as filed (c);
"b) misrepresented to plaintiff that the IRS had accepted plaintiff's federal estate tax returns as filed (e);
"c) misrepresented that plaintiff's tax returns were of a particular standard of quality when in fact they were not (g);
"d) promised to prepare and file the decedent's federal estate tax and Oregon inheritance tax returns before the filing deadlines and did not (q);
"e) did not disclose to plaintiff material defects in the returns and the refusal of the IRS and Oregon Department of Revenue to accept the returns as filed (t)."
*420 Defendants sought summary judgment on plaintiff's UTPA claim on the ground that "the documentary evidence conclusively establishes that plaintiff's claim is barred by the UTPA's one-year statute of limitations." Plaintiff filed his claim on August 21, 1995. ORS 646.638(6) provides that actions brought under the UTPA must be "commenced within one year from the discovery of the unlawful method, act or practice." The period of limitation begins to run when the plaintiff knows or should have known of the alleged misrepresentations. Bodin v. B. & L. Furniture Co., 42 Or.App. 731, 734, 601 P.2d 848 (1979). We apply a two-step analysis to determine whether plaintiff should have known of the alleged misrepresentations before August 21, 1994: "First, it must appear that plaintiff had sufficient knowledge to `excite attention and put a party upon his guard or call for an inquiry * * *.' [Second] [i]f plaintiff had such knowledge, it must also appear that `a reasonably diligent inquiry would disclose' the fraud." Mathies v. Hoeck, 284 Or. 539, 543, 588 P.2d 1 (1978) (citations omitted).
The first step focuses on what information plaintiff had before August 21, 1994. Defendants point to correspondence to plaintiff from the IRS and defendants that informed plaintiff that the returns were not filed timely, that various positions taken in those returns were being challenged and that the returns were being audited. The correspondence begins in December 22, 1992 and culminates with a bill from defendants on August 15, 1994 for "Internal Revenue Service audit issues * * * and the related proposed federal tax deficiency assessments."
Plaintiff claims that he became aware of defendants' misrepresentations and the true state of affairs regarding the tax returns during a meeting in December 1994 with the IRS. His affidavit states that, until that meeting, he had relied on defendants' representations that the assessment of penalties or interest reflecting a late filing was a mistake by IRS. He avers that when he raised concerns about the correspondence that he had received, defendants represented to him that they were continuing to take care of any problems and that everything was under control. Plaintiff argues that, because he reasonably relied on defendants' representations and assurances, there is a genuine issue of material fact about whether he acted with reasonable diligence under the second step of the inquiry.
In Gaston v. Parsons, 318 Or. 247, 864 P.2d 1319 (1994), the court addressed the issue of when the statute of limitations begins to run in a medical negligence action. The applicable statute, ORS 12.110(4), required that actions be "commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered." The court interpreted the word "injury" in the statute to consist of three elements: harm, causation, and tortious conduct. The court explained that whether a reasonable person should be aware of tortious conduct could be a question of fact depending on the relevant circumstances. The court's language is instructive:
"Assurances made by the attending physician may also have a bearing on whether a reasonable person would be aware of a substantial possibility of tortious conduct. * * * A physician's assurances may be particularly influential on a plaintiff because the physician-patient relationship is `a relationship of trust and confidence * * * in which continued treatment or other resort to the skills of the defendant is required.' Cavan v. General Motors, 280 Or. 455, 458, 571 P.2d 1249 (1977). If the physician makes a representation on which a plaintiff reasonably relies, it could have the effect of delaying a reasonable person from becoming aware of a substantial possibility of tortious conduct." Gaston, 318 Or. at 257, 864 P.2d 1319.
Defendants respond that the language in Gaston has no application to this case because the UTPA is not concerned with the discovery of an injury or of a legally cognizable harm, but rather the discovery of an unlawful method, act or practice. We disagree with that assertion. In the context of the facts of this case, plaintiff had a relationship with defendants that is analogous to the physician-patient relationship in Gaston. Necessarily, that relationship required plaintiff to rely on defendants' expertise and their *421 representations regarding the import of the IRS's actions. Even though the correspondence was sufficient to put plaintiff on notice before August 1994 that the returns were not filed on time and that the IRS had not accepted plaintiff's return as filed, there is a genuine issue of material fact about whether plaintiff should have reasonably relied on defendants' representations that the IRS's positions were mistaken and would be rectified. A trier of fact could conclude from the evidence in the summary judgment record that the delay in filing the complaint was due to plaintiff's reasonable reliance on defendants' representations. Therefore, the trial court erred in granting defendants' motion for summary judgment on plaintiff's UTPA claim on the ground that it was barred by the statute of limitations.[6]
At the close of plaintiff's case, the trial court withdrew plaintiff's request for punitive damages from the jury's consideration. Plaintiff cross-appeals from this ruling. As the result of our disposition of defendants' appeal, this case will have to be retried. A ruling on whether or not plaintiff offered sufficient evidence to warrant the submission of the request to the jury on this record would be solely advisory, because there will be a new evidentiary record on retrial. Therefore, we decline to reach plaintiff's assignment of error regarding punitive damages.
Plaintiff also assigns error to the trial court's grant of defendants' motion to strike plaintiff's claim for damages for emotional distress caused by defendants' negligence and breach of fiduciary duty. ORCP 21 E. Because this issue concerns a question of law that will arise on retrial, we decide the issue. Plaintiff's complaint alleges, in part:
"[P]laintiff has suffered severe emotional distress in the form of fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, nausea, anxiety and sleeplessness for which he should be compensated $500,000 in general damages and in excess of $10,000 for special medical expenses."
Defendants argue that damages for emotional distress are not available, as a matter of law, in cases of negligence and breach of fiduciary duty when the only underlying injury is economic. Plaintiff responds that the law should "permit damages for emotional distress whenever a defendant is found to have recklessly violated fiduciary obligations which it knew or should know would cause emotional distress."
In reviewing an ORCP 21 ruling, we accept as true all factual allegations in the complaint and draw all reasonable inferences in the light most favorable to the nonmoving party; then, we determine whether the complaint will support, as a matter of law, the recovery of the claimed damages. Bennett v. Baugh, 154 Or.App. 397, 404, 961 P.2d 883 (1998). Plaintiff seeks damages for emotional distress based on defendants' failure to file proper and timely returns, their failure to advise plaintiff to terminate the trust and their alleged misrepresentations to plaintiff regarding those matters.[7] Damages for the negligent infliction of emotional distress have been allowed under limited circumstances. In Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 558-59, 652 P.2d 318 (1982), the court explained:
"If there are few causes of action for psychic or emotional harm as such, the reason is not found in objections to monetary damages for harm of that nature. The reason may be found by focusing, not on the nature of the plaintiff's loss, but on the source and scope of the defendant's liability. This court has recognized common law liability for psychic injury alone when defendant's conduct was either intentional *422 or equivalently reckless of another's feelings in a responsible relationship,[8]or when it infringed some legally protected interest apart from causing the claimed distress, even when only negligently. The court has found infringements of legal rights in an invasion of privacy, in the negligent removal of the remains of a deceased spouse, and in the negligent delivery of a passport that allowed plaintiff's child to be taken from this country. But we have not yet extended liability for ordinary negligence to solely psychic or emotional injury not accompanying any actual or threatened physical harm or any injury to another legally protected interest." (Emphasis added; internal footnotes and citations omitted.)
Accordingly, we focus on the source and scope of defendants' liability. Assuming, without deciding, that defendants' conduct, as alleged, infringed on a legally protected interest of plaintiff, we hold that the infringement of that interest is not of sufficient importance to warrant an award of damages for emotional distress. The underlying interest arises from the relationship between plaintiff as a client and defendants as accountants. Even though the relationship is fiduciary in nature, it is fundamentally an economic one. It is not similar to the interests that the court held cognizable for purposes of emotional damages in Norwest. See also Bennett, 154 Or.App. at 406, 961 P.2d 883 (holding that emotional distress damages related to an attorney-client relationship was properly stricken because the underlying interest was chiefly economic); Collver v. Salem Insurance Agency, Inc., 132 Or.App. 52, 64-66, 887 P.2d 836 (1994), rev. den. 320 Or. 598, 891 P.2d 1 (1995) (holding that emotional distress damages related to a negligence claim by an insured against an insurance agent should have been stricken). The trial court did not err in granting defendants' motion to strike.
Reversed and remanded on appeal; summary judgment on UTPA claim reversed and remanded on cross-appeal; otherwise affirmed.
NOTES
[1] Additional defendants were dismissed at various stages in the proceedings and any issues related to them are not involved in this appeal.
[2] ORCP 21 D provides, in part:
"[U]pon the court's own initiative at any time, the court may require the pleading to be made definite and certain by amendment when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge, defense, or reply is not apparent."
[3] In Leendertsen, the plaintiffs received approximately $400,000 in excessive tax refunds because of the negligence of their accountants. After the IRS discovered the mistakes in the tax returns, the plaintiffs were required to pay the IRS $634,-600, which included interest. They sued, claiming that the defendants had negligently promised them that the tax refunds could be used in their new businesses. They sought as part of their damage both the tax and the interest that they owed to the IRS.
[4] The Washington court also discussed an Oklahoma case, Wynn v. Estate of Holmes, 815 P.2d, 1231, 1235 (Okla.App. 1991), that held that the interest owed to the IRS was recoverable because of the collateral source rule, which provides that a wrongdoer's liability cannot be offset by an independent source compensating the plaintiff for the same injury. The Leendertsen court ruled that the collateral source rule was not significant to its analysis.
[5] The general rule is that a wrongdoer has the burden of proof to show that the plaintiff failed to take reasonable measures to mitigate damages or avoid consequences. Enco, Inc. v. F.C. Russell Co., 210 Or. 324, 339, 311 P.2d 737 (1957).
[6] Defendants also argue on appeal that plaintiff's complaint failed to state a claim because the UTPA does not apply to professional malpractice. However, defendants did not move to dismiss under ORCP 21 and did not raise that ground in their written motion for summary judgment. Even though the issue was discussed at oral argument on the motion for summary judgment, we are not persuaded by the record before us that plaintiff and the trial court had an adequate opportunity to address the issue. Accordingly, we conclude that that issue is not preserved for the purpose of appellate review. ORAP 5.45(2).
[7] Plaintiff does not appeal from the trial court's ORCP 21 dismissal of his claim for intentional or reckless infliction of emotional distress based, in part, on these representations.
[8] In McGanty v. Staudenraus, 321 Or. 532, 545-551, 901 P.2d 841 (1995), the court explained that the existence of a responsible relationship affects the "conduct" element of the tort of intentional infliction of emotional distress and not the "intent" element.
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586 F.Supp. 302 (1984)
Edward McMANUS, Plaintiff,
v.
Michele McCARTHY, Eric Heckl, Donald McWeeney and Arthur R. Finley, Defendants.
No. 82 Civ. 4788 (RLC).
United States District Court, S.D. New York.
March 7, 1984.
*303 Zwerling & Zwerling, New York City, for plaintiff; Linda Strumpf, New York City, of counsel.
Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendants; Twila L. Perry, Asst. U.S. Atty., of counsel.
OPINION
ROBERT L. CARTER, District Judge.
Plaintiff in this libel action, removed from New York State Supreme Court, is a merchant marine captain. Defendants Michele McCarthy, Eric Heckl and Donald McWeeney were, at the relevant time, midshipmen at the United States Merchant Marine Academy at Kings Point, New York. Defendant Arthur R. Finley, a captain, is an Academy Training Representative at Kings Point. Plaintiff alleges that he was libeled by two memoranda sent to Captain Finley, one by McCarthy and one by Heckl and McWeeney. Both reports were subsequently sent to plaintiff's employer, Apex Marine Corp.
The allegedly defamatory memoranda were prepared, on Captain Finley's orders, to explain an incident that had occurred in connection with McCarthy's assignment to plaintiff's vessel, the Golden Monarch. All students at the Academy must fulfill certain shipboard training requirements, and on or about March 19, 1982, McCarthy was assigned to serve as deck cadet aboard the Golden Monarch. Along with Heckl and McWeeney, McCarthy went to Reynolds Launch Service in Staten Island, New York, for transportation to the Golden Monarch. At the launch site the three midshipmen first encountered plaintiff. Precisely who said what to whom is intensely disputed by the parties, but it is agreed that McCarthy did not board the vessel. Captain Finley ordered McCarthy, Heckl and McWeeney to submit written reports to him accounting for McCarthy's failure to join the Golden Monarch. The reports they produced, and which plaintiff claims defamed him, are reproduced in the appendix to this opinion.
Official Immunity
Defendants have moved for summary judgment dismissing the complaint, claiming that, as federal employees, they are absolutely immune from liability for common law torts committed in the course of their employment. Plaintiff denies that official immunity is absolute, that the acts complained of were within the scope of defendants' duties, and that defendants were, in fact, federal employees.
(a) Captain Finley
Although a federal official has only a qualified, good faith immunity to liability for torts involving constitutional or statutory violations, Harlow v. Fitzgerald, 457 *304 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), official immunity is absolute if the claim is rooted in the common law and the challenged actions were within the "outer perimeter" of the official's duties. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); see Butz v. Economou, 438 U.S. at 495, 98 S.Ct. at 2905; Sprecher v. Graber, 716 F.2d 968, 975 (2d Cir.1983); Donohoe v. Watt, 546 F.Supp. 753, 755 (D.D.C.1982), aff'd, 713 F.2d 864 (D.C.Cir.1983).
As an Academy Training Representative, Captain Finley supervises the shipboard training phase of the cadets' schooling. Finley Aff. ¶ 2. This position requires him to arrange placements with private shipping companies and to insure that the ships to which cadets are assigned provide a safe working and learning environment. Id. ¶¶ 3, 5. It is also his job to investigate any allegations of misconduct by cadets on board ship. Id. ¶ 4. Given these responsibilities, there is no question that it was well within the "outer perimeter" of Captain Finley's duties to order the midshipmen to file reports on the incident involving plaintiff, and, if he believed it appropriate, to forward copies of those reports to Apex Marine Corp.[1]
Plaintiff does not seriously dispute this, but contends that Captain Finley should have made a more complete investigation of the incident before permitting the memoranda to be forwarded to plaintiff's employer. Even assuming, however, that Captain Finley did fail to complete a proper investigation, and that this rendered his otherwise unimpeachable decision to send the reports to Apex wrongful, sending the reports was still squarely within the ambit of his authority.
[T]o separate the activity that constitutes the wrong from its surrounding context an otherwise proper exercise of authority would effectively emasculate the immunity defense. Once the wrongful acts are excluded from an exercise of authority, only innocuous activity remains to which immunity would be available. Thus, the defense would apply only to conduct for which it is not needed.
Wallen v. Domm, 700 F.2d 124, 126 (4th Cir.1983).
Nothing in the record casts any doubt upon Captain Finley's status as a federal employee. The United States Merchant Marine Academy is wholly within the United States Department of Transportation, 46 U.S.C. § 1295 et seq., and Captain Finley has stated that he is paid by government check. Finley Aff. ¶ 6. Although plaintiff appears to question Captain Finley's employment status, he has introduced no evidence that creates a question of fact that would preclude summary judgment on this issue. Therefore, since plaintiff's claim sounds only in the common law of tort, see Paul v. Davis, 424 U.S. 693, 711-712, 96 S.Ct. 1155, 1165-1166, 47 L.Ed.2d 405 (1976), the court finds that the doctrine of official immunity provides Captain Finley with a complete defense to this action.
(b) The Cadets
McCarthy, Heckl and McWeeney prepared their memoranda at the express command of their supervisor and superior officer, Captain Finley. McCarthy Aff. ¶ 10; Heckl Aff. ¶ 7; Finley Aff. ¶¶ 8, 11. Thus there can be no doubt that it was within the "outer perimeter" of their duties to do so. Federal employees instructed to submit reports to their supervisors evaluating personnel or detailing incidents under investigation have consistently been held absolutely immune from liability for allegedly defamatory statements contained in those reports. See e.g. Ruderer v. Meyer, 413 F.2d 175 (8th Cir.1969), cert. denied, 396 U.S. 936, 90 S.Ct. 280, 24 L.Ed.2d 235 (1969); Preble v. Johnson, 275 F.2d 275 (10th Cir.1960); Malone v. Longo, 463 F.Supp. 139 (E.D.N.Y.1979). Indeed, it would plainly be absurd to conclude that a federal official has the authority to require *305 his subordinates to file reports but that the latter exceed the scope of their duty when they produce them. See Gordon v. Adcock, 441 F.2d 261 (9th Cir.1971). Plaintiff argues that the cadets moved outside the "outer perimeter" of their duty when they wilfully included libelous falsehoods in their reports, but as noted above, if the alleged wrong is separated from its context and judged separately, nothing remains of the immunity defense. Wallen v. Domm, 700 F.2d at 126.
Plaintiff also argues that the cadets were not federal employees. While it is true that midshipmen McCarthy, Heckl and McWeeney were students and not salaried government workers, their relationship to the federal government warrants application of the official immunity doctrine to them under the circumstances of this case. Academy cadets are not "hired" by the United States, but they are selected for admission according to federally prescribed procedures and their room, board and educational supplies are provided by the government. More importantly, they are under the direct supervision and control of their superior officers at the Academy, who are federal employees. Although not strictly under military discipline, cf. Fischer v. United States, 451 F.Supp. 918 (E.D. N.Y.1978), they are certainly required to obey the legitimate orders of those superiors. While carrying out the tasks assigned to them, they are performing a federal function under the control of federal officials and are, therefore, entitled to the immunities accorded to those who are federal "employees" in a more technical sense. See Becker v. Philco Corp., 372 F.2d 771 (4th Cir.1967) (government contractor entitled to official immunity for submitting required report to defense department), cert. denied 389 U.S. 979, 88 S.Ct. 408, 19 L.Ed.2d 473 (1967); Blum v. Campbell, 355 F.Supp. 1220 (D.Md.1972) (building management company and its vice-president entitled to official immunity when managing FHA owned building under direct control and supervision of FHA). Here, the defendant cadets, by virtue of their affiliation with a United States educational institution, were required to comply with a federal official's order that they prepare and submit to him a report concerning an incident connected to the school's official business. The principles behind the doctrine of official immunity are fully applicable to their case.
Although the court has concluded that the cadet defendants are immune from liability for writing the memoranda and submitting them to Captain Finley, it does not follow that their immunity extends to the forwarding of the reports to plaintiff's employer, Apex Marine Corp. Since it would have been within the scope of Captain Finley's duties to send the two reports to Apex, the cadets would also be immune from liability for having done so if Captain Finley had instructed them to do it. But the evidence before the court, at the very least, raises a question of fact in this regard. Nothing presently in the record indicates that the students had a duty to send their reports to Apex on their own initiative. While the court need not rule, at this time, that it was beyond the "outer perimeter" of the cadets' duty to send the reports to Apex, summary judgment for defendants is precluded on this issue.
Defendant Heckl admits to having sent copies of the reports to Apex. Heckl Aff. ¶ 10. McCarthy admits to having known that Heckl would do so. McCarthy Aff. ¶ 11. Defendants' affidavits are consistent in their statements that McWeeney neither authorized nor consented to Heckl's action, and was, in fact, unaware of Heckl's intention. Plaintiff offers nothing to the contrary. The complaint should thus be dismissed as against McWeeney.
Qualified Privilege
On public policy grounds, New York recognizes a qualified privilege for communications made by a person, having an interest in or duty with respect to the subject matter, to another person with a corresponding interest or duty. The privilege is qualified, rather than absolute, in that it applies only to communications made in good faith. If plaintiff can prove that defendant *306 was motivated not by a genuine belief that he had a legal or moral duty to communicate certain facts to an interested party, but by actual malice, ill-will, personal spite or culpable recklessness or negligence, the privilege is destroyed. Stillman v. Ford, 22 N.Y.2d 48, 290 N.Y.S.2d 893, 897, 238 N.E.2d 304 (1968); see Perfect Fit Industries v. Acme Quilting Co., 494 F.Supp. 505, 507 (S.D.N.Y.1980) (Motley, C.J.).
Defendants argue that they shared with Captain L. Berger, the President of Apex Marine and the individual at Apex to whom the reports were sent, a legitimate concern for the quality of the shipboard training phase of Academy students' education. As well as the president of a company whose ships employ Academy cadets, Captain Berger is an active alumnus of Kings Point. Defendants conclude that the qualified privilege covers their communication to Captain Berger because its subject, plaintiff's behavior toward the cadet defendants and his general fitness to supervise cadets, touched this area of mutual interest.
However this may be, summary judgment cannot be granted because a factual dispute exists over defendants' good faith. The version of the incident at Reynolds Launch Service contained in the affidavits of plaintiff, Robert Rawson, the chief engineer of the Golden Monarch, who was on the scene, and Midshipman Matthews, who was also present, differs substantially from that contained in the allegedly libelous memoranda and in defendants' affidavits. What actually occurred is a question of fact incapable of resolution on a motion for summary judgment. Heymann v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir.1975). It follows that plaintiff's affidavits also raise the question of whether defendants' knew their account of events to be false at the time they wrote their reports. If plaintiff can prove that this was the case, he will succeed in proving actual malice and defendants will lose the qualified privilege. Neufeld v. Schachner, 61 A.D.2d 952, 403 N.Y.S.2d 41, 43 (1st Dep't. 1978); Mercedes-Benz of North America v. Finberg, 58 A.D.2d 808, 396 N.Y.S.2d 260, 262 (2d Dep't. 1977).
Libel Per Se
The court finds no merit in defendants' contention that the memoranda are not libelous per se, and thus that the complaint must be dismissed for failure to plead special damages. Perfect Fit Industries v. Acme Quilting Co., 494 F.Supp. 505, 508 (S.D.N.Y.1980) (Motley, C.J.); McGraw v. Watkins, 49 A.D.2d 958, 373 N.Y.S.2d 663, 665 (3d Dep't. 1975). Words tending to disparage a person in his professional capacity by imputing to him professional misconduct, incompetence, ignorance or unfitness are libelous per se. McCullough v. Certain Teed Products Corp., 70 A.D.2d 771, 417 N.Y.S.2d 353, 355 (4th Dep't. 1979); Four Star Stage Lighting, Inc. v. Merrick, 56 A.D.2d 767, 392 N.Y. S.2d 297, 298 (1st Dep't. 1977). The memoranda here in question state, inter alia, that plaintiff was the cause of another cadet requesting discharge from the Golden Monarch; that one who did not drink aboard the Golden Monarch was made miserable by the crew; that five other merchant marine officers had refused to work with plaintiff and that plaintiff was proud of the fact; that plaintiff was a "known problem"; that it was questionable whether plaintiff was under the influence of alcohol; that plaintiff took pleasure in creating "highly intensified pressure situations"; that plaintiff would do everything in his power to undermine a cadet's learning experience; that the environment on the Golden Monarch was unsafe for a cadet; that plaintiff is ignorant of the responsibilities and duties of cadets; that plaintiff said that Kings Pointers "aren't worth a shit"; and that plaintiff pushed into defendant Heckl, threatening him by saying, "You better watch yourself asshole, or you're gonna get hurt."
Defendants argue that although the memoranda may question plaintiff's abilities as a teacher, they do not disparage his professional qualifications because plaintiff makes his living as a sea captain. The court, however, will not engage in so fine a dissection of plaintiff's job description. *307 Among plaintiff's responsibilities was supervising cadets assigned to his vessel. It is clear that a reader of defendants' reports might conclude that plaintiff was unfit for that aspect of his job and that he acted improperly in his professional relationship with defendants and other cadets with whom he had dealt.
Conclusion
The complaint is dismissed in its entirety as against defendants Finley and McWeeney. To the extent that it seeks relief for the publication of the allegedly libelous reports to Captain Finley, the complaint is also dismissed as against defendants McCarthy and Heckl. As plaintiff has stated a viable claim against Heckl and McCarthy for the publication of the memoranda to Captain Berger of Apex Marine Corp., defendants' motion for summary judgment is otherwise denied.[2]
IT IS SO ORDERED.
APPENDIX
March 11, 1982
MEMORANDUM FOR: Captain Arthur
R. Finley
ATR-NY
Subject: Midshipman Michele McCarthy,
Class of 1983D
SS GOLDEN MONARCH; Reasons
for not boarding
Midshipman Michele McCarthy, 2/c was instructed by ATR-NY, Captain Arthur R. Finley, to report to the SS GOLDEN MONARCH by 0200 March 11, 1982.
Midshipman McCarthy arrived at the Reynolds Launch Service on Staten Island at approximately 2300 on March 10, 1982, accompanied by Midshipman Eric E. Heckl and Midshipman Donald McWeeney, both first classmen.
Upon arrival the three encountered Midshipman Cynthia Matthews, 2/c, who informed them that Midshipman Lynn Craddock had specifically requested discharge from the Golden Monarch due to problems she encountered aboard with Captain McManus and the crew. Her discharge was granted by the ATR-NY, but Midshipman McCarthy is not sure whether Midshipman Craddock had apprised ATR-NY of the situation aboard the vessel.
Midshipman Matthews, 2/c, continued to describe the drinking habits of the crew stating that one who did not participate in these activities was made miserable by the crew.
At this point, all four midshipmen encountered the Captain, Chief Engineer, and several crew members. Upon introduction, the Captain became very hostile and stated that another Mass Maritime deck cadet was aboard and that he had precedence over Midshipman McCarthy. Midshipman McCarthy responded, "well, do you take two deck cadets. Arrangements have been made by my supervisor with your company for me to board". The Captain stated that that depended. Midshipman McCarthy stated, "do you want me or not. I am a good cadet and willing to learn". The Captain stated, "I don't want a good cadet, cadets are baggage and I want a good mate". At this she replied, "Yes sir. I see" and she went to discuss the situation further with Midshipman Matthews who advised her to seriously consider about boarding.
Meanwhile, the Captain went on to berate Kings Pointers and was very caustic with the two first class midshipmen.
It was at this point that Midshipman McCarthy decided to try and contact Captain Finley and inform him of the problem with the other Mass cadet aboard, but due to the lateness of the hours, this was decided against. It is important to note that the Captain never said he would accept Midshipman McCarthy aboard as the second cadet. He seemed very proud of the fact *308 that five officers had refused to sign on with him as Master. This only further proves that the man in a known problem, especially when shipping is so bad, it is rare that anyone will pass up a job.
Also, he and the Chief Engineer physically threatened Midshipman Heckl, who is no way provoked such a reaction. The Captain was treated with respect deserved by his rank by all three midshipmen and yet he continued to be very abusive and caustic toward us. It was questionable as to whether the Captain was under the influence of alcohol, but it was not noticeable to Midshipman McCarthy.
At this point, Midshipman McCarthy decided that it was essential that she not board the vessel in question in order to avoid eminent problems and heartache that would otherwise occur upon boarding. She felt that in view of all of the above, that Captain Finley would be in agreement with her decision.
It was very obvious that the Captain pleasured in running highly intensified pressure situations and would do everything in his power to undermine any possible learning experience that could be attained by a cadet.
It is in situations such as this that serious mistakes are made. On a tanker there is not room for even the smallest mistake as is proven by the recent explosion of the GOLDEN DOLPHIN of the same Apex Company. It was not a safe environment for any cadet to enter into.
All three Midshipmen strongly recommend that some action be taken to prevent future cadets from having to sail under the direction of Captain McManus and be subjected to his abusive manner and obvious dislike of Kings Pointers. It would not be a healthy atmosphere in which to enter, nor would it be the best environment in which to learn, which is the main purpose of the sea year.
Respectfully submitted,
/s/ Michele D. McCarthy 2/c
Michele D. McCarthy
1983 Deck
March 12, 1982
MEMORANDUM FOR: Captain Arthur
R. Finley
Subject: Midshipman Michele McCarthy,
83D
SS GOLDEN MONARCH: Reasons
for not boarding
On March 11, 1982, Midn. Heckl, 1/c, 6th Company Commander, Midn. McWeeney 1/c accompanied Midn. McCarthy 2/c to help her board the GOLDEN MONARCH via launch from Staten Island.
Upon reaching the launch, the above midshipman met Captain McManus. When Midn. McCarthy introduced herself as the deck cadet, Capt. McManus retorted very loudly "We already have a Mass. deck cadet and he has precedence!" To this, Midn. McCarthy replied that her supervisors had assigned her to the GOLDEN MONARCH and could he take 2 cadets. Capt. McManus replied he would, but "you have to be good." Midn. McCarthy replied that she was a good cadet and willing to learn. To this, Capt. McManus replied that he didn't need cadets, "they are baggage, you have to be a good mate." Capt. McManus obviously does not realize that cadets are put aboard to learn; were they already third mates, there would be little reason in assigning them to ships in the capacity as a cadet. The fore-going is of little consequence except to illustrate the fact that Capt. McManus is ignorant to the duties and responsibilities of cadets and would not be of benefit to their education aboard ship. Further he would serve to be a detriment to their career attitude as a young maturing adult. The following account will support this.
At this point, Midn. McCarthy was led away, obviously upset at Capt. McManus' hostile reaction by the engine cadet already aboard, Midn. Mattews, 2/c. Midn. Mattews indicated that Capt. McManus was the reason that the previous cadet had gotten off the ship and that Midn. McCarthy should reconsider boarding the GOLDEN MONARCH.
Captain McManus continued to berate and visciously attack Kings Pointers to the other two Midshipman. He said "They aren't worth a shit, just look at the track *309 record how many of them are at sea now?" Midn. Heckl continued to listen to the attack when Capt. McManus related to the unfortunate accident of the GOLDEN DOLPHIN. Midn. Heckl indicated that he was very close to one of the victims, Steven Wickboldt. To this, Capt. McManus became angry saying that "you could not have known Steve he wouldn't have had anything to do with the likes of you." This, I found particularly offensive and unnecessary in light of the fact that I was a close friend of Steven's for five years and have had a difficult time justifying his death.
Capt. McManus was then questioned by myself as to what right he had to make a statement of this nature. He then became very loud and pushed into me saying that "You better watch yourself asshole, or you're gonna get hurt." I replied that I had conducted myself in nothing other than a gentlemanly fashion and treated Capt. McManus with due respect and that I expected to be treated in the same fashion.
Midn. Heckl and McWeeney then conferred over the situation and decided in concurement with Midn. McCarthy that she should not board the vessel.
Both Midn. Heckl and Midn. McWeeney are first-classmen and both have exceptional shipboard records. Both midshipman feel that Capt. McManus is beyond the "cranky old man." He is contemptuous, spiteful and resentful of young adults. Never have either of the two Midshipmen been confronted with such a hateful atmosphere nor someone so caustic and cold towards their fellow man as evidenced by the comment concerning Steven Wickboldt. It is the opinion of these two midshipmen that cadets should not be assigned under this captain again. The atmosphere generated would not be conducive to a learning environment and serve as a severe detrement to the sea year program.
Respectfully submitted,
/s/ Midn. Eric Heckl, 6th Co. Commander
/s/ Midn. Don McWeeney, 1/c
Midn. Eric Heckl, 6th Co. Commander
Midn. Don McWeeney, 1/c
NOTES
[1] Defendants vigorously deny that Captain Finley sent the memoranda to Apex, but for the purpose of assessing his official immunity, the court assumes that he did.
[2] Counts one and two of the complaint address the publication of the memoranda to Captain Finley. Count three asserts a claim against Captain Finley for sending the reports to Apex. All three counts are dismissed. Count four, which is styled as a civil conspiracy claim, liberally construed, alleges that McCarthy and Heckl sent the libelous memoranda to Captain Berger. It would be prudent for plaintiff to file an amended complaint explicitly stating his claim for relief in a manner consistent with this opinion. Leave to file such an amended complaint is hereby granted.
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311 F.3d 525
Richard CHALK, Petitioner-Appellant,v.Robert L. KUHLMANN, Superintendent of Sullivan Correctional Facility, Respondent-Appellee.
Docket No. 00-2165.
United States Court of Appeals, Second Circuit.
Argued: June 28, 2001.
Decided: November 22, 2002.
Marsha R. Taubenhaus, New York, NY, for Appellant.
Daniel Smirlock, Deputy Solicitor General (Nancy A. Spiegel, Assistant Solicitor General, and Marlene O. Tuczinski, Assistant Solicitor General, on the brief) for Eliot Spitzer, Attorney General of the State of New York, Albany, NY, for Appellee.
Before: MINER, LEVAL, and POOLER, Circuit Judges.
LEVAL, Circuit Judge.
1
This is an appeal from the denial of a writ of habeas corpus by the United States District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge). Richard Chalk petitioned the district court under 28 U.S.C. § 2254 to set aside his New York conviction for murder, robbery, burglary, and criminal possession of a weapon. He contends the conviction should be set aside by reason of various violations of his rights including a Bruton violation of the Confrontation Clause. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Petitioner had failed to preserve these claims in his application for leave to appeal the conviction to the New York Court of Appeals. When petitioner appealed from the denial of the writ, a panel of this Court granted a certificate of appealability ("COA"), see 28 U.S.C. § 2253(c)(2), on two questions: First, whether a criminal defendant has a constitutional right to effective assistance of counsel in an appeal to the New York Court of Appeals, and second, whether a district court should stay a petition (pending exhaustion) that raises ineffective assistance of appellate counsel as cause for procedural default of claims raised on habeas, where the ineffective assistance of counsel claim is itself unexhausted.
2
We hold that because the proceedings as to which counsel rendered assertedly ineffective assistance involved a discretionary appeal subsequent to the first appeal as of right, petitioner did not have a constitutional right to counsel, so that the question whether counsel's performance violated minimal constitutional standards is moot. We therefore reject petitioner's argument raised as cause for the procedural default of his petition, and affirm the district court's denial of his petition as forfeited.
BACKGROUND
3
The evidence adduced at the trial of Chalk and five co-defendants showed the following: On March 9, 1988, two armed men broke into the third floor apartment at 57 First Street, Albany, New York, which was occupied by two drug dealers. The intruders instructed the drug dealers to lie face down on the floor. They took cash, clothing, and jewelry and then shot both men in the back of the head, killing them. At the same time two other men broke into the second floor apartment of the same building, where they tied up and robbed two other victims. These victims managed to escape and told a neighbor to call the police. Petitioner Chalk was not one of the four who actually performed the robberies. The evidence suggests that during the robberies he was driving the get-away car.
4
Shortly thereafter, a New York State Trooper, Nestor Rodriguez, saw a car on the New York State Thruway that matched a broadcast description of the car involved in the shooting. When Rodriguez stopped the car, three of the six occupants jumped out and fled. Rodriguez chased and apprehended the driver, who proved to be Chalk, the petitioner. While in pursuit, Rodriguez saw Chalk throw something to the ground; he subsequently recovered a magazine clip with four bullets, and found more ammunition in Chalk's clothing. After obtaining a search warrant, Rodriguez found guns and ammunition in the trunk of the car. All six occupants were apprehended and advised of their Miranda rights. Five, including Chalk, gave the police incriminating statements.
5
Chalk was interviewed by Detective James Tuffey and gave incriminating admissions, but refused to sign a written statement. He said the others had spoken to him about a need for "some tools" to "take care of business Upstate," that had to "do with G's" (thousands of dollars). He admitted having bought guns and turned them over to another man to take by bus to Albany. He had then ridden with the others in the car to Albany, and drove it on leaving the Albany house. He was given $100 for gas and tolls.
The Trial
6
The trial judge denied Chalk's request for a severance from co-defendants who had confessed, and all six defendants were tried together. Detective Tuffey testified at trial as to Chalk's oral statements. The statements of the other co-defendants were admitted at trial, each in redacted form, and solely against the confessing defendant, without objection by Chalk's attorney. The court instructed the jurors as to each confession that it could be considered only as against the confessing defendant and not against other defendants. The jury found Chalk guilty on numerous counts, as stated above. He was sentenced to indeterminate consecutive terms aggregating 71 2/3 years to life.
Appeal
7
On direct appeal to the Appellate Division, Chalk's counsel argued that: (1) the trial court improperly received the redacted confessions of the co-defendants in violation of Chalk's rights under the Confrontation Clause; (2) police lacked probable cause for arrest; (3) the sentence was harsh and excessive; and (4) it was error to impose consecutive sentences. In a pro se brief, Chalk raised four additional issues, including ineffective assistance of the trial counsel.
8
The Appellate Division of the New York Supreme Court affirmed the conviction, but modified Chalk's sentences to run concurrently, reducing the overall sentence to 50 years to life. People v. Chalk, 199 A.D.2d 813, 606 N.Y.S.2d 386 (3d Dept. 1993). The court rejected Chalk's Confrontation Clause claim, as well as his other claims.
9
Chalk's attorney then applied under N.Y.Crim. Proc. Law § 460.20(3)(a) to a judge of the Appellate Division for leave to appeal to the Court of Appeals. The application specified several issues, but did not mention Chalk's claim based on the Sixth Amendment Confrontation Clause or the other claims Chalk later raised in the petition. The application was denied on March 21, 1994.
The Habeas Petition
10
On April 18, 1997, Chalk, acting on his own behalf without an attorney, filed the present petition for habeas corpus in the United States District Court. His petition argued four claims, none of which had been raised in his attorney's petition for leave to appeal to the Court of Appeals. To excuse the forfeiture, he argued that he had received ineffective assistance of appellate counsel by virtue of his attorney's failure to include the claims in the petition for leave to appeal to the Court of Appeals.
11
The district court denied the petition. The court found that Chalk's claims were procedurally defaulted and could not be raised on habeas because of petitioner's failure to include them in the petition for leave to appeal to the Court of Appeals. As for Chalk's argument that the default should be excused because it resulted from ineffective assistance of counsel, the district court rejected the claim on the ground that the leave application involved a discretionary appeal — not one to which Chalk was entitled under New York state law — and there is no constitutional right to the assistance of counsel for such discretionary appeals.
12
Chalk then applied to this Court for a certificate of appealability. As noted, a panel of this Court found that Chalk had made a "substantial showing of the denial of a constitutional right," and thus granted a COA.
DISCUSSION
13
Petitioner raises ineffective assistance of counsel as cause for his procedural default in his appeal to the New York State Court of Appeals. We agree with the district court's conclusion that the claim is without merit. Chalk's challenge to the effectiveness of his attorney's performance relates not to his first appeal as of right, but to a subsequent discretionary appeal. Under New York procedure, a person convicted of a felony in the New York State Supreme Court is entitled as of right to appeal to the Supreme Court, Appellate Division. N.Y.Crim. Proc. Law § 450.10. Chalk took that appeal, and the Appellate Division affirmed his conviction.
14
At that point, New York procedure permits the appellant to apply for leave to appeal to the New York Court of Appeals. The application may be made either to the Appellate Division, or to a judge of the Court of Appeals. Id. § 460.20(2)(a). The appellant has no right to have his appeal heard by the Court of Appeals. Whether the appeal will be heard in the Court of Appeals is a discretionary decision. Id. § 460.20(4).
15
The Supreme Court has established that there is no constitutional right to counsel for such discretionary appeals. Ross v. Moffitt, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). The Court has stated that the right to counsel extends only to a first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Moreover, the Supreme Court held in Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982), that a writ of habeas corpus cannot be premised on a claim of ineffective assistance of counsel based on counsel's failure to file a timely application for leave for a discretionary appeal. "Since [petitioner] had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel." Id. And in Coleman v. Thompson, 501 U.S. 722, 756-57, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court held that because petitioner does not have the right to counsel on a discretionary appeal, an error by counsel during such a discretionary appeal cannot be considered as cause that can excuse procedural default.
16
These Supreme Court decisions make clear that Chalk cannot excuse his default by his claim of ineffective assistance of appellate counsel. Because the proceeding involved a discretionary appeal subsequent to his first appeal as of right, Chalk had no constitutionally protected right to counsel. Thus even if his attorney's performance did not conform to minimum standards, this failure would not violate any constitutional right, and could not serve as the basis for overturning his conviction on application for habeas corpus under Section 2254.
17
Against this position, Chalk raises two arguments. First, he contends that, because New York court rules obligate the attorney handling the appeal to the Appellate Division to prepare and file the petition for leave to appeal to the Court of Appeals, see N.Y. Rules of Court § 500.10(a) ("Counsel assigned or retained at the Appellate Divisions or other intermediate appellate courts are required by rules of those courts to make the application if defendant requests."), the appellant has a guaranteed right to have this application made on his behalf. Chalk contends the leave application should therefore be considered an appeal as of right, as to which he had a constitutional right to counsel.
18
The argument fails. The fact that a state may, "as a matter of legislative choice," Ross v. Moffitt, 417 U.S. at 618, 94 S.Ct. 2437, provide a right to counsel for discretionary appeals subsequent to the first appeal as of right does not extend the Constitution's guarantee of counsel to such proceedings. See Evitts, 469 U.S. at 394, 105 S.Ct. 830.
19
Chalk argues also that because of the obligation on appellate counsel to file the leave application, that filing should be considered as the last step in his first appeal as of right — not the first step of the subsequent discretionary appeal. The argument is ingenious, but wrong. The leave application is not a part of the direct appeal to the Appellate Division. The application is not filed until the Appellate Division has finally rendered its decision. It seeks review of that decision, on a discretionary basis, by the Court of Appeals. See N.Y.Crim. Proc. Law § 460.20(2)(a). The mere fact that counsel in the prior proceeding is obligated to pursue the next level of discretionary review does not convert the application into a part of the first appeal as of right.
20
We conclude that, even if counsel's performance in failing to include Chalk's claims in his leave application fell below minimum standards of performance, this did not constitute a deprivation of the constitutional right to counsel because Chalk had no constitutional right to counsel for the filing of that application.
CONCLUSION
21
The order of the district court dismissing the petition as forfeited is affirmed.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10487 JUNE 12 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00099-CR-5-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER THAI HOANG,
a.k.a. Ti Bo,
a.k.a. Peter Hoang,
Defendant-Appellant.
________________________
No. 06-10488
Non-Argument Calendar
________________________
D. C. Docket No. 05-00101-CR-3-003-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER THAI HOANG,
a.k.a. Ti Bo,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(June 12, 2007)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Peter Thai Hoang appeals his 236-month
sentence for conspiring to distribute and to possess with the intent to distribute
methylenedioxymethamphetamine (“MDMA”) and five kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 841 and 846, and a concurrent 236-month
sentence for conspiring to launder money, in violation of 18 U.S.C. § 1956(h). On
appeal, Hoang argues the district court erred in calculating his offense level under
the Sentencing Guidelines by (1) imposing a 4-level enhancement, pursuant to
U.S.S.G. § 3B1.1(a), for Hoang’s leadership role in the drug conspiracy; and (2)
imposing a 2-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), based on a
co-conspirator’s possession of a firearm. Upon thorough review of the record and
careful consideration of the parties’ brief, we affirm.1
1
Hoang also challenges the district court’s application of § 3B1.1(c) in calculating his
offense level for the money laudering conspiracy. Under the Guidelines, counts which are closely
2
A district court’s sentencing determinations on whether a defendant
qualifies for a minor-role adjustment and whether a defendant possessed a firearm
are findings of fact that we review for clear error. United States v. De Varon, 175
F.3d 930, 934 (11th Cir.) (en banc) (minor-role adjustment), cert. denied, 528 U.S.
976 (1999); United States v. Alred, 144 F.3d 1405, 1420 (11th Cir. 1998)
(possession of a firearm). We have observed,
a trial court’s choice between two permissible views of the evidence is
the very essence of the clear error standard of review. So long as the
basis of the trial court’s decision is supported by the record and does
not involve a misapplication of a rule of law . . . it will be rare for an
appellate court to conclude that the sentencing court’s determination
is clearly erroneous.
De Varon, 175 F.3d at 945 (quotation and citation omitted).
The parties are familiar with the underlying facts of the conspiracies and we
do not recount them again here. According to the facts of the presentence
investigation report (“PSI”), which the district court adopted, and the testimony
presented at Hoang’s sentencing hearing, Hoang was arrested as part of an
related are combined into a single group. See U.S.S.G. § 3D1.2(c). Laundering money is
considered to be closely related to the offense that produced the laundered funds -- in this case, the
drug trafficking conspiracy. See U.S.S.G. § 2S1.1, comment. (n.6). The total offense level for a
group is the highest offense level of the counts in the group. U.S.S.G. § 3D1.3(a). Because Hoang’s
total offense level was determined by grouping his two counts of conviction together and both
counts had the same offense level, any alleged error relating to the scoring of the money laundering
conspiracy count would not affect the application of the Guidelines to Hoang’s case and is,
therefore, harmless error. See U.S.S.G. § 3D1.3(a); Williams v. United States, 503 U.S. 193, 202-03
(1992) (holding that an incorrect application of the Guidelines by the district court does not need
to be remanded when the error was harmless and would not affect the defendant’s sentence).
3
international drug trafficking conspiracy that was under Vietnamese leadership and
stretched across several continents. The primary purpose of the international drug
conspiracy involved laundering profits from MDMA sales. To that end, the
conspiracy consisted of local cells, or “franchises,” in various parts of the United
States, including Louisiana, Texas, Mississippi, and Florida.
John Cao, Hoang’s co-defendant, established a local cell in Pensacola,
Florida. Appellant Hoang and his brother, Paul Hoang, were the two “key leaders”
or “first level distributors” in the Pensacola-based cell, and Title III wiretaps2
documented 20 or more conversations between appellant Hoang and Cao regarding
drug distribution and laundering of the proceeds. The PSI noted that appellant
Hoang actively negotiated the price of the drugs with the suppliers and directed the
activities of other. The PSI additionally described distributions from the first-level
distributors to “second or mid-level distributors” of large amounts of MDMA
supplied by Cao and Mike Pham to the Hoangs. In addition to trafficking MDMA
and laundering the proceeds of the scheme, the Pensacola cell also trafficked
kilogram-quantities of cocaine, under the primary leadership of appellant Hoang,
and marijuana, under the primary leadership of Paul Hoang.
2
See Title III of the Omnibus Crime Control and Safe Streets Act, Pub. L. 90-351, 82
Stat. 212 (1968) (codified at 18 U.S.C. § 2510 et seq.).
4
After a jury convicted him of both conspiracy counts, appellant Hoang
proceeded to sentencing. The PSI grouped Hoang’s offenses together, pursuant to
U.S.S.G. § 3D1.2(c), and calculated the base offense level for the money
laundering offense by looking at the offense level for the offense that produced the
laundered funds, which in this case was 34, pursuant to U.S.S.G. § 2D1.1. The PSI
then recommended the following adjustments to Hoang’s offense level: (1) a two-
level increase, pursuant to U.S.S.G. § 2D1.1(b)(1), because a dangerous firearm
was possessed; (2) a two-level increase, pursuant to U.S.S.G. § 2S1.1(b)(2)(B),
because Hoang was convicted under 18 U.S.C. § 1956; (3) a four-level increase,
pursuant to U.S.S.G. § 3B1.1(a), because Hoang was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive; and (4) a three-level downward adjustment, pursuant to U.S.S.G. §
3E1.1(a) and (b), for acceptance of responsibility. With an adjusted offense level
of 39 and a criminal history category I, Hoang faced a Guidelines sentencing range
of 262-327 months’ imprisonment.
At the sentencing hearing, as to the drug trafficking conspiracy, the district
court overruled Hoang’s objection to the § 2D1.1(b)(1) enhancement, finding that
because it was reasonably foreseeable that the conspiracy would involve a gun, the
enhancement applied to Hoang based on his co-conspirator’s possession of a
5
firearm. The district court also overruled Hoang’s objection to the assessment of
the § 3B1.1(a) four-level enhancement, noting that the evidence of Hoang’s
leadership activities in the conspiracy was “overwhelming” because there was
evidence that Hoang recruited people, provided drugs on consignment, and
arranged for deliveries. After a three-point adjustment for acceptance of
responsibility, Hoang’s adjusted offense level was 37.
The district court then calculated the money laundering conspiracy as having
a base offense level of 34, and assessed three two-point increases for the use of a
firearm by others, U.S.S.G. § 2D1.1(b)(1); Hoang’s conviction for violating 18
U.S.C. § 1956, U.S.S.G. § 2S1.1(b)(2)(B); and Hoang’s role in the offense,
U.S.S.G. § 3B1.1(c). After a three-point reduction for acceptance of responsibility,
Hoang’s adjusted offense level was 37.
Since the offense level for both conspiracies was 37, the overall offense
level was 37. With a criminal history category I, Hoang’s Guidelines
imprisonment range was 210-262 months. The district court imposed a 236-month
term of imprisonment on each count, with the sentences to run concurrently. This
appeal followed.
First, Hoang argues the district court erred by imposing a four-point
enhancement under U.S.S.G. § 3B1.1(a) based on his aggravating role in the drug
6
conspiracy. Hoang claims that all of his interactions with other conspirators
involved merely buying and selling drugs and that he did not have the authority or
control required to be considered an organizer or a leader under the Sentencing
Guidelines.
“The government bears the burden of proving by a preponderance of the
evidence that the defendant had an aggravating role in the offense.” United States
v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). Section 3B1.1(a) states that, “[i]f
the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive, increase [the offense level] by 4
levels.” A participant is “a person who is criminally responsible for the
commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1,
comment. (n.1). In determining the defendant’s role in the offense, the district
court should consider
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning and organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
U.S.S.G. § 3B1.1, comment. (n.4). “Section 3B1.1 requires the exercise of some
authority in the organization, the exertion of some degree of control, influence, or
7
leadership.” United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir.), cert.
denied, 127 S. Ct. 128 (2006) (citation and quotation omitted).
While Hoang is right that the level of control, leadership, or influence
needed to justify an enhancement under § 3B1.1(a) requires more than merely a
buyer/seller relationship, see Alred, 144 F.3d at 1422, the record contains
overwhelming evidence of Hoang’s control and leadership over others, such as
Perry Williams who accepted and processed kilogram-quantities of cocaine at his
house, all at Hoang’s direction. Cf. United States v. Mesa, 247 F.3d 1165, 1169-70
(11th Cir. 2001) (distinguishing Alred based on the presence of evidence that the
defendant directed people who stored and delivered cocaine, who unloaded and
prepacked vehicles, and who translated drug transactions). Moreover, the
government presented abundant evidence concerning Hoang’s efforts to recruit
new members for all levels of the drug trafficking conspiracy, and that his efforts
involved the direction or recruitment of at least five other co-conspirators. Simply
put, a preponderance of the evidence supported the district court’s finding that
appellant Hoang exercised control and leadership over the individuals who bought
drugs from him. Accordingly, the district court’s finding that Hoang was an
organizer or leader of the criminal enterprise was not clearly erroneous. See De
Varon, 175 F.3d at 945.
8
We likewise are unpersuaded by Hoang’s challenge to the district court’s
application of the two-point enhancement under U.S.S.G. § 2D1.1(b)(1) based on
the court’s finding that it was reasonably foreseeable to Hoang that a co-
conspirator would possess a firearm in the course of the drug trafficking
conspiracy. Under § 2D1.1(b)(1), a two-point enhancement is warranted if a
dangerous weapon, including a firearm, was possessed. We have held that, in
order for the § 2D1.1(b)(1) firearm enhancement to be applied based on a
co-conspirator’s gun possession, the government must show the following by a
preponderance of the evidence: “(1) the possessor of the firearm was a
co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the
defendant was a member of the conspiracy at the time of possession, and (4) the
co-conspirator possession was reasonably foreseeable by the defendant.” United
States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999).
Here, one of the firearms attributed to Hoang was possessed by his brother
and co-conspirator, Paul Hoang. Paul Hoang’s possession of a firearm supported
application of the § 2D1.1(b)(1) enhancement to appellant Hoang’s offense level
because it was reasonably foreseeable, given the lucrative and illegal nature of the
drugs involved and the common knowledge that guns are tools of the drug trade, as
well as Hoang’s leadership position in the conspiracy, that a co-conspirator would
9
possess a firearm. See United States v. Pham, 463 F.3d 1239, 1245-46 (11th Cir.
2006). Moreover, as we observed in co-conspirator Mike Pham’s appeal, the large
amounts of drugs and money and the vastness of this particular conspiracy further
support the enhancement. Id. at 1246. The government also presented Title III
phone interceptions in which Hoang actually discussed using a firearm in
connection with settling business. On this record, the four Gallo requirements are
satisfied. Paul Hoang was a co-conspirator who possessed the firearm in
furtherance of the conspiracy at a time when appellant Hoang was a member of the
conspiracy. And the firearm use was reasonably foreseeable to appellant Hoang
because of the nature of the drug conspiracy in which Hoang was involved. See
Pham, 436 at 1246. Therefore, the district court did not clearly err in applying the
§ 2D1.1(b)(1) enhancement. See id.
AFFIRMED.
10
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720 N.W.2d 194 (2006)
RIOS v. IBP, INC.
No. 05-1368.
Court of Appeals of Iowa.
June 14, 2006.
Decision without published opinion. Reversed and Remanded.
| {
"pile_set_name": "FreeLaw"
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FILED
1 MAY 29 2013
2 SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. CC-12-1395-DKiTa
)
6 ALEN L. LY, ) Bk. No. LA 12-25257-TD
)
7 Debtor. )
______________________________)
8 )
ALEN L. Ly, )
9 )
Appellant, )
10 )
v. ) M E M O R A N D U M1
11 )
MICHELLE V. CHE, )
12 )
Appellee. )
13 ______________________________)
14 Argued and Submitted on May 15, 2013
at Pasadena, California
15
Filed - May 29, 2013
16
Appeal from the United States Bankruptcy Court
17 for the Central District of California
18 Honorable Thomas B. Donovan, Bankruptcy Judge, Presiding
19
Appearances: Edgardo M. Lopez, Esq. argued for Appellant
20 Alen L. Ly; Caroline S. Kim, Esq. argued
for Appellee Michelle V. Che.
21
22 Before: DUNN, KIRSCHER, and TAYLOR, Bankruptcy Judges.
23
24
25
26 1
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
1 The appellant, Alen L. Ly (“Ly”), appeals the decision of
2 the bankruptcy court granting relief from stay for cause to the
3 appellee, Michelle V. Che (“Che”), to pursue her California state
4 law unlawful detainer action against Ly for all purposes.
5 Subsequent to this appeal being filed, Che filed a motion with
6 this Panel for sanctions (“Sanctions Motion”) against Ly and his
7 counsel for pursuing a frivolous appeal. We AFFIRM the
8 bankruptcy court’s relief from stay order, and we GRANT the
9 Sanctions Motion and award sanctions in the amount of Che’s
10 attorney’s fees, totaling $6,650, and costs in the amount of
11 $114, for a total award of $6,764, jointly and severally against
12 Ly and his attorney.
13 I. FACTS
14 Although the parties dispute one another’s accounts of
15 prebankruptcy events, what occurred in Ly’s chapter 72 case is
16 essentially undisputed.
17 In Appellant’s Opening Brief, Ly states that he filed his
18 bankruptcy petition on May 14, 2012. The record reflects that
19 Ly’s bankruptcy petition actually was filed on April 30, 2012.3
20
21 2
Unless otherwise indicated, all chapter and section
22 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
all “Rule” references are to the Federal Rules of Bankruptcy
23 Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure
24 are referred to as “Civil Rules.”
3
25 The original excerpts of record submitted by Ly did not
include any of the exhibits filed by Che to her Declarations
26 filed in support of her motion for relief from stay. After Che
27 filed a Motion to Augment Record with this Panel and the
subsequent order of the motions panel requiring Ly to supplement
28 (continued...)
-2-
1 On June 20, 2012, Che filed a motion for relief from stay
2 (“Stay Motion”) with respect to certain residential property in
3 Long Beach, California (“Property”). In his Schedule A, Ly
4 declared that he owned the Property. In the Stay Motion, Che
5 stated that she was a “Holder of Deed of Trust.” In her Real
6 Property Declaration, however, Che stated that she was “the
7 Movant and owner of the Property.” In her further Declaration
8 (“Further Declaration”) in support of the Stay Motion, Che stated
9 that she had leased the Property to Ly’s sister, Vanessa A. Ly
10 (“Vanessa”), on or about March 1, 2006. Che further stated that
11 she did not find out that Ly was residing at the Property until
12 October 2008. Che also stated that after making one rent
13 payment, neither Vanessa nor Ly paid any further rent.
14 In the Further Declaration, Che stated that Ly “forged my
15 signature and transferred the [Property] to himself.” Che stated
16 that she sued Ly in 2009 for the alleged fraudulent transfer of
17 the Property (“State Court Lawsuit”) and obtained a judgment
18 (“Judgment”). A certified copy of the Judgment was attached as
19 Exhibit A to the Further Declaration. The Judgment, that was
20 entered on Ly’s default, included a specific description of the
21 Property and ordered that it be transferred from Ly to Che. The
22 Judgment included the following additional provisions:
23 2) The previously recorded Grant Deed, Los Angeles
County recorder number 061576358 recorded on July 18,
24 2006 is hereby declared void based upon the forged
signature of Michelle Che.
25 3) The clerk of this court is empowered and ordered to
26
3
27 (...continued)
the record, Ly filed supplemental excerpts of record, including
28 the critical exhibits for our review.
-3-
1 sign a quit claim deed and all of the related papers on
behalf of Alen Lang Ly and to Plaintiff Michelle Che.
2 4) Defendant Alen Lang Ly is hereby prohibited from
approaching less than 100 yards from said [Property].
3
4 Ly, through his counsel, Edgardo M. Lopez (“Lopez”), opposed
5 the Stay Motion (“Opposition”). In his Declaration in support of
6 the Opposition (“Opposition Declaration”), Ly stated that he
7 purchased the Property from Che in July 2006 for $525,000. He
8 further stated that he had been living on the Property as his
9 primary residence since July 2006 and had paid monthly mortgage
10 payments and annual property taxes.
11 Ly admitted in the Opposition Declaration that he had
12 received service of the summons and Che’s complaint in the State
13 Court Lawsuit. He further declared that he had retained counsel
14 to represent him in the State Court Lawsuit who assured him that
15 “he will take care of everything.” Thereafter, he stated that he
16 was “completely shocked” when he received a five-day notice to
17 vacate the Property from Che’s attorney and blamed attorney
18 neglect for the entry of the Judgment against him. In the
19 Memorandum of Points and Authorities filed in support of the
20 Opposition, Lopez argued that stay relief should be denied
21 because Che was not a real party in interest and therefore lacked
22 standing to seek stay relief, and Che was not a secured creditor
23 entitled to invoke § 362(d)(1) to argue a lack of adequate
24 protection of her interest in the Property.
25 Che filed a Reply (“Reply”) to the Opposition. In her
26 Memorandum of Points and Authorities filed in support of the
27 Reply, Che argued that she never sold the Property to Ly, and
28 Che’s standing arose from the fact that Che was the “legal owner
-4-
1 of the Property.” Among other things, Che argued that “cause” to
2 grant the Stay Motion existed to allow Che to undo Ly’s
3 “fraudulent transaction.”
4 The bankruptcy court heard argument (“Hearing”) on the Stay
5 Motion on July 12, 2012. At the outset of the Hearing, the
6 bankruptcy court stated its tentative conclusions that Che had
7 produced evidence, including the Judgment, that she owned the
8 Property and was entitled to relief to pursue her unlawful
9 detainer action in state court. Lopez essentially argued that
10 the fact that the Judgment was obtained by default cut against
11 Che’s position that she retained an ownership interest in the
12 Property. Reminding Lopez that, “A judgment is a judgment,” the
13 bankruptcy court overruled Ly’s argument and advised the parties
14 that he would grant the Stay Motion but would not waive the
15 fourteen-day stay of the effectiveness of his order under
16 Rule 4001(a)(3).
17 On July 26, 2012, the bankruptcy court entered an order
18 (“Order”) granting the Stay Motion for cause under § 362(d)(1) to
19 allow Che to “pursue her state court unlawful detainer suit
20 against [Ly] for all purposes.” In effect, the bankruptcy court
21 granted relief from stay to allow the parties to resolve their
22 competing claims to the Property in state court. Ly filed a
23 timely notice of appeal on August 7, 2012.
24 Che filed the Sanctions Motion with this Panel, requesting
25 an award of sanctions against both Ly and his counsel, Lopez, for
26 filing a frivolous, meritless appeal, on November 16, 2012. Ly
27 has not responded to the Sanctions Motion.
28 ///
-5-
1 II. JURISDICTION
2 The bankruptcy court had jurisdiction under 28 U.S.C.
3 §§ 1334 and 157(b)(2)(A) and (G). We have jurisdiction under
4 28 U.S.C. § 158.
5 III. ISSUES
6 1. Did the bankruptcy court err in determining that Che had
7 standing to pursue the Stay Motion?4
8 2. Should sanctions be awarded against Ly and Lopez under
9 Rule 8020 for filing and pursuing a frivolous appeal?
10 IV. STANDARD OF REVIEW
11 Standing is an issue that we review de novo. Loyd v. Paine
12 Webber, Inc., 208 F.3d 755, 758 (9th Cir. 2000); Kronemyer v. Am.
13 Contractors Indem. Co. (In re Kronemyer), 405 B.R. 915, 919 (9th
14 Cir. BAP 2009). De novo review requires that we consider a
15 matter anew, as if it had not been heard before, and as if no
16 decision had been rendered previously. United States v.
17 Silverman, 861 F.2d 571, 576 (9th Cir. 1988); B-Real, LLC v.
18 Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008).
19 ///
20 ///
21
22
4
In Appellant’s Statement of Issues on Appeal, Ly also
23 asserts as an issue whether the bankruptcy court erred in
granting the Stay Motion under § 362. However, in Appellant’s
24
Opening Brief, Ly only argues that Che lacked standing to seek
25 stay relief. Accordingly, any argument that the Stay Motion was
improperly granted, beyond the question of Che’s standing, is
26 waived. City of Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th
27 Cir. 2010) (Appellate courts in this circuit “will not review
issues which are not argued specifically and distinctly in a
28 party’s opening brief.”).
-6-
1 V. DISCUSSION
2 1. Che had standing to seek stay relief.
3 Ly argues one issue on appeal: whether Che had standing to
4 seek relief from the automatic stay in Ly’s bankruptcy case.
5 Whether a party has standing to pursue a claim is a
6 “threshold question in every federal case, determining the power
7 of the court to entertain the suit.” Warth v. Seldin, 422 U.S.
8 490, 498 (1975); Edwards v. Wells Fargo Bank, N.A.
9 (In re Edwards), 454 B.R. 100, 104 (9th Cir. BAP 2011).
10 “Standing” has both constitutional and prudential aspects, but Ly
11 only challenges Che’s standing as a prudential matter.5
12 Ly argues that Che has no prudential standing because she is
13 not a real party in interest. Appellant’s Opening Brief at 6-10.
14 In stay relief proceedings, the moving party bears the burden of
15 proof to establish that it has standing to prosecute the motion.
16 See In re Wilhelm, 407 B.R. 392, 399-400 (Bankr. D. Id. 2009),
17 citing Lujan v. Defenders of Wildlife, 504 U.S. at 561. Under
18 § 362(d), a “party in interest” may request relief from the
19 automatic stay. Because “party in interest” is not defined in
20 the Bankruptcy Code, whether a party moving for relief from stay
21
5
22 Constitutional standing relates to whether a party’s stake
in a matter is adequate to create a “case or controversy” to
23 which the federal judicial authority under Article III of the
Constitution may apply. Warth v. Seldin, 422 U.S. at 498-99;
24
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). In
25 her Further Declaration, Che declared that she had been paid no
rent for the Property, occupied by Ly, since March 2006 and that
26 Ly had forged her signature to engineer a fraudulent transfer of
27 the Property to himself. That evidence is adequate to establish
Che’s constitutional standing to file and prosecute the Stay
28 Motion.
-7-
1 has the status of a party in interest under § 362(d) is a fact-
2 based inquiry, determined on a case-by-case basis, considering
3 the claimed interest of the moving party and the impact of the
4 stay on that interest. In re Kronemyer, 405 B.R. at 919. A
5 party in interest can include any party that has a pecuniary
6 interest in the matter, a practical stake in its resolution or
7 whose interest is impacted by the stay. Brown v. Sobczak
8 (In re Sobczak), 369 B.R. 512, 517-18 (9th Cir. BAP 2007).
9 Motions for relief from stay are contested matters. See
10 Rules 4001(a) and 9014(a). Rule 9014(c) provides that Rule 7017
11 applies in contested matters. Rule 7017 incorporates Civil
12 Rule 17(a), which provides that “[a]n action must be prosecuted
13 in the name of the real party in interest. . . .” Considering
14 the application of these rules, as a threshold matter, relief
15 from stay proceedings are very limited in scope.
16 Given the limited grounds for obtaining . . . relief
from stay, read in conjunction with the expedited
17 schedule for a hearing on the motion, most courts hold
that motion for relief from stay hearings should not
18 involve an adjudication on the merits of claims,
defenses, or counterclaims, but simply determine
19 whether the creditor has a colorable claim to the
property of the estate.
20
21 Biggs v. Stovin (In re Luz Int’l), 219 B.R. 837, 842 (9th Cir.
22 BAP 1998) (emphasis added). See, e.g., Johnson v. Righetti
23 (In re Johnson), 756 F.2d 738, 740-41 (9th Cir. 1985).
24 Cornell University Law School’s Legal Information Institute
25 defines a “colorable claim” as:
26 A plausible legal claim. In other words, a claim
strong enough to have a reasonable chance of being
27 valid if the legal basis is generally correct and the
facts can be proven in court. The claim need not
28 actually result in a win.
-8-
1 http://topics.law.cornell.edu/wex/colorable_claim.
2 As noted above, in her Real Property Declaration filed in
3 support of the Stay Motion, Che stated that she was the “Movant
4 and owner of the Property.” Attached as Exhibit A to her Further
5 Declaration was a certified copy of the Judgment voiding Ly’s
6 deed to the Property as obtained through forgery and ordering
7 that the Property be transferred from Ly to Che. That the
8 Judgment was obtained by default does not negate its impact as
9 providing clear evidence that Che had at least a “colorable
10 claim” to ownership of the Property. In fact, there is no
11 evidence in the record before us that Ly ever moved to set aside
12 the default or appealed the Judgment. At oral argument, Lopez
13 confirmed that the Judgment had become final. A party moving for
14 stay relief has a colorable claim sufficient to establish
15 standing to prosecute the motion if it has an ownership interest
16 in the subject property. In re Edwards, 454 B.R. at 105; Veal v.
17 Am. Home Mortg. Servicing, Inc. (In re Veal), 450 B.R. 897, 913
18 (9th Cir. BAP 2011).
19 Ly lays down a red herring when he argues, “It is clear from
20 [Che’s] relief from stay motion that she is seeking to enforce
21 the right of a holder of a deed of trust on the subject property
22 . . . ; [Che] claims as a holder of the deed of trust and to have
23 an interest on the [Property] given as collateral.” Appellant’s
24 opening Brief at 8-9. The bankruptcy court did not take that
25 bait, and neither do we.
26 It is true that when the Stay Motion was filed, Che’s
27 counsel checked the box on the motion form stating that “Movant
28
-9-
1 is the (check one) Holder of Deed of Trust.”6 However, again as
2 noted above, Che’s declarations filed in support of the Stay
3 Motion asserted and provided evidence to support her claim that
4 she owned the Property. The Judgment provided admissible
5 evidence, independent of Che’s own self-serving statements, of
6 her ownership interest in the Property.
7 Based on the evidence before the bankruptcy court, focusing
8 on the Judgment, the bankruptcy court did not err in finding that
9 Che had standing to file and prosecute the Stay Motion as a real
10 party in interest. As the bankruptcy court aptly noted, “A
11 judgment is a judgment.” Ly’s appeal of the Order, based solely
12 on his argument that Che lacked prudential standing to pursue
13 stay relief, is patently meritless.
14 2. Che’s motion to sanction Ly and his counsel for pursuing a
frivolous appeal should be granted.
15
16 In the Sanctions Motion, Che requested sanctions against Ly
17 and his counsel for filing a meritless and frivolous appeal
18 pursuant to Federal Rule of Appellate Procedure (“FRAP”) 38. The
19 relevant Rule before this Panel is Rule 8020. Rule 8020, which
20 conforms to the language of FRAP 38, provides in relevant part
21 that:
22 If a . . . bankruptcy appellate panel determines that
an appeal from an order . . . of a bankruptcy judge is
23 frivolous, it may, after a separately filed
motion . . . and reasonable opportunity to respond,
24 award just damages and single or double costs to the
appellee.
25
26 6
The other two choices on the motion form that were not
27 checked were: “Assignee of Holder of Deed of Trust,” and
“Servicing Agent for Holder of Deed of Trust or Assignee of
28 Holder of Deed of Trust.”
-10-
1 As previously noted, Che filed the Sanctions Motion on
2 November 16, 2012. Ly has not filed any response to the
3 Sanctions Motion. However, in response to the Clerk’s Notice of
4 Possible Mootness of this appeal, Ly responded that the appeal
5 was not moot because the Property now was subject to a pending
6 adversary proceeding in Ly’s bankruptcy, and “the state court
7 action affecting the subject [Property] has been held in
8 abeyance.” Compliance Statement Re: Notice of Possible Mootness,
9 filed with this Panel on February 11, 2013.
10 Rule 8020 requires that all filed papers, including appeal
11 briefs, be signed, “thereby certifying that the signer has done
12 appropriate legal and factual research and believes that the
13 submission of the paper has merit.” 10 Collier on Bankruptcy
14 ¶ 8020.02 (Alan N. Resnick and Henry J. Sommer eds., 16th ed.
15 2013). The Panel may impose sanctions to penalize an appellant
16 and/or counsel who pursue a frivolous appeal and to compensate
17 the appellee for the delay and expense of defending the appeal.
18 Id. ¶ 8020.03. Cf. Burlington N. R. Co. v. Woods, 480 U.S. 1, 7
19 (1987).
20 “An appeal is frivolous if the result is obvious or the
21 arguments of error are wholly without merit.” Coghlan v.
22 Starkey, 852 F.2d 806, 811 (5th Cir. 1988). See Henry v. Farmer
23 City State Bank, 808 F.2d 1228, 1241 (7th Cir. 1986); Cannon v.
24 The Hawaii Corp. (In re The Hawaii Corp.), 796 F.2d 1139, 1144
25 (9th Cir. 1986). Unfortunately, this appeal meets that standard
26 on both counts.
27 Lopez should have known from our published opinions in
28 In re Veal and In re Edwards that Panel precedent quite clearly
-11-
1 recognizes that a party moving for relief from stay who has a
2 colorable claim to ownership of the subject property has
3 prudential standing. We assume that he read the Panel’s opinion
4 in In re Veal because he cited it to us in Appellant’s Opening
5 Brief specifically for its “exhaustive” discussion of standing
6 and real party in interest issues. See Appellant’s Opening Brief
7 at 8.
8 Particularly troubling to us is the fact that when Lopez
9 submitted Ly’s original excerpts of record, he omitted to include
10 the exhibits to Che’s Declarations filed in support of the Stay
11 Motion, including the certified copy of the Judgment, even though
12 he did include the exhibits to Ly’s Declaration filed in
13 opposition to the Stay Motion. Lopez had to be aware that the
14 Judgment was a critical part of the evidentiary record before the
15 bankruptcy court supporting its finding that Che had standing to
16 seek stay relief, because the bankruptcy court specifically
17 discussed the importance of the Judgment to its decision at the
18 Hearing in its direct responses to Lopez’s arguments. Lopez
19 supplemented the excerpts of record to include the Judgment
20 exhibit only after Che’s counsel filed her motions requesting
21 judicial notice and to supplement the record and the Sanctions
22 Motion, and the motions panel ordered Ly to supplement the record
23 with a complete copy, “including exhibits,” of the Stay Motion.
24 As we previously have determined, Ly’s appeal on the issue
25 of Che’s standing lacks merit, and that lack of merit is obvious
26 from review of the Judgment alone. We conclude that Ly’s appeal
27 is both meritless and frivolous, justifying the imposition of
28 sanctions.
-12-
1 “If we determine that an appeal is frivolous, then damages
2 and single or double costs may be awarded to the appellee.”
3 Burkhart v. Fed. Deposit Ins. Corp. (In re Burkhart), 84 B.R.
4 658, 661 (9th Cir. BAP 1988). In conjunction with the Sanctions
5 Motion, Kim filed her Declaration itemizing her attorney’s fees
6 in this appeal totaling $6,650 and costs totaling $114 “for
7 attorney service” to file Appellee’s Brief and the Sanctions
8 Motion. We find the attorney’s fees and costs requested to be
9 reasonable. In the circumstances of this appeal, we conclude
10 that the Sanctions Motion should be granted, and we award Che
11 attorney’s fees of $6,650 and costs in the amount of $114, for
12 total sanctions of $6,764, jointly and severally against Ly and
13 Lopez.
14 VI. CONCLUSION
15 Based on the foregoing analysis, findings and conclusions,
16 we AFFIRM the Order granting relief from stay to Che and GRANT
17 the Sanctions Motion, awarding sanctions for pursuing a frivolous
18 appeal totaling $6,764 jointly and severally against Ly and his
19 counsel, Lopez.
20
21
22
23
24
25
26
27
28
-13-
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543 F.2d 754
LeCroyv.Scarabin*#
No. 76-3093
United States Court of Appeals, Fifth Circuit
11/26/76
1
N.D.Fla.
AFFIRMED
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
# Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
ANTONIO LOPEZ, § No. 08-17-00039-CR
Appellant, § Appeal from the
v. § 171st District Court
THE STATE OF TEXAS, § of El Paso County, Texas
State. § (TC# 20120D04452)
§
ORDER
The Court GRANTS the Appellant’s third motion for extension of time within which to
file the brief until April 1, 2018. NO FURTHER MOTIONS FOR EXTENSION OF TIME TO
FILE THE APPELLANT’S BRIEF WILL BE CONSIDERED BY THIS COURT.
It is further ORDERED that the Hon. Robin Norris, the Appellant’s attorney, prepare the
Appellant’s brief and forward the same to this Court on or before April 1, 2018.
IT IS SO ORDERED this 22nd day of February, 2018.
PER CURIAM
Before McClure, C.J., Rodriguez and Palafox, JJ.
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285 B.R. 400 (2002)
In re Eric J. SNYDER, Debtor.
Eric J. Snyder, Debtor-Appellant,
v.
John V. LaBarge, Jr., Trustee-Appellee,
Jane Dailey Snyder, Interested Party-Appellee,
John Henderson, Jr., Creditor-Appellee.
No. 02-6036EM.
United States Bankruptcy Appellate Panel of the Eighth Circuit.
Submitted November 8, 2002.
Filed November 26, 2002.
Rehearing Denied December 23, 2002.
*401 Eric J. Snyder, St. Charles, MO, pro se.
Diana S. Daugherty, St. Louis, MO, for appellee.
Before KOGER, Chief Judge, KRESSEL, and FEDERMAN, Bankruptcy Judges.
FEDERMAN, Bankruptcy Judge.
On May 31, 2002, the bankruptcy court denied appellant Snyder's motion to vacate two orders entered by the bankruptcy court on March 1, 2002.[1] One of those orders had denied confirmation of Snyder's third amended Chapter 13 plan, dismissed the Chapter 13 case, and barred Snyder from filing another bankruptcy petition for 180 days from the date of the dismissal. The court's order of May 31, 2002, instead, set May 31, 2002, as the point at which the 180 days began to run. On June 10, 2002, Snyder filed his second motion to vacate the two orders of March 1, 2002, and appealed the bankruptcy court's sua sponte extension of the 180-day bar. On June 11, 2002, the bankruptcy court entered an order denying appellant Snyder's second motion to vacate, holding that Snyder failed to raise any new relevant facts or legal issues other then those he raised in his first motion to vacate. The Court also found that it did not err when it extended the 180-day bar in its May 31, 2002 order. We dismiss this appeal as untimely as to the merits of the bankruptcy court's orders of March 1, 2002. We find that Snyder filed a timely appeal of the portion of the May 31, 2002 order that extended the 180-day bar date first established in the March 1, 2002 order. Snyder did not, however, obtain a stay pending this appeal, the bar date has all but run, and that portion of the order is now moot.
FACTUAL BACKGROUND
We will first set out the facts relevant to our finding that the appeal of the bankruptcy court's orders of March 1, 2002, was untimely. On July 6, 1999, Snyder filed this Chapter 13 bankruptcy petition in order to stop a dissolution proceeding scheduled in the Circuit Court of St. Louis County, Missouri (the Circuit Court) on that same date. The Circuit Court continued *402 the dissolution proceeding. The bankruptcy court returned Snyder's petition filed on July 6, 1999, because he paid the filing fee with a personal check. The Circuit Court rescheduled the dissolution hearing for October 19, 1999. Snyder did not appear at the hearing, and at 3:49 p.m. on October 19, 1999, he filed a second Chapter 13 bankruptcy petition. On November 1, 1999, the bankruptcy court granted Snyder's motion that the second bankruptcy petition be backdated to July 6, 1999, the date he filed his first petition. On December 16, 1999, Jane Snyder, debtor's estranged wife, filed a motion for relief from stay to allow the dissolution to proceed. On December 23, 1999, the bankruptcy court granted Ms. Snyder's motion as to child support only, but ordered no disbursement of property of the bankruptcy estate. Between November 17, 1999, and November 20, 2001, Snyder filed five proposed Chapter 13 plans, none of which was confirmed. On August 24, 2000, the bankruptcy court held a hearing on the objections to confirmation of Snyder's third amended Chapter 13 plan. On December 21, 2000, Snyder filed a motion to set aside, or find void, the following: (1) a dissolution hearing held in the Circuit Court on October 19, 1999; (2) the bankruptcy court's order of December 23, 1999, granting relief from the automatic stay; and (3) the "PDL" hearing held in the Circuit Court on October 19, 1999. On March 1, 2002, the bankruptcy court entered two memorandum opinions and two separate orders. One order denied confirmation of debtor's third amended Chapter 13 plan, and sua sponte dismissed the case for Snyder's failure to comply with the orders of the court. The court also barred Snyder from filing another case for 180 days. The other order sua sponte vacated the order of November 1, 1999, which made the filing date retroactive to July 6, 1999, and held that Snyder filed this Chapter 13 bankruptcy petition on October 20, 1999, one day after the dissolution proceeding in the Circuit Court. The court also denied Snyder's request to vacate both the bankruptcy court's order granting relief from the automatic stay, and his request that the bankruptcy court vacate two hearings held in the Circuit Court.
On March 11, 2002, Snyder filed his first motion to vacate the bankruptcy court's orders of March 1, 2002. In addition, he filed a motion for change of venue and a motion to reinstate July 6, 1999, as the original filing date. On May 31, 2002, the bankruptcy court denied Snyder's motion to vacate and his motion for a change of venue. The bankruptcy court also ordered that Snyder be barred from filing another bankruptcy petition for 180 days beginning May 31, 2002. On June 10, 2002, Snyder filed a second motion to vacate, alter, or amend the bankruptcy court's orders of March 1, 2002. On June 11, 2002, the bankruptcy court entered an order denying the motion to vacate its Orders. On June 21, 2002, Snyder filed a notice of appeal. Snyder did not appeal the bankruptcy court's order denying his first motion to vacate, nor did he obtain a stay pending appeal of the bankruptcy court's order denying his second motion to vacate. As a result, on July 26, 2002, the Chapter 13 trustee returned to the debtor the sum of $15,550.00, representing the funds held by the trustee as of the dismissal date, and on September 10, 2002, the Chapter 13 trustee issued his Final Report and Account.
STANDARD OF REVIEW
A bankruptcy appellate panel shall not set aside findings of fact unless clearly erroneous, giving due regard to the opportunity of the bankruptcy court to *403 judge the credibility of the witnesses.[2] We review the legal conclusions of the bankruptcy court de novo.[3]
DISCUSSION
The issue on this appeal is whether Snyder preserved his right to file a timely appeal of the two orders entered by the bankruptcy court on March 1, 2002, when he filed his second motion to vacate those orders. We have previously dealt with this issue. In Barger v. Hayes County Non-Stock Co-op. (In re Barger),[4] we held that a second motion to vacate preserves for appeal the order denying the motion to vacate, but does not preserve for review the merits of the underlying order.[5] In Barger, the bankruptcy court denied confirmation of debtor's Chapter 12 plan, then denied a motion to alter or amend that order, and, finally, denied a subsequent motion to vacate the order. We held that the motion to vacate did not toll the time for appeal of the underlying order denying confirmation, therefore, the only issue on appeal was whether the bankruptcy court abused its discretion when it denied the motions to alter and amend and to vacate.[6] Likewise, in State of Missouri by Unemployment Commission v. Todd,[7] the Eighth Circuit held that the appeal from the denial of a motion to vacate is not the equivalent of an appeal from the order itself.[8] As the Eighth Circuit explained, if this were not the law, a debtor could wait until the conclusion of a bankruptcy case, and then, by moving to vacate all orders and appealing from the order denying that request, secure a review of every order. Such a result would defeat the requirement that the party seeking review of a court's order must make such a request shortly after the order is entered.[9] That is clearly the situation in this case.
The bankruptcy court filed its orders on March 1, 2002. Rule 8002 of the Federal Rules of Bankruptcy Procedure set forth the time for filing a notice of appeal. It provides that the notice of appeal must be filed within ten days of the order appealed from, or within ten days of the ruling on a motion to alter or amend:
(a) TEN-DAY PERIOD. The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from.
(b) EFFECT OF MOTION ON TIME FOR APPEAL. If any party makes a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion:
*404 (1) to amend or make additional findings of fact under Rule 7052, whether or not granting the motion would alter the judgment;
(2) to alter or amend the judgment under Rule 9023;
(3) for a new trial under Rule 9023; or
(4) for relief under Rule 9024 if the motion is filed no later than 10 days after the entry of the judgment.[10]
On March 11, 2002, Snyder filed a motion to vacate the bankruptcy court's orders of March 1, 2002. On May 31, 2002, the bankruptcy court denied that motion. Snyder then had ten days, or until June 10, 2002, in which to file a timely notice of appeal in order to preserve the underlying merits of the March 1, 2002 orders. Instead, on June 10, 2002, Snyder filed yet another motion to vacate, alter, amend, or set aside the court's orders of March 1, 2002. On June 11, 2002, the bankruptcy court denied that motion. He did not file a notice of appeal until June 22, 2002. Such a notice of appeal is untimely to preserve the underlying merits of the March 1, 2002 orders. We, therefore, dismiss the appeal as to the March 1, 2002 orders appeal for lack of jurisdiction because it is untimely.
As to the June 11, 2002 order, we review the bankruptcy court's grant or denial of a motion to vacate for abuse of discretion.[11] A court abuses its discretion only if the reviewing court finds that the court's judgment was based on clearly erroneous factual findings or erroneous legal conclusions.[12] The bankruptcy court denied Snyder's second motion to vacate, alter, amend, or set aside the court's orders on the grounds that the motion did not raise any new relevant facts or legal issues other than those raised and denied in the first motion to vacate. Rule 60(b) of the Federal Rules of Civil Procedure, as made applicable to this case by Rule 9024 of the Federal Rules of Bankruptcy Procedure controls. It provides that a party may obtain relief from a judgment or order if such party demonstrates mistake, inadvertence, excusable neglect, newly-discovered evidence, or fraud.[13] The bankruptcy court found that Snyder failed to raise any new relevant facts or legal issues in his second motion to vacate, alter, or amend the orders of March 1, 2002. We find that the bankruptcy court did not abuse its discretion in making such a finding.
Arguably, Snyder did preserve for appeal whether the bankruptcy court abused its discretion when, in its May 31, 2002 order, it barred Snyder from filing another bankruptcy petition for 180 days. In its order of March 1, 2002, the bankruptcy court had not only dismissed the Chapter 13 bankruptcy case, but, because of Snyder's failure to obey the orders of the court during the pendency of the case, barred him from filing another case for 180 days from that date. When Snyder then immediately filed a motion to vacate that order, the bankruptcy court extended the ban, so that it will now expire on *405 November 27, 2002. Snyder did not obtain a stay of the bankruptcy court's order of May 31, 2002. Thus, the 180-day ban has all but run, and, assuming Snyder did preserve this issue for appeal, it is now moot. We will, therefore not address it. It all other respects, we affirm the bankruptcy court's denial of the second motion to vacate. And, as to the March 1, 2002 orders, we dismiss the appeal as untimely.
NOTES
[1] The Honorable David P. McDonald, Chief Judge, United States Bankruptcy Court for the Eastern District of Missouri.
[2] Gourley v. Usery (In re Usery), 123 F.3d 1089, 1093 (8th Cir.1997); O'Neal v. Southwest Mo. Bank (In re Broadview Lumber Co., Inc.), 118 F.3d 1246, 1250 (8th Cir.1997) (citing First Nat'l Bank of Olathe, Kansas v. Pontow, 111 F.3d 604, 609 (8th Cir.1997)). Fed. R. Bankr.P. 8013.
[3] First Nat'l Bank of Olathe, Kansas v. Pontow (In re Pontow), 111 F.3d 604, 609 (8th Cir.1997); Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir.1997).
[4] 219 B.R. 238 (8th Cir. BAP 1998).
[5] Id. at 242-43.
[6] Id. at 240.
[7] 122 F.2d 804 (8th Cir.1941).
[8] Id. at 806.
[9] Id.; See also Irving Trust Co. of New York v. Nelson (In re Schulte-United, Inc.), 59 F.2d 553, 559 (8th Cir.1932) (holding that a motion to vacate an order, and an appeal from the denial of that motion, is not the equivalent of an appeal from the order itself, therefore, the reviewing court can only review the propriety of denying the motion to vacate).
[10] Fed. R. Bankr.P. 8002(a) and (b).
[11] Barger v. Hayes County Non-Stock Co-op. (In re Barger), 219 B.R. 238, 243 (8th Cir. BAP 1998).
[12] Id.
[13] Fed.R.Civ.P. 60(b), as made applicable by Fed. R. Bankr.P. 9024. (See also Otoe County Nat'l Bank v. W & P Trucking, Inc., 754 F.2d 881, 883 (10th Cir.1985)) (holding that in addition to mistake, inadvertence, surprise, or excusable neglect, in order to avoid frivolous litigation, the party seeking relief from a default judgment must also demonstrate a meritorious defense).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD ALEXANDER, a/k/a Fat Ronald,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:00-cr-
00242-AMD; 1:06-cv-00091-AMD)
Submitted: February 15, 2007 Decided: February 21, 2007
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Edward Marr, Baltimore, Maryland, for Appellant. Jamie M.
Bennett, Assistant United States Attorney, Lynne Ann Battaglia,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Alexander seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2000) motion. The
order is not appealable 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 any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude Alexander has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.* We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
*
To the extent Alexander wants relief under 28 U.S.C. § 2241
(2000), he failed to show § 2255 did not provide an adequate and
effective means to test the legality of his conviction and
sentence. See In re Jones, 226 F.3d 328, 332-34 (4th Cir. 2000).
- 2 -
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555 F.2d 128
2 Media L. Rep. 1921
INSTITUTE FOR SCIENTIFIC INFORMATION, INC., Appellant,v.UNITED STATES POSTAL SERVICE.
No. 76-2055.
United States Court of Appeals,Third Circuit.
Argued March 29, 1977.Decided May 5, 1977.
Irving R. Segal, Kimber E. Vought, John E. McKeever, Philadelphia, Pa., for appellant; Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel.
David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, William J. McGettigan, Asst. U. S. Atty., Philadelphia, Pa., for appellee; Arthur S. Cahn, Asst. Gen. Counsel, Rate Application Division, U. S. Postal Service, of counsel.
Before SEITZ, Chief Judge, and ALDISERT and HUNTER, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
1
On this appeal from summary judgment in favor of the United States Postal Service, the issue presented is whether issues of "Current Contents", publications by the appellant Institute for Scientific Information (ISI), constitute "periodical publications", and thus qualify for second class mailing privileges, within the meaning of former 39 U.S.C. §§ 4351 and 4354.1 After the Postal Service revoked the then-existing second class status of the "Current Contents" publications, ISI appealed to the chief administrative law judge of the Postal Service for reinstatement of the original classification. On May 22, 1975, the ALJ upheld the revocations and denials of second class status. The Postal Service's judicial officer subsequently upheld the revocations and denials, making this the final decision of the Postal Service. The court below upheld the Postal Service's determination on the basis that the ISI publications were not "periodical publications" within the standards enunciated in Houghton v. Payne, 194 U.S. 88, 24 S.Ct. 590, 48 L.Ed. 888 (1904), addressing the requirements necessary for second class mailing status. Because we determine that issues of "Current Contents" demonstrate the essential attributes of a periodical, we reverse.
I.
2
Issues of "Current Contents" are paper-bound publications published weekly in Philadelphia, Pennsylvania for subscribers. Described by their publisher as "an effective and economic solution of the treble problem of literature scanning, reading selection, and rapid dissemination of information," the publications are designed primarily to alert subscribers to recently published articles in various scientific fields. An editorial board reviews scientific and technical journals within each publication's specific field and lists in the appropriate issue the articles contained in recent journals deemed worthy of inclusion; the "listing" is accomplished by reproducing, with minor variations, the tables of contents of included journals. In addition to the lists of articles from selected journals, each issue of "Current Contents" contains an editorial article and editorial comments on recent articles appearing in popular journals.
3
A second class mailing permit for "Current Contents Life Sciences" was issued on January 19, 1961. Subsequently, four other publications ("Current Contents Behavioral, Social & Educational Sciences"; "Current Contents Physical & Chemical Sciences"; "Current Contents Engineering & Technology"; and "Current Contents Agriculture, Food & Veterinary Sciences") were issued second class mailing privileges by the Post Office Department. On May 14, 1971, the Post Office Department proposed to revoke the second class status of "Current Contents Behavioral, Social & Educational Sciences," and on June 17, 1971, the Department proposed revocation for the remaining four publications. Applications for second class permits for two other publications ("Current Contents Clinical Practice" and "Current Contents Life Sciences") were denied by the Postal Service on April 12, 1973, and July 6, 1973, respectively.
II.
4
Throughout the proceedings, both sides have agreed that other than the basic issue of whether "Current Contents" are "periodical publications," each publication meets all other requirements for second class mailing privileges.2 The Postal Service argues, and the district court agreed, that any analysis of whether the publications are "periodical publications" is controlled by a passage from Houghton v. Payne, supra :
5
A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects.
6
194 U.S. at 97, 24 S.Ct. at 592. This approach to judicial decision-making raises a fundamental inquiry into the anatomy of a precedent.
A.
7
In ascribing controlling authority to the single Houghton passage, the Postal Service tries its hand at a classic legal reasoning form.3 It begins with a major premise that all periodical publications require "a variety of original articles by different authors"; it supplements this with a minor premise that "Current Contents" have neither original articles nor different authors; and it concludes that "Current Contents" are not periodical publications. But notwithstanding logical form, there can be no truth to a conclusion drawn from an incorrect premise. If the major premise is invalid if it is not a bona fide rule of law the syllogistic house collapses. Thus, we must critically examine whether the statement lifted from Houghton is the rule of that case, or merely an expression extracted from the Court's ratio decidendi.
B.
8
Upon close analysis, we cannot conclude that the Houghton statement qualifies as a rule of law in the classic Poundian sense: a legal precept "attaching a definite legal consequence to a definite, detailed state of facts."4 For in Houghton, the issue facing the court was whether a given publication was a book or a periodical. The rule of the case is that periodical publications, as defined in the Post Office bill of March 3, 1879, do not include books which are complete in themselves and which have no connection with each other, despite the fact that they are bound in paper, issued at stated intervals more than four times a year, numbered consecutively, and bear dates of issue. And beyond the distinguishable factual complex, we reach yet another, crucial level of analysis: In construing the statutory expression "periodical publication," the Houghton Court interpreted it to mean "that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term." 194 U.S. at 96, 24 S.Ct. at 592. This approach comports with the Court's well-established guideline: "Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them." Caminetti v. United States, 242 U.S. 470, 485-86, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). Mindful of the Court's teachings, we believe that the chief administrative law judge, the judicial officer and the district court all placed too much emphasis on a truncated excerpt from the Houghton Court's construction of the statute. A more complete understanding of the "ordinary" meaning of the term "periodical" is derived from a thorough reading of the Houghton Court's discussion:
9
A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects.
10
A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding, (although this is by no means essential,) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character.
11
194 U.S. at 97-98, 24 S.Ct. at 592.
12
The conclusion which emerges from a thorough reading is that although the court made reference to a periodical's ordinarily containing "a variety of original articles by different authors," this characteristic was just one factor considered by the court, not an absolute litmus test as urged by the Postal Service. Thus, while identifying the characteristic as one indicative of a periodical, the Court could also state that books "frequently contain articles by different authors."
13
More significant, in our view, were those elements which may properly be described as "essential attributes of a periodical." In addition to discussing characteristics found to be true of both books and periodicals, Houghton emphasized that two phenomena inhere in periodicals alone: (1) each issue is usually incomplete in itself, and (2) the issues demonstrate a continuity of literary character, "a connection between the different numbers of the (same) series." If a definitive test is to emerge from the Houghton analysis, therefore, we think that the Postal Service must not be concerned with the originality of a periodical's literary content or a body count of its authors so much as with a nexus of the contents to periodicity, i. e., a recognized relationship between the various numbers and the continuity or connection between them.
14
We note that this approach goes beyond any notion of "inherent periodicity" which suggests, through a process of exceedingly circular reasoning, that any publication issued at periodic intervals must be a "periodical publication." Houghton foreclosed such a contention;5 the factor may be considered in ascertaining a publication's "essential attributes" but, as with the factors relating to the number of articles and authors, its importance pales in light of the broader analysis defined above.
C.
15
We specifically reject the chief administrative law judge's reliance on what he interpreted to be a definition which has been "consistently followed by the Courts and by the Postal authorities through the years." In Re Institute for Scientific Information, Inc., P.S. Docket Nos. 2/60-64, 70, 82 & 114 (May 22, 1975), at 22. No court decisions other than Houghton were cited for this assertion. Indeed, the only other court decision cited in the ALJ's opinion was Payne v. United States, 20 App.D.C. 581 (1902), appeal dismissed 192 U.S. 602, 24 S.Ct. 849, 48 L.Ed. 583 (1904), in which the court treated railroad timetables as periodical publications entitled to second class mailing status. The ALJ treated the railway guide exception, as well as a similar exception fashioned for bus guides in National Publishing Co., Inc., P.O.D. Docket No. 3/5 (1969), as acceptable "for reasons of public policy." ALJ Opinion, supra, at 25. As for the Postal Service's "consistent" application of the definition advanced, we note that issues of "Current Contents" were granted second class mailing status for years prior to the revocations. Houghton itself provides the best response to any argument regarding past practice:
16
Contemporaneous construction is a rule of interpretation, but it is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute.
17
194 U.S. at 99-100, 24 S.Ct. at 593.
III.
18
Actions of the Postal Service are ordinarily subject to reversal only when they fall outside the scope of the administrator's authority, when they are arbitrary or capricious, or when they are unconstitutional. See American Bible Society v. Blount, 446 F.2d 588, 596-98 (3d Cir. 1971). In the posture of this case, both parties agree that the narrative or historical facts are undisputed and that the ultimate determination of mailing status depends solely upon interpretation of the relevant statutory provisions. While we recognize the deference ordinarily due to the administrator's decisions, that deference is not of the same character where the question is purely one of law and does not implicate the administrator's expertise. This is particularly true where, as here, the administrator's legal decision is based on his interpretation of a judicial opinion that in turn construes a statute. In light of our reading of the proper requirements, we conclude that the district court, the judicial officer, and the ALJ were mistaken in accepting the wooden and unrealistic test that a publication is required to include a variety of original articles by different authors in order to qualify under the statutory definition of a periodical publication. Measured against the "essential attributes of a periodical test", "Current Contents" qualifies for second class mailing status because of the demonstrated nexus between its periodicity and its contents, i. e., the relationship between its weekly publication and its subscribers receiving the information it contains in a timely and continuous fashion. Under these circumstances, the Postal Service's actions in revoking and denying second class mailing status for "Current Contents" constituted unlawful restrictions of the congressionally prescribed qualifications for second class mailing status.
19
We will reverse the grant of summary judgment in favor of the Postal Service and remand with a direction for entering summary judgment in favor of ISI.
20
SEITZ, Chief Judge, dissenting.
21
This case raises issues of substantial economic moment both to the Postal Service and to publishers. Its disposition turns on the correct interpretation of the Supreme Court's opinion in Houghton v. Payne, 194 U.S. 88, 24 S.Ct. 590, 48 L.Ed. 888 (1904). In Houghton, the Court was confronted with the problem of whether a series of books, each containing a single work of literature, constituted a "periodical publication" for purposes of the statute governing second class mailing privileges. In considering this question, the Court set forth its reading of the phrase "periodical publications" as follows:
22
". . . the publication must be a 'periodical publication,' which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term. . . . A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of (sic) some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior to subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them . . . ." 194 U.S. at 96-7, 24 S.Ct. at 592.
23
The quoted portion of the opinion states that the statutory language must be interpreted on the basis of ordinary usage, and that in ordinary usage each number of a "periodical publication" contains "a variety of original articles by different authors." The opinion thus states the "variety of original articles" criterion without ambiguity,1 though as to the requirements that each number be "incomplete in itself" and that there be "a connection between the different numbers of the series in the nature of the articles appearing in them," the opinion is less definite. The Court based its ultimate decision that the series of books was not a "periodical publication" on these latter criteria of incompleteness and continuity. But I believe we should respect the Court's unambiguous statement that "a variety of original articles" is required, since the Court was endeavoring to set forth the statutory framework within which the question before it arose.
24
Thus, under Houghton we must address the question of whether the Current Contents publications contain "a variety of original articles." I do not understand appellant to contend that they do. Moreover, any such contention would be unsupportable. For the most part, the publications merely present the tables of contents of technical journals. The brief editorials in each issue of "Current Contents" and the short digest of articles in the popular press are insufficient, in my view, to change the nature of the entire publication.
25
The majority's interpretation of Houghton stresses that certain characteristics are found only in periodicals, and that it is these characteristics which must be the "definitive test" of what is a "periodical publication." This interpretation embodies a logical fallacy. To say that some characteristics of a periodical are not shared with such publications as books is not to say that all characteristics of periodicals are not shared with some other publications. But to determine whether a particular publication is a periodical, one must look to all the characteristics which periodicals have, and not just to those which are unique to periodicals.
26
I would affirm the grant of summary judgment in favor of the Postal Service and the denial of ISI's cross-motion.
1
In June 1976, the Governors of the Postal Service adopted a new mail classification scheme, pursuant to 39 U.S.C. §§ 3623(a), 3625. The previous classification system regarding second class mail, 39 U.S.C. § 4351 et seq., was retained
2
Former 39 U.S.C. § 4354 provides, in relevant part:
Conditions for entry of publications
(a) Generally a mailable periodical publication is entitled to be entered and mailed as second class mail if it
(1) is regularly issued at stated intervals as frequently as four times a year and bears a date of issue and is numbered consecutively;
(2) is issued from a known office of publication;
(3) is formed of printed sheets;
(4) is originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry; and
(5) has a legitimate list of subscribers.
3
See Levi, An Introduction to Legal Reasoning, 15 U.Chi.L.Rev. 501, 501-02 (1948):
The basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case. It is a three-step process described by the doctrine of precedent in which a proposition descriptive of the first case is made into a rule of law and then applied to a next similar situation. The steps are these: similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case.
4
Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 Tul.L.Rev. 475, 482 (1933)
5
It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. . . . While (this fact) may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their other characteristics are those of books rather than those of magazines
194 U.S. at 98, 24 S.Ct. at 592.
1
The Court did mention Payne v. Railway Pub. Co., 20 App.D.C. 581 (1902), appeal dismissed 192 U.S. 602, 24 S.Ct. 849, 48 L.Ed. 583 (1904), where the court treated railroad timetables as "periodical publications." The Court's reference to this case, however, does not indicate that it approved the result: "(a) few other non-descript publications, such as railway guides, appearing at stated intervals, have been treated as periodicals and entitled to the privileges of second class mail matter. Payne v. Railway Pub. Co., 20 App.D.C. 581."
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773 N.E.2d 867 (2002)
Johnny L. PARKER, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 20A04-0202-CR-102.
Court of Appeals of Indiana.
August 23, 2002.
*868 Nancy A. McCaslin, Elkhart, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
NAJAM, Judge.
STATEMENT OF THE CASE
Johnny L. Parker appeals his conviction for Dealing in Cocaine within 1,000 Feet of School Property, a Class A felony, following a jury trial. He presents the following issues for our review:
1. Whether the trial court violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Indiana Constitution when it ruled that the State did not have to reveal the identity of a confidential informant.
2. Whether his sentence is manifestly unreasonable.
We affirm.
FACTS AND PROCEDURAL HISTORY
On March 24, 1998, a man approached Detective Tim Fetterer, an undercover officer with the Elkhart Police Department, and asked him whether he wanted to buy crack cocaine and whether he had marijuana to sell. Detective Fetterer responded that he could probably acquire some marijuana to sell him at a later time. The man wrote down a pager number and wrote the letter "J" on a piece of paper and gave it to Detective Fetterer with instructions to call him when he had the marijuana or when he needed "anything."
Detective Fetterer paged "J" later that evening, and "J" telephoned him in response. During that conversation, Detective Fetterer arranged to meet "J" the following day, March 25, 1998. Detective Fetterer told "J" that he had not found any marijuana yet, but that he was interested in buying a sixteenth of an ounce of crack cocaine from "J." On March 25, 1998, during the afternoon, Detective Fetterer drove to a designated location in Elkhart and paged "J," who returned the page on Detective Fetterer's cellular phone. "J" told Detective Fetterer that he would meet him at the designated location in three or four minutes.
When "J" pulled up to Detective Fetterer's car, Detective Fetterer exited his car and got into "J's" car. The two drove a short distance before "J" stopped his car.[1] "J" then reached down to the seat between his legs and pulled out two plastic baggies containing what was later determined to be crack cocaine. "J" gave Detective Fetterer one of the bags, and Detective Fetterer told "J" that the amount did not appear to be a sixteenth of an ounce, as he had requested, so "J" put an extra piece of the "rock" into the bag. Detective Fetterer then gave "J" $80 for the crack cocaine, and Detective Fetterer exited "J's" car. During this entire transaction, Detective Fetterer was wearing a body wire, and *869 another officer videotaped the events from a nearby location.
A short time later, Detective Fetterer contacted a confidential informant ("CI") in an attempt to find out what "J's" real name was. After Detective Fetterer had given only a few descriptive details, the CI told him that "J" was Parker. The CI confirmed that response when he spotted Parker driving the same car and wearing the same clothing that Detective Fetterer had observed only a half hour earlier.
The State charged Parker with dealing in cocaine within 1,000 feet of a school. A jury found him guilty as charged, and the trial court entered judgment of conviction accordingly. The trial court sentenced Parker to thirty-eight years.
DISCUSSION AND DECISION
Issue One: Confidential Informant
Parker contends that the trial court violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Indiana Constitution when it ruled that the State did not have to reveal the identity of a confidential informant. The right to confront witnesses granted by our Federal and State Constitutions includes the right of full, adequate and effective cross-examination, which is fundamental and essential to a fair trial. Geiger v. State, 721 N.E.2d 891, 898 (Ind.Ct.App.1999). A trial court is allowed to control the conduct of cross-examination, and only a clear abuse of discretion will permit a reversal. Id. An abuse of discretion is shown when the restriction relates to a matter which substantially affects the defendant's rights. Id. A defendant objecting to restriction placed on the scope of cross-examination must demonstrate how he was prejudiced by the trial court's action. Id.
As a general policy, disclosure of a confidential informant or operative's name is prevented unless the defendant can show that disclosure is relevant and helpful to the defense or is necessary to a fair trial. Id. Here, after Detective Fetterer completed his transaction with "J" on March 25, 1998, he telephoned a CI in an effort to determine "J's" real name. At trial, during direct examination, the prosecutor and Detective Fetterer engaged in the following colloquy regarding the CI's role:
PROSECUTOR: Now you say on the 24th that when you first spoke with the defendant you didn't have a name for the face. Is that my understanding?
DETECTIVE FETTERER: That is correct.
PROSECUTOR: You ultimately put a name with the face.
DETECTIVE FETTERER: Yes. I recognized him as someone I had seen before but I did not knowI did not know his name. I know it wasn't "J." I didn't know his real name.
PROSECUTOR: How did you put the name with the face?
DETECTIVE FETTERER: I contacted a CI that knows that area pretty well and knows all the people in it.
PROSECUTOR: What's a CI?
DETECTIVE FETTERER: A CI is a confidential informant.
PROSECUTOR: And what was the nature of the contact?
DETECTIVE FETTERER: I explained to him uh, I say there's this guy in this gold Ford Taurus. I said I recognize him but I can't think of his name. I told him where he was hanging out at and just based on the phone conversation he says I know who that is. He says that's Johnny Parker.
*870 PROSECUTOR: Did you then confirm that?
DETECTIVE FETTERER: Yes, I told him toI told the CI to find out a little bit more about him. He then drovehe says well I know where he lives. He said he lives down near 1410 Delaware soI said check it out and call me back. [The] CI called me back in 20 minutes and told me that he drove down to 1410 Delaware and actually saw Johnny Parker standing next to the gold Ford Taurus and I asked the CI what he was wearing and the CI gave me the exact description, the clothing description that he was wearing just a half an hour earlier when he sold me the cocaine and he gave me the plate number of the vehicle also and I had written down the plate number the night before and it was 49W3347 so I knew we were talking about the same car and the same person.
PROSECUTOR: Have you had similar conversations with that confidential informant in the past?
DETECTIVE FETTERER: Yes.
PROSECUTOR: You find the information... did you find the information that he provided to you to be reliable?
DETECTIVE FETTERER: Yes, very.
Transcript at 42-44.
During cross-examination, Parker questioned Detective Fetterer regarding the CI's identity. Before Detective Fetterer answered, and after a side bar, the prosecutor engaged in the following colloquy with Detective Fetterer:
PROSECUTOR: Officer, you're familiar with the confidential informant in question?
DETECTIVE FETTERER: Yes I am.
PROSECUTOR: He's worked for quite some time?
DETECTIVE FETTERER: Yes, I worked with him, actually for about five (5) years now, worked with him.
PROSECUTOR: Still active?
DETECTIVE FETTERER: Yes I still talk to him on a regular basis.
PROSECUTOR: Disclosing his name, you believe that would impose some sort of danger of retribution?
DETECTIVE FETTERER: Very much so.
PROSECUTOR: Therefore are you more comfortable using his number that you know him by?
DETECTIVE FETTERER: Yes I am.
Transcript at 78. The prosecutor then moved to exclude the CI's name from evidence, and the trial court granted that motion over Parker's objection.
Parker continued his cross-examination of Detective Fetterer and questioned him about the CI's criminal history, which Detective Fetterer admitted included an arrest for selling drugs, and Parker asked him whether the CI used illegal drugs, to which Detective Fetterer responded "no." In addition, Parker asked Detective Fetterer whether the Elkhart Drug Task Force paid the CI for his assistance. Detective Fetterer responded that the CI did not get paid for identifying people, but that he did get paid for doing controlled drug buys. Parker extensively cross-examined Detective Fetterer regarding the CI's credibility, and the prosecutor never objected to any of the questions other than the one regarding his identity.
In support of his contention that the trial court erred when it excluded the CI's identity from evidence, Parker relies on our supreme court's opinion in Glover v. State, 253 Ind. 121, 251 N.E.2d 814 (1969). In Glover, a police officer initiated a traffic stop, and the two men in the vehicle fled the scene before the officer could interview *871 them, although the officer caught a glimpse of one of the men. In the abandoned vehicle, the officer found several items that had been reported stolen from a nearby residence. Two confidential informants subsequently contacted the officer and gave him the name of the defendant as one of the men who committed the burglary in question. The police officer testifying on redirect examination stated that he had "reliable testimony or credible testimony from an informant that the [defendant] was guilty, and he used that to help identify the [defendant] from a picture." Id. at 817. The trial court ruled that the State did not have to reveal the informant's identity. Our supreme court reversed the trial court and held that where the State "opens the door" regarding the issue of a CI's involvement in a case, the State cannot then seek to "close the door" after showing that the CI who "put the finger of identity" upon the defendant was "reliable." Id. at 818.
Here, the State raised the issue of the CI's involvement with Parker's case during Detective Fetterer's direct examination and established that the CI was "reliable." But, unlike Glover, where the facts indicate that the police would not have been able to apprehend the defendant without the information from the CI, in this case, the CI's information was only marginally helpful to Detective Fetterer in his investigation of Parker. This distinction comports with that made by our supreme court in Dorton v. State, 419 N.E.2d 1289, 1293 (Ind.1981), where the court noted that the CI in Glover established both the guilt and the identity of the defendant. This court has also distinguished Glover, noting that the CI in Glover supplied the "essential link" in identifying a defendant as the guilty party. See Rihl v. State, 413 N.E.2d 1046, 1052 (Ind.Ct.App.1980).
Our supreme court has held that a defendant did not show a need to divulge a CI's identity where, as here, "the informant's information alone did not constitute sufficient probable cause" to arrest the defendant and police gleaned sufficient facts to support probable cause on their own. Williams v. State, 529 N.E.2d 323, 324 (Ind.1988). Before Detective Fetterer contacted the CI, he had completed a controlled drug buy with Parker, which had been both audiotaped and videotaped, and he had sufficient probable cause to arrest Parker without the information gleaned from the CI's limited involvement. See id. And Detective Fetterer could have paged "J" again, arrested him during another arranged meeting, and then determined his name without any information from the CI. The CI's role was collateral and, as such, he was not a witness against Parker. Parker delivered the cocaine to Detective Fetterer before he was identified. The CI did not identify Parker as the guilty party or otherwise participate in the transaction.
In addition, Detective Fetterer testified that revealing the CI's identity would put the CI in danger of retribution. And Parker was able to thoroughly cross-examine Detective Fetterer regarding facts directly bearing on the CI's credibility.[2] For all these reasons, Parker cannot show that the CI's identity was essential to a fair determination of his cause such that a balancing of Parker's interests with the respective interests of the State mandated disclosure. See Randall v. State, 474 N.E.2d 76, 81 (Ind.1985); see also Williams, 529 N.E.2d at 324. We hold that the trial court did not err when it ruled that the State did not have to reveal the CI's identity.
Issue Two: Sentencing
Parker also contends that his sentence is manifestly unreasonable. The *872 determination of the appropriate sentence rests within the discretion of the trial court, and we will not reverse the trial court's determination absent a showing of manifest abuse of that discretion. Bacher v. State, 722 N.E.2d 799, 801 (Ind.2000). The trial court's wide discretion extends to determining whether to increase the presumptive sentence, to impose consecutive sentences on multiple convictions, or both. Singer v. State, 674 N.E.2d 11, 13 (Ind.Ct. App.1996). If the sentence imposed is authorized by statute, we will not revise or set aside the sentence unless it is manifestly unreasonable in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B); McCann v. State, 749 N.E.2d 1116, 1121 (Ind.2001).
The presumptive sentence for a Class A felony is thirty years, and the trial court is permitted to add up to twenty years for aggravating circumstances. See Ind.Code § 35-50-2-4. Here, the trial court identified a single aggravating factor, namely, Parker's criminal history, and no mitigating factors, and the court sentenced Parker to an enhanced term of thirty-eight years. Parker's criminal history consists of two felony convictions for criminal recklessness, a felony conviction for marijuana possession, and two misdemeanor convictions, one for battery and the other for marijuana possession. Parker's sole contention on appeal is that the trial court should not have given his criminal history any weight as an aggravator because none of his prior convictions were "relate[d] to the current offense."
It is well settled that a single aggravator is sufficient to support an enhanced sentence. Deane v. State, 759 N.E.2d 201, 205 (Ind.2001). And a history of criminal activity is sufficient in and of itself to impose an enhanced sentence. Pruitt v. State, 622 N.E.2d 469, 474 (Ind. 1993). Nonetheless, Parker relies on our supreme court's opinion in Vasquez v. State, 762 N.E.2d 92, 97 (Ind.2001), to support his contention that his criminal history is insufficiently related to the charged offense to warrant an enhanced sentence. In Vasquez, the defendant, who was convicted of murder, maintained that her criminal history, which consisted of two criminal conversion convictions and a conviction for criminal trespass, all misdemeanors, were "not so significant that they justif[ied] an additional 10 years as an aggravating circumstance." Id. Vasquez relied heavily on our supreme court's opinion in Wooley v. State, 716 N.E.2d 919, 929 n. 4 (Ind.1999), wherein the court noted, in dicta, that the "significance [of prior convictions] varies based on the gravity, nature and number of prior offenses as they relate to the current offense." Vasquez, 762 N.E.2d at 97. But our supreme court rejected Vasquez's reliance on Wooley and concluded that the trial court had properly determined that "the `escalation of violence,' from disregard for property rights to disregard for life" warranted the enhanced sentence. Id.
Here, while none of Parker's previous convictions involved the possession or sale of cocaine, the trial court properly considered the number of prior offenses and the fact that two of them involved illegal drug possession. See id. (noting "[i]t is not unreasonable for a trial court to take into account the frequency of defendant's criminal activity.") We cannot say that Parker's sentence is manifestly unreasonable. The trial court did not abuse its discretion when it imposed an enhanced thirty-eight-year sentence.
Affirmed.
BAILEY, J., and ROBB, J., concur.
NOTES
[1] This encounter occurred within 1,000 feet of a public school in Elkhart.
[2] We note that the CI's credibility is not an issue, since the information he provided was not used to establish probable cause to arrest Parker.
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417 F.3d 1029
Vashon Tyrone JACKSON, Petitioner-Appellant,v.CA DEPT. OF MENTAL HEALTH; John Demorales, Executive Director; California Attorney General, Respondents-Appellees.
No. 03-17068.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 13, 2004.
Filed February 28, 2005.
Amended June 8, 2005.
1
David M. Porter, Assistant Federal Defender, Sacramento, CA, for the petitioner-appellant.
2
Craig S. Meyers, Deputy Attorney General, Sacramento, CA, for the respondents-appellees.
3
Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. CV-00-00274-LKK/PAN.
4
Before: PREGERSON and KOZINSKI, Circuit Judges, and RHOADES, SR.,* District Judge.
ORDER
5
The motion for an extension of time in which to file a petition for rehearing is GRANTED. The petition for rehearing and for rehearing en banc, received March 29, 2005, is ordered filed.
6
The opinion filed February 28, 2005, slip op. at 2251 [399 F.3d 1069], is amended as follows:
7
Slip op. at 2261 [399 F.3d at 1074], Lines 6-8:
8
Delete "the state did not petition to commit him for a second two-year term;"
9
Slip op. at 2261 [399 F.3d at 1074], Line 14:
10
Replace "have asked" with "have been successful in asking"
11
Slip op. at 2264 [399 F.3d at 1075], Lines 4-9:
12
Replace "Because Jackson did not demonstrate that he had standing to challenge the state court's jurisdiction to order his confinement, the district court lacked jurisdiction to consider his habeas petition. The judgment of the district court is vacated, and the case is remanded with instructions that the petition be dismissed."
13
with
14
"Because Jackson did not demonstrate that he had standing to challenge the state court's jurisdiction to order his confinement, the district court lacked jurisdiction to consider his habeas petition. However, Jackson's failure to allege facts to support his standing may well have resulted from the fact that respondents did not contest standing in the district court. In view of Jackson's claims on appeal regarding the circumstances of his voluntary confinement, see note 6 supra, and without deciding whether such claims are sufficient to support standing, we remand for the district court to determine, after permitting the parties to address the issue, whether Jackson has standing to bring this challenge. See United Union of Roofers No. 40 v. Ins. Corp. of Am., 919 F.2d 1398, 1402-03 (9th Cir.1990); City of Kenosha v. Bruno, 412 U.S. 507, 514, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973)."
15
The petition for rehearing is otherwise DENIED. See Fed. R.App. P. 40. The petition for rehearing en banc is DENIED. See Fed. R.App. P. 35. No further petitions for rehearing or rehearing en banc will be accepted. The mandate shall issue forthwith.
Notes:
*
The Honorable John S. Rhoades, Sr., Senior United States District Judge for the Southern District of California, sitting by designation
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1054
CA 15-00312
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, AND DEJOSEPH, JJ.
IN THE MATTER OF FRANK TALLARINO, INDIVIDUALLY
AND AS MINORITY LEADER OF ONEIDA COUNTY BOARD
OF LEGISLATORS, PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
ONEIDA COUNTY BOARD OF LEGISLATORS AND COUNTY
OF ONEIDA, RESPONDENTS-RESPONDENTS.
GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PETITIONER-APPELLANT.
CALLI, CALLI & CULLY, UTICA (HERBERT J. CULLY OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.
Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Oneida County (Bernadette T. Clark, J.), entered
September 18, 2014 in a CPLR article 78 proceeding. The judgment
dismissed the petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul Rule No. 26 of respondent Oneida County Board of
Legislators (Board), which was adopted by the Board at the outset of
its 2014-2015 biennial session. Prior to 2012, Rule No. 26 provided
that all committees of the Board “shall consist of a number of members
of each political party, proportionate to the percentage of such
members on the Board.” At the outset of the 2012-2013 session,
however, the Board adopted a version of the rules that did not include
within Rule No. 26 the proportionate representation requirement for
committees. Petitioner, the minority leader of the Board, was the
only legislator to vote against the proposed rules in 2012. Two years
later, at a reorganizational meeting held on January 3, 2014, the
Board voted unanimously to adopt rules that were the same as those
adopted in 2012, including Rule No. 26.
Although petitioner voted in favor of the rules in 2014, he
nevertheless contends in this proceeding that Rule No. 26 was adopted
in violation of Rule No. 60, which provides: “After the approval of
the Rules of the Board during the reorganizational meeting, these
rules shall not be altered or amended except by resolution adopted by
the Board, and only after every proposed alteration or amendment shall
have been approved by the Ways [and] Means Committee of the Board.”
-2- 1054
CA 15-00312
According to petitioner, Rule No. 26 should be annulled because it was
not approved by the Ways and Means Committee. As a threshold matter,
we note that it is well settled that a challenge to a legislative
body’s compliance with its own internal rules constitutes a
nonjusticiable political question (see Heimbach v State of New York,
59 NY2d 891, 892-893, appeal dismissed 464 US 956; Matter of Montano v
County Legislature of County of Suffolk, 70 AD3d 203, 210-214; Matter
of Fornario v Clerk to Rockland County Legislature, 307 AD2d 927, 928-
929). In any event, as Supreme Court properly concluded, Rule No. 60
was not implicated because the Board did not alter or amend Rule No.
26 after it was adopted at the reorganizational meeting on January 3,
2014. Rule No. 60 applies only to amendments to rules that are made
after the rules are initially adopted at the biennial reorganizational
meeting, and no such amendments were made to Rule No. 26.
Finally, we conclude that petitioner’s constitutional challenge
to Rule No. 26, for which he cites no authority, similarly lacks
merit, inasmuch as there is no constitutional requirement that the
political makeup of legislative committees be proportionate to the
political makeup of the legislature body as a whole (see Davids v
Akers, 549 F2d 120, 123-125).
Entered: October 9, 2015 Frances E. Cafarell
Clerk of the Court
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720 F.Supp. 826 (1989)
PEOPLE OF the STATE OF CALIFORNIA, Plaintiff,
v.
TRANS WORLD AIRLINES, INC., a Delaware corporation, and Does 1-10, inclusive, Defendants.
Civ. No. 89-0538-G(CM).
United States District Court, S.D. California.
September 13, 1989.
*827 M. Howard Wayne, Deputy Atty. Gen., San Diego, Cal., for plaintiff.
Bless Young, Fulbright, Jaworski & Reavis McGrath, Los Angeles, Cal., Ronald D. Secrest, Fulbright & Jaworski, Houston, Tex., for defendants.
MEMORANDUM DECISION AND ORDER
GILLIAM, District Judge.
Plaintiff's motion to remand came on for hearing on September 5, 1989, before the Honorable Earl B. Gilliam. Plaintiff was represented by M. Howard Wayne. Defendant was represented by Bless Stritar Young and Ronald D. Secrest. At the conclusion of the hearing, the court ruled that the motion to remand was granted, but reserved its ruling on whether the remand should be stayed and informed the parties it would issue a written opinion. Having considered the points and authorities and oral argument of counsel, the court issues this memorandum decision granting the motion to remand effective immediately with no stay of this ruling.
FACTS
This is a consumer protection case brought by the People of the State of California against Trans World Airlines (TWA), a Delaware corporation. Plaintiff alleges that in the course of advertising and selling passenger travel in the State of California, through the California media, defendant violated various sections of the California Business and Professions Code (CBPC).
In February 1989, defendant placed display ads in California newspapers advertising in large print a fare of "$219 London." (See Exhibit 1 attached to plaintiff's complaint.) In much smaller print, the ad noted "each way based on roundtrip purchase." At a lower portion of the ad, under the heading "Fare Conditions," the ad read "Fare does not include $23 U.S. departure tax, security surcharges, federal inspection fees and other gov't taxes." Therefore, the actual total roundtrip price was $461. Plaintiff alleges that these portions of the ad violated the following sections of the CBPC:
1. § 17504(a) (prohibiting companies doing business in California from advertising consumer services which are sold only in multiple units at any price other than the multiple unit price at which they are offered);
2. § 17200 (prohibiting unfair business practices);
3. § 17500 (prohibiting the making or disseminating of untrue or misleading statements in the sale of any goods or services).
The same ad also stated that one who took advantage of defendant's London fare could "Drive an Alamo rental car, 3 days free." The ad explained that "Starting on the day you arrive in London, you can get *828 three days free use of an Alamo economy car with unlimited mileage...." A footnote, in smaller type, stated that with respect to the car offer, "Fuel, taxes, optional items not included...." (See Exhibit 1 attached to plaintiff's complaint.) Plaintiff also alleges that the ad failed to state that the consumer was required to pay a mandatory fee for fuel regardless of whether the consumer used any substantial portion of the fuel supplied. Therefore, plaintiff alleges that the car ad violates CBPC § 17500, supra.
Plaintiff filed suit in the Superior Court for San Diego County on March 9, 1989. Defendant was served on or about March 14. Defendant removed the case to this court on April 14, 1989, alleging that this court has federal question jurisdiction because 1) federal law completely preempts the California action; 2) federal law conflicts with the action; 3) substantial questions of federal and constitutional law are raised by the action. Plaintiff filed a motion to remand the case back to state court on May 12, 1989. Defendant opposes the motion to remand and has moved to stay this action, or in the alternative, transfer this action to the Western District of Texas where somewhat related cases are pending.
DISCUSSION
Plaintiff's complaint raises no federal issues on its face, and defendant cannot establish removal jurisdiction because of its federal law and constitutional defenses. Justice Brennan recently stated the jurisdictional test for a unanimous court in Franchise Tax Board:
[O]riginal federal jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims, or that one or the other claim is "really" one of federal law.
Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 13, 103 S.Ct. 2841, 2848, 77 L.Ed.2d 420 (1983). In that case, the plaintiff state tax authorities had sued to enforce its levies against a fund covered under the Employee Retirement Income Security Act (ERISA) and to obtain a declaratory judgment on the validity of the levies notwithstanding ERISA. The Supreme Court held that there was no federal question jurisdiction, because even this suit did not "turn" on a question of federal law. The Court explained that Congress must explicitly intend to preempt the plaintiff's cause of action by giving her some form of relief under the federal statute at issue. In that case, ERISA did not have a provision allowing state tax authorities to sue, therefore the claim "arose under" state law, and state law only.
Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), another unanimous Supreme Court decision, basically affirmed the principles of Franchise Tax Board. It held that the plaintiff's state law claim for reimplementation of insurance benefits and related contract and tort claims was removable, but only because Congress intended to completely preempt state law in this area, and they provided this plaintiff with an exclusive federal cause of action under ERISA for this type of claim. Id.
In the instant case, plaintiff could not bring an action under the Federal Aviation Act or its counterparts to enjoin the alleged false advertising. It appears from the statute that only the Administrator of the FAA may institute a civil action against an airline for a violation of the statute. See 49 U.S.C.A.App. § 1471. In fact, the whole contention of defendant is that the Department of Transportation (DOT) has sole authority to enforce alleged unfair advertising. Assuming arguendo that state regulation of airline advertising were preempted, since the Federal Aviation Act gives plaintiff no cause of action, plaintiff may bring a suit to enforce its alleged right in state court, and such a case "arises under" state law only. See Franchise Tax Board, supra.
Defendants argue that a recent case in this circuit held that federal courts have jurisdiction whenever an area of state law is completely preempted, but again, that court found removal jurisdiction only after it determined that the plaintiff's claim could have been brought under Labor *829 Management Relations Act (LMRA) § 301. See Newberry v. Pacific Racing Ass'n., 854 F.2d 1142, 1146-48 (9th Cir.1988); see also Caterpillar v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (unanimous opinion).
This court will follow the recent advice of Justice Brennan: "In future cases involving other statutes [other than ERISA or the LMRA], the prudent course for a federal court that does not find a clear congressional intent to create removal jurisdiction will be to remand the case to state court." Metropolitan Life Ins., 481 U.S. at 68, 107 S.Ct. at 1548 (Brennan, J., concurring) (emphasis in original). Remand is especially appropriate since improper removal results in vacating our judgment later for lack of subject matter jurisdiction.
Granting a stay pending resolution of motions before the Judicial Panel on Multi-district Litigation, or pending resolution of a somewhat related case in the Western District of Texas is impractical, because neither action is binding on this court if we do not have subject matter jurisdiction. Granting a transfer to the Western District of Texas is equally impractical. Since this court does not have subject matter jurisdiction in this case, neither does a federal court in Texas.
Plaintiff's motion to remand is hereby granted, and defendant's motions to stay or transfer are hereby denied. This case shall be remanded to the California Superior Court for San Diego County.
IT IS SO ORDERED.
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315 F.Supp.2d 630 (2004)
Luis GOMEZ, Petitioner
v.
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT'S INTERIM FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL FOR THE PHILADELPHIA DISTRICT, Respondent.
Civil No. 1:CV-04-0295.
United States District Court, M.D. Pennsylvania.
April 23, 2004.
*631 *632 George R. Barron, Wilkes-Barre, PA, for Petitioner.
Daryl Ford Bloom, Harrisburg, PA, for Respondent.
MEMORANDUM
RAMBO, District Judge.
Before the court is Petitioner Luis Gomez's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner, who is currently detained in Pike County, Pennsylvania, challenges the lawfulness of his final order of removal from the United States and asserts that his removal is not appropriate because he is a national under 8 U.S.C. 1101(a)(22). Because the court concludes that Petitioner is not a national, the court will deny his habeas petition.
I. Background
Petitioner is a native and citizen of the Dominican Republic and was admitted to the United States on October 31, 1962. (Ex. A in Supp. of Am. Pet. for Writ of Habeas Corpus.) On September 9, 1975 Petitioner enlisted in the United States Marine Corps and signed an Oath of Enlistment. (Ex. B in Supp. of Am. Pet. for Writ of Habeas Corpus.) The Oath states:
I, __________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
(Am. Pet. for Writ of Habeas Corpus at 2.) Petitioner served the military on active duty for three years. During this time, he was promoted to the rank of Lance Corporal. (Am. Pet. for Writ of Habeas Corpus at 3.) On November 11, 1977, Petitioner witnessed a helicopter crash that triggered a nervous breakdown and was later diagnosed with schizophrenia. (Id.) Petitioner was transported to the Veterans Administration ("VA") Hospital for treatment and was placed on the temporary disability retired list. (Id.) He was released from the VA Hospital in March 1978. (Id.)
On July 10, 1979, Petitioner was convicted of manslaughter and received a 10-year sentence. (Id.) While incarcerated, Petitioner was discharged from the Marine Corps by reason of physical disability with severance pay effective April 15, 1986. (Id.) Petitioner also took college-level courses during his incarceration and married Belkis Gomez, with whom he has two sons, Jose and David. (Id. at 4.) Petitioner was released from prison in February 1988.
In 1998, Petitioner was convicted and sentenced for the attempted criminal sale of heroin in the third degree. (Gov't's Resp. to Am. Pet. for Writ of Habeas Corpus at 2.) While serving this sentence, *633 the former Immigration and Naturalization Service, now the Bureau of Immigration and Customs Enforcement ("ICE"), commenced removal proceedings on February 9, 2000. (Id. at 2-3.) An Immigration Judge ordered Petitioner removed to the Dominican Republic on April 25, 2001 pursuant to 8 U.S.C. 237(a)(2)(A)(iii) and (a)(2)(B)(i) as an alien who has been convicted of an aggravated felony[1] and of violating a controlled substance law respectively. (Id. at 3.) Petitioner appealed the decision to the Board of Immigration Appeals ("the Board"), but the Board affirmed the Immigration Judge in an August 6, 2001 order. (Id.)
On December 4, 2003, Petitioner was released from prison. (Am. Pet. for Writ of Habeas Corpus at 4.) Upon release, he was detained by ICE, and he remains in its custody. (Id.) Petitioner filed a petition for writ of habeas corpus on February 10, 2004. The parties have briefed the issues, and the matter is ripe for disposition.[2]
II. Legal Standard
Under 28 U.S.C. § 2241(c)(3), a writ of habeas corpus may extend to any person "in custody in violation of the Constitution or laws or treaties of the United States." See also Zadvydas v. Davis, 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Recently, the Supreme Court established that despite comprehensive amendments to judicial review of immigration decisions through the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, federal district courts have jurisdiction to decide habeas corpus petitions filed under 28 U.S.C. § 2241 by aliens subject to deportation. INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); see also Chong v. Dist. Dir., INS, 264 F.3d 378, 382 (3d Cir.2001). However, a district court's review of administrative immigration decisions under § 2241 is limited. First, a district court reviews only the opinion of the Board and does not review both the Board's and the Immigration Judge's opinions. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). Second, the standard of review is restricted to purely legal questions. Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir.2004); Sol v. INS, 274 F.3d 648, 651 (2d Cir.2001); Bowrin v. INS, 194 F.3d 483, 490 (4th Cir.1999). Specifically, a district court may review statutory and constitutional claims as well as claims asserting the erroneous application of legal principles to undisputed facts. Bakhtriger, 360 F.3d at 424-25; Ogbudimkpa v. Ashcroft, 342 F.3d 207, 222 (3d Cir.2003). However, federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations made by the Board. Bakhtriger, 360 F.3d at 420; Sol, 274 F.3d at 651.
III. Discussion
Petitioner contends that his habeas petition should be granted because only aliens may be removed from the United States. Because Petitioner qualifies as a national, his argument goes, he is excluded from the statutory definition of "alien." In response, the Government contends that the court lacks jurisdiction to hear Petitioner's claims and that, in the alternative, Petitioner is not a national as that term is defined in the United States Code and Third Circuit precedent. Because the court finds the Government's second argument *634 persuasive, the court will deny Petitioner's habeas petition.
A. The court has jurisdiction over Petitioner's habeas petition.
The Government argues that the district court does not have jurisdiction to decide Petitioner's habeas petition because under 8 U.S.C. § 1252(b)(5), the court of appeals has sole jurisdiction to determine nationality claims. Section 1252(b)(5) provides in relevant part:
(A) Court determination if no issue of fact. If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.
(B) Transfer if issue of fact. If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim....
The Government interprets this statute as requiring district courts to transfer habeas petitions regarding nationality to the relevant court of appeals.
The court rejects the Government's argument. It is well-established that district courts retain jurisdiction over habeas corpus petitions under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271 (2001); Sandoval v. Reno, 166 F.3d 225, 231 (3d Cir.1999). In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001), the Supreme court analyzed 8 U.S.C. § 1252(b)(9). Although the Court found the statute's purpose was to consolidate judicial review into one action at the appellate court level, the Court determined that the statute applied only to review of an order of removal and not to habeas petitions. Id. at 313, 121 S.Ct. 2271. The Court also concluded that in the absence of a "clear, unambiguous, and express statement of congressional intent to preclude judicial consideration of habeas petitions," preventing district courts from retaining jurisdiction over habeas petitions would raise serious constitutional questions. Id. at 314, 121 S.Ct. 2271. Finally, the Court noted that judicial review and habeas corpus petitions are historically distinct legal concepts. Id. at 313, 121 S.Ct. 2271.
Like the statute in St. Cyr, § 1252(b)(5) does not contain a "clear, unambiguous, and express statement of congressional intent" to divest district courts from jurisdiction over habeas petitions. Thus, following the Supreme Court's reasoning in St. Cyr, to divest district courts of jurisdiction in habeas petitions would raise serious questions of constitutionality. Additionally, § 1252(b)(5) only relates to judicial review of orders of removal. See 8 U.S.C. § 1252(b) (setting forth the requirements for review of orders of removal). In St. Cyr, the Supreme Court acknowledged that judicial review is legally distinct from a habeas petition. Therefore, § 1252(b)(5) cannot be said to preclude the district court's jurisdiction over a petition for writ of habeas corpus.
The Government relies on Salim v. Ashcroft, 350 F.3d 307 (3d Cir.2003) for the proposition that the Third Circuit has recognized that jurisdiction over nationality claims lies only with the appellate court. In Salim, the Third Circuit, in relying on § 1252(b)(5), concluded that it had "jurisdiction to determine jurisdictional issues; that is to say, we are empowered to decide whether Salim is an alien." Id. at 308. The Third Circuit did not, however, hold that § 1252(b)(5) divested district courts of *635 jurisdiction over habeas petitions regarding nationality claims. In fact, the Salim court did not even address the issue. Further, the Third Circuit examined the Salim case under a petition for judicial review, not an appeal of a habeas decision from the district court. As previously stated, a petition for judicial review is historically distinct from a petition for writ of habeas corpus.[3]St. Cyr, 533 U.S. at 313, 121 S.Ct. 2271. In sum, Salim does not hold that § 1252(b)(5) divests the district court's jurisdiction in habeas petitions where nationality is at issue.
The Government also relies on several cases from other jurisdictions that hold that § 1252(b)(5) requires district courts to transfer habeas petitions raising nationality allegations to the relevant court of appeals. See Baeta v. Sonchik, 273 F.3d 1261, 1264 (9th Cir.2001); Rodriguez v. Ashcroft, No. 02-Civ.-1188, 2003 WL 42018, at *4 (S.D.N.Y. Jan. 6, 2003). Because the court finds that the plain language of the statute does not preclude the district court from deciding habeas petitions, the court is not persuaded by this line of cases. Further, the Third Circuit has not directly addressed the issue.[4] In short, following the rationale of the Supreme Court in St. Cyr, the court concludes that it has jurisdiction over habeas petitions regarding nationality.
B. Petitioner is not a national of the United States.
Petitioner alleges that he cannot be deported because he is a national of the United States under 8 U.S.C. § 1101(a)(22). Petitioner claims that the Oath of Enlistment he was required to take when he joined the Marine Corps is objective proof that he owes a permanent allegiance to the United States.
A national is defined as "(A) a citizen of the United States, or (B) a person who, though not a citizen of the United states, owes a permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22). The Third Circuit has held that when a petitioner is a citizen of another country, "nothing less than [United States] citizenship will show `permanent allegiance to the United States.'" Salim, 350 F.3d at 310 (quoting 8 U.S.C. § 1101(a)(22)). In reaching this conclusion, the court relied on the Ninth Circuit's decision in Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 969 (9th Cir.2003), which held that "one may become a `national of the United States' only through birth or by completing the process of becoming a naturalized citizen." The Salim court, therefore, reasoned that an application for citizenship was insufficient *636 to show that one owes a permanent allegiance to the United States. Id. Further, the court was not persuaded that a petitioner who resided in the United States for thirty years, was married to a U.S. citizen, and had two naturalized U.S. children owed a permanent allegiance to the United States. Id. The petitioner in Salim argued that he owed a permanent allegiance to the United States because he had filed a naturalization application and had registered with the Selective Service. Id. at 309. Despite this, the court remarked that "[t]his country has not conferred any status on him that would cause him to `owe' his allegiance to the United States." Id. at 310.
Because Petitioner is a citizen of another country, the reasoning in Salim instructs that he must be a United States citizen in order to show that he owes a permanent allegiance to the United States. That is, Petitioner must demonstrate that he was born in the United States or completed the process of naturalization. The Marine Corps' Oath of Enlistment does not confer citizenship; therefore, it is insufficient to show that Petitioner owes a permanent allegiance to the United States. Further, Petitioner does not even allege that he ever even applied for citizenship to the United States. Petitioner has merely declared his subjective intent to owe a permanent allegiance to the United States. Proof of permanent allegiance, however, must be shown objectively. See Salim, 350 F.3d at 310 ("Although [the petitioner] may subjectively declare an allegiance to the United States, that is not sufficient.").
IV. Conclusion
In accordance with the foregoing discussion, the court determines that it has jurisdiction over Petitioner's habeas petition because the plain language of 8 U.S.C. § 1252(b)(5) does not foreclose jurisdiction of habeas claims and only applies to judicial review, which is a distinct legal issue. Further, foreclosing jurisdiction in habeas claims raises serious constitutional issues. Nevertheless, the court will deny Petitioner's habeas petition because Petitioner failed to demonstrate that he is a national of the United States. An appropriate order will issue.
ORDER
In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:
1) Petitioner Luis Gomez's petition for writ of habeas corpus is DENIED.
2) The Clerk of Court shall close the case file.
NOTES
[1] Petitioner concedes that his offenses are "aggravated felonies" that would subject an alien to removal.
[2] Petitioner did not file a reply brief as permitted by Middle District Local Rule 7.7.
[3] It should be noted that the determination of whether a petitioner is a national is well within a district court's scope of review under § 2241 as long as there are no factual disputes. As stated above, the scope of review under a § 2241 habeas petition is restricted to purely legal questions, but includes an assessment of whether legal principles were erroneously applied to undisputed facts. Bakhtriger v. Elwood, 360 F.3d 414, 424-25 (3d Cir.2004). In the instant matter, the parties do not contest the facts. Rather, Petitioner simply asks the court to make a legal determination as to whether those facts demonstrate that he is a national under 8 U.S.C. § 1101(a)(22).
[4] Even though the Third Circuit has not directly addressed whether § 1252(b)(5) strips district courts of jurisdiction over habeas petitions dealing with nationality claims, in the past the Third Circuit has steadfastly adhered to the reasoning this court applies to the issue. See Liang v. INS, 206 F.3d 308, 321 (3d Cir.2000) (rejecting the Eleventh and Fifth Circuits' interpretation that 8 U.S.C. § 1252(b)(9) eradicated district courts' jurisdiction over § 2241 habeas petitions and noting that "[w]e continue to believe that had Congress intended to eliminate all habeas jurisdiction under § 2241, it would have done so by making its intent explicit in the language of the statute").
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