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902 A.2d 1070 (2006) 279 Conn. 909 STATE of Connecticut v. Edward SINGER. Supreme Court of Connecticut. Decided July 6, 2006. Mary H. Trainer, special public defender, in support of the petition. Frederick W. Fawcett, supervisory assistant state's attorney, in opposition. The defendant's petition for certification for appeal from the Appellate Court, 95 Conn.App. 844, 898 A.2d 222 (2006), is denied.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 96-31222 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERT EARL LEE, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 95-CR-30029 - - - - - - - - - - March 5, 1998 Before JONES, SMITH and STEWART, Circuit Judges. PER CURIAM:* Robert Earl Lee appeals his jury conviction for four counts of making a false statement on a United States Treasury Bureau of Alcohol, Tobacco, and Firearms (ATF) Form 4473 and four counts of being a felon in possession of a firearm. Lee argues that the evidence was insufficient to support his convictions. We have reviewed the record and find that as to counts one and two, a reasonable trier of fact could find the evidence established the essential elements of the offense beyond a reasonable doubt. See * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 96-31222 -2- United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996). As to counts three through eight, we find that the record is not “so devoid of evidence pointing to guilt” or “so tenuous that his conviction is viewed as shocking.” See United States v. Vaquero, 997 F.2d 78, 82 (5th Cir. 1993). Lee also contends that the district court erroneously believed that it lacked the authority to depart downward under U.S. Sentencing Guidelines § 5K2.0 based on Lee’s poor health. Because the district court properly considered its authority and discretion under the Guidelines and determined that a downward departure was not warranted under the circumstances, we lack jurisdiction to review the denial of a downward departure. See United States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995). AFFIRMED.	{ "pile_set_name": "FreeLaw" }
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. ANTHONY COLTON BAKER, Appellant. No. 1 CA-CR 17-0313 FILED 12-5-2017 Appeal from the Superior Court in Yavapai County No. P1300CR201600847 The Honorable Michael R. Bluff, Judge AFFIRMED COUNSEL Arizona Attorney General’s Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Nicole Farnum, Phoenix Counsel for Appellant MEMORANDUM DECISION Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge James P. Beene joined. STATE v. BAKER Decision of the Court T H U M M A, Chief Judge: ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for appellant Anthony Colton Baker has advised the court that, after searching the entire record, she has found no arguable question of law, and asks this court to conduct an Anders review of the record. Baker was given the opportunity to file a supplemental brief pro se, but has not done so. This court has reviewed the record and has found no reversible error. Accordingly, Baker’s convictions and resulting sentences are affirmed. FACTS1 AND PROCEDURAL HISTORY ¶2 In June 2016, a police officer saw Baker driving erratically and initiated a traffic stop. After routine questioning, the officer asked Baker and his passenger where they were going. The officer became suspicious because both Baker and passenger told him they did not know where they were going. The officer asked Baker to exit the truck and then again asked Baker again where he was going, at which point Baker said “I think you know where we’re going.” Baker then said they were “going to Lacey’s house;” the officer had prior knowledge about Lacey being connected to drug-related issues. After another officer arrived, Baker consented to the search of his truck and the officers found a bag of what appeared to be a large amount of methamphetamine and a digital scale. When questioned, Baker said “he was given a bag of methamphetamine to sell.” ¶3 Baker was arrested and charged by indictment with: (1) possession of dangerous drugs (methamphetamine) for sale, a Class 2 felony and (2) possession of drug paraphernalia, a Class 6 felony. During a three-day trial, the State offered testimony from the arresting officers as well as a criminalist who analyzed the substance found in the bag in Baker’s truck, opining it was 7.18 grams of methamphetamine. ¶4 After the State rested, Baker elected to testify, stating the methamphetamine was for his personal use, not for sale. Baker also testified the digital scale was to make sure he was getting the amount of the drug he was paying for, not for use in selling the drug. On cross-examination, Baker admitted to having a “problem” with methamphetamine and did not 1This court views the facts “in the light most favorable to sustaining the verdict, and resolve[s] all reasonable inferences against the defendant.” State v. Rienhardt, 190 Ariz. 579, 588-89 (1997) (citation omitted). 2 STATE v. BAKER Decision of the Court dispute the amount of drug found in the vehicle or the presence of the scale in his truck. Baker denied saying he was given the methamphetamine to sell. One of the officers, however, had testified Baker told him that a friend of his gave him a bag of “methamphetamine to sell” and the quantity of the drug was consistent with possession for sale. ¶5 After the jury was instructed on the law and heard closing arguments, they deliberated and unanimously found Baker guilty as charged. Neither party chose to individually poll the jury and the jury collectively confirmed these were the true verdicts. ¶6 Before sentencing, the superior court received a pre-sentence report. At sentencing, Baker was given an opportunity to speak and the court stated on the record the evidence and materials it considered and the factors it found in imposing sentence. The court found no aggravating factors and a mitigating factor of no prior felony convictions. The court sentenced Baker to concurrent prison terms of five years for the possession of dangerous drugs for sale conviction, and one year for the paraphernalia conviction, appropriately awarding him 37 days presentence incarceration credit. ¶7 This court has jurisdiction over Baker’s timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) section 12-120.21(A)(1), 13-4031 and 13-4033(A).2 DISCUSSION ¶8 This court has reviewed and considered counsel’s brief and has searched the entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999). Searching the record and brief reveals no reversible error. The record shows Baker was represented by counsel at all stages of the proceedings and counsel was present at all critical stages. The record provided also shows there was substantial evidence supporting Baker’s convictions and sentences. From the record, all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the consequences imposed were within the statutory limits and permissible range. CONCLUSION 2Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. 3 STATE v. BAKER Decision of the Court ¶9 This court has read and considered counsel’s brief, and has searched the record provided for reversible error and has found none. Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537 ¶ 30. Accordingly, Baker’s convictions and resulting sentences are affirmed. ¶10 Upon filing of this decision, defense counsel is directed to inform Baker of the status of the appeal and of his future options. Defense counsel has no further obligations unless, upon review, counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Baker shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review. AMY M. WOOD • Clerk of the Court FILED: AA 4	{ "pile_set_name": "FreeLaw" }
956 A.2d 671 (2008) PORTUGUESE AMERICAN LEADERSHIP COUNCIL OF THE UNITED STATES, INC., Appellant, v. INVESTORS' ALERT, INC., et al., Appellees. No. 04-CV-1187. District of Columbia Court of Appeals. Argued June 7, 2007. Decided September 11, 2008. 672 Stephen H. Ring, with whom Eric J. Menhart was on the brief, for appellant.[] Before RUIZ, FISHER, and THOMPSON, Associate Judges. RUIZ, Associate Judge: This appeal stems from the dismissal of appellant's action for money damages and attorney's fees for alleged violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, ("TCPA" or "Act") which prohibits the sending of unsolicited advertisements to fax machines. See id. § 227(b)(1)(C). Appellant, a non-profit organization located in the District of Columbia, filed a class action on behalf of non-profit organizations and others located in the District who have received unsolicited faxes newsletters titled "Investors' Alert" from appellees. The trial court granted appellees' motions to dismiss after interpreting the TCPA provision that private actions may be filed in state courts "if 673 otherwise permitted by the laws or rules of Court of a State" to mean that a state (which under the TCPA includes the District of Columbia) must affirmatively adopt enabling legislation opting to permit private lawsuits to be brought under the Act-something the District of Columbia has not done. Alternatively, the trial court based its dismissal of the complaint against some of the defendants on a determination that they were "service providers" not liable under the TCPA for sending the unsolicited faxes. We interpret the TCPA differently and hold that private causes of action may be brought in Superior Court under the Act without the need for enabling legislation in the District of Columbia. As the TCPA provides a legal basis for appellant's claims, the trial judge's dismissal of the complaint for failure to state a claim was legal error. We also reverse as premature the trial court's dismissal on the alternative ground that some of the defendants acted only as "service providers," and therefore are not liable under the Act. The complaint alleged otherwise and, in the absence of discovery, the trial court did not have the information necessary for a full appraisal of their roles and activities in the development and distribution of the unsolicited faxes. Accordingly, we reverse and remand the case for further proceedings. I. The complaint alleges that from 1997 to 2001, Investors' Alert, Inc., a company that publishes a newsletter with stock tips titled "Investors' Alert," sent out as many as 50,000 unsolicited faxes a day to a wide number of facsimile machines, including those used by appellant and other members of the purported class.[1] According to the complaint, the newsletters are written by Thomas E. Loyd under the company names Loyd Financial Consulting and Access Financial Consulting. A typical newsletter describes a company and predicts that its stock will soon jump in price. The complaint alleges that the purpose behind the stock tips was to raise the price of Loyd's low-value stocks, which he would then sell en masse. This is known as a "pump and dump" stock manipulation scheme.[2] In addition to Investors' Alert, Inc., twelve defendants are alleged to have participated in the distribution of the unsolicited newsletters. See note on p. 1. One group Loyd Financial Consulting, Access Financial Consulting, and Pecan Tree Consulting was located in Texas and controlled by Loyd. Another group includes World Wide Marketing, Inc., Media Stealth.com, LLC, Michael Cole, and Douglas Black, all hired by Loyd as marketers. Texas companies Cynet, Inc. and Cynet of Texas, Inc., as well as Florida company Vision Lab Telecommunications, are alleged to have prepared and faxed the newsletters. Loyd is named as an individual defendant. The complaint also alleges that an unnamed securities promoter (defendant "John Doe") hired Loyd Financial to issue articles about several stocks, and sold Loyd's stocks. II. The TCPA, enacted by Congress in 1991, prohibits the sending of unsolicited 674 faxes containing advertisement. See 47 U.S.C. § 227(b)(1)(C). The Act seeks to address the increased use of automated telephone equipment to make telephone calls in bulk and fax unsolicited advertisements that cross state lines and fall outside the regulatory jurisdiction of individual states. In introducing one of the bills that would eventually become law, its sponsor, Senator Hollings of South Carolina, noted: The telemarketing industry appears oblivious to the harm it is creating. Two months ago, a representative of the Direct Marketing Association said on television that telemarketers have a right to call us in our homes. This is absurd. I echo Supreme Court Justice Louis Brandeis, who wrote 100 years ago that "the right to be left alone is the most comprehensive of rights and the one most valued by civilized man." Mr. President, I originally introduced this bill on July 11 of this year. Since then, my constituents in South Carolina and citizens around the country have deluged my office with letters of support for this bill. Senator Inouye, the chairman of the Communications Subcommittee, held a hearing on the bill on July 24. Not one party at that hearing testified in opposition to the bill. Because of the enormous public support, the bill was ordered reported by the Commerce Committee, which I chair, and without objection on July 31. Mr. Steve Hamm, administrator of the Department of Consumer Affairs in South Carolina, informed me that his office receives more complaints about computerized telephone calls and 900 numbers than any other problems. Despite the fact that South Carolina recently passed legislation to protect consumers from unwanted computerized calls within our State, South Carolina consumers continue to suffer from computerized calls made from out-of-State. The State law does not, and cannot, regulate interstate calls. Only Congress can protect citizens from telephone calls that cross State boundaries. That is why Federal legislation is essential. 137 Cong. Rec. 30821. At the time the federal statute was being considered, states had begun to take action to restrict unsolicited telemarketing practices. See S.Rep. No. 102-178 at 3; H.Rep. No. 102-317, 1st Sess., at 25 (1991). The District of Columbia, for example, in 1991 banned the use of automated telephone dialing systems for commercial solicitation, see D.C.Code § 34-1701 (2001) ("A person may not use an automated dialing, push-button, or tone-activated address signaling telephone system with a prerecorded message for the sole purpose of: (A) Soliciting a person over the telephone to purchase or lease goods, services, or real property...."), but has not enacted a similar statute prohibiting "junk faxes." As Senator Hollings noted, however, state action could not address the problem of interstate calls. The proposal before the Congress was comprised of two bills. One bill, sponsored by Senator Hollings, provided for regulations regarding automatic dialing system calls and unsolicited advertisements by fax machines. See 137 Cong. Rec. 30820-21. The other bill, sponsored by Senator Pressler of South Dakota, addressed phone calls from "live persons." See 137 Cong. Rec. 30824. Upon reaching the Senate floor, neither bill addressed private causes of action. On November 7, 1991, both Senator Hollings and Senator Pressler amended their respective bills to provide for private causes of action in state courts, and Congress incorporated these provisions in the final legislation, one for automatic telephone 675 calls and fax transmissions, see 47 U.S.C. § 227(b)(3), and another dealing with certain unwanted live telephone contacts, see 47 U.S.C. § 227(c)(5). The language relevant to this appeal "if otherwise permitted by the laws or rules of court of a state" is identical in both provisions. 47 U.S.C. § 227(b) concerning unsolicited faxes provides as follows: Restrictions on use of automated telephone equipment. (1) Prohibitions. It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States . . . (C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement; . . . . (3) Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. (emphasis added). The TCPA provides several modes of enforcement. A state's attorney general, see 47 U.S.C. § 227(f), and the Federal Communications Commission, see id. § 227(b)(2), can bring a violator into compliance. A third course provided is that a "person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action based on a violation" of the Act. See id. § 227(b)(3)(A) (emphasis added).[3] The question presented in this appeal is what Congress intended by the phrase "if otherwise permitted by the laws or rules of court of a State." The trial court interpreted the "if otherwise permitted" language in the TCPA to mean that before a private right of action can be exercised, a state must "opt in" through enabling legislation that allows the lawsuits to proceed.[4] Because the District 676 of Columbia does not have such enabling legislation, the trial court dismissed the complaint for failure to state a claim. We review de novo the dismissal of a complaint for failure to state a claim. See In re Estate of Curseen, 890 A.2d 191, 193 (D.C.2006) ("Because a motion to dismiss a complaint under Rule 12(b)(6) `presents questions of law, our standard of review... is de novo.'" (citations omitted)). III. We begin our analysis by discussing the implications of the Supremacy Clause of the United States Constitution. The Supremacy Clause states that "[T]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2 (emphasis added). In interpreting the Supremacy Clause, the Supreme Court has held that Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum... but because the Constitution and law passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws "the Supreme Law of the Land," and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. Howlett v. Rose, 496 U.S. 356, 367, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). The Court went on to conclude that "[a] state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of `valid excuse.'" Id. at 369, 110 S.Ct. 2430 (quoting Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 387-88, 49 S.Ct. 355, 73 L.Ed. 747 (1929)). Thus, the default rule is that federal laws are enforceable in state courts, unless there is "an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981). There is therefore a fundamental tension 677 between an interpretation of the TCPA that would require the Council of the District of Columbia to pass enabling legislation before a private action may be brought in Superior Court and the rule of presumed enforceability derived from the Supremacy Clause. In our view, the language of the TCPA, its purpose and legislative history support resolution of that tension in favor of enforceability without prior conditions. First, we agree with the observation of the Maryland Court of Appeals that "[t]he phrase `if otherwise permitted by the laws or rules of court of a state' certainly appears to refer to the neutral general jurisdictional and procedural laws and rules governing each state's court system." R.A. Ponte Architects, Ltd. v. Investors' Alert, Inc., 382 Md. 689, 857 A.2d 1, 14 (2004). Such a reading comports with the presumed enforceability of federal law in state courts under the Supremacy Clause.[5] Moreover, this view is supported by the TCPA's legislative history. In introducing the amendment containing the private cause of action codified at 47 U.S.C. § 227(b)(3), Senator Hollings set forth some of his procedural concerns regarding the new provision: The ... bill contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court. The consumer outrage at receiving these calls is clear. Unless Congress makes it easier for consumers to obtain damages from those who violate this bill, these abuses will undoubtedly continue. Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys' costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill. 137 Cong. Rec. 30821-22 (emphasis added). The senator's comments make clear that it was up to the states to determine "which courts" would hear TCPA claims. See Consumer Crusade, Inc. v. Affordable Health Care Solutions, Inc., 121 P.3d 350, 355 (Colo.2005) ("[W]hen Congress created a private right of action that could be prosecuted in state courts, `if otherwise permitted by the laws or rules of court of a state,' it was acknowledging that the states could apply their own rules of procedure...."). Rulings by the Federal Communications Commission also support that no enabling legislation is necessary. In the area of telephone solicitations, the FCC has ruled 678 that the TCPA allows consumers to file suit in state court, unless the state has enacted rules to the contrary: The TCPA provides consumers with a private right of action, if otherwise permitted by state law or court rules, for any violation of the autodialer or prerecorded voice message prohibitions and for any violation of the guidelines for telephone solicitations. Absent state law to the contrary, consumers may immediately file suit in state court if a caller violates the TCPA's prohibitions on the use of automatic telephone dialing system and artificial or prerecorded voice messages. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C.R. 8752, 8780, 1992 WL 690928 (1992) (emphasis added) (citations omitted) (hereinafter FCC Regulations Implementing the TCPA (1992)). We defer to the FCC's reasonable interpretation of a statute it is charged with implementing. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As the operative language of the TCPA is the same with respect to suits to enforce the prohibition against telephone solicitations and unsolicited advertisement via fax machine, compare 47 U.S.C. § 227(b)(3), with id. § 227(b)(1)(A), we conclude that the FCC would come to the same interpretation as to both. A majority of state courts hold that enabling legislation is unnecessary to make the TCPA's private action provision enforceable in state courts. For example, the Maryland Court of Appeals, ruling on the same issue involving the same parties before us, held that even without enabling state legislation, "Maryland trial courts have jurisdiction over the private cause of action created by 47 U.S.C. § 227(b)(3)." R.A. Ponte Architects, Ltd., 857 A.2d at 18. The court deemed the phrase "if otherwise permitted by the laws and rules of a court of a State" to be an "express[ion of] the Congressional recognition that neutral state laws and rules ... are applicable to the federal cause of action." Id. at 11. Similarly, the Supreme Judicial Court of Massachusetts has held that "47 U.S.C. § 227(b)(3) does not require a State to pass enabling legislation before private claims may be brought in its State courts." Mulhern v. MacLeod, 441 Mass. 754, 808 N.E.2d 778, 779 (2004). The Mulhern court concluded that the "if otherwise permitted" language in the TCPA was "more likely intended to reflect that Federal claims remain subject to State procedural law...." Id. at 780. The court reasoned that "[t]he TCPA was crafted to accommodate State interests, while respecting the structure, jurisdiction, and procedural rules of State courts." Id. at 780-81 (footnote omitted). Based on similar reasoning, most state courts that have considered the issue, have concluded that a private cause of action under the TCPA may be brought in state court without specific enabling legislation, and foreclose such actions only if there is a state law or rule of procedure that precludes it. See Lary v. Tom Taylor Agency, 878 So.2d 1165, 1167 (Ala.Civ.App.2003) (noting that in a similar case "we rejected the proposition that states must actively `opt in' with respect to the TCPA's enforcement provisions in order for private parties to be able to seek damages or penalties under 47 U.S.C. § 227(b)(3)"); Kaufman v. ACS Sys., Inc., 110 Cal.App.4th 886, 2 Cal.Rptr.3d 296, 306 (2003) (noting that "a person may file a TCPA action in state court as long as the state has not prohibited it"); Condon v. Office Depot, Inc., 855 So.2d 644, 646-47 (Fla.Dist.Ct.App.2003) (joining the majority view concluding "that the State is not required to adopt enabling legislation before a state court of competent jurisdiction 679 can entertain" a private right of action under TCPA); Carnett's, Inc. v. Hammond, 279 Ga. 125, 610 S.E.2d 529, 530 (2005) (holding that TCPA "provides a private right of action in state court unless prohibited by state law"); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 910 (Mo.2002) (en banc) ("[T]he TCPA does not condition the right to bring a private cause of action ... on a state's adoption of specific legislation permitting such suits."); Edwards v. Direct Access, LLC, 121 Nev. 929, 124 P.3d 1158, 1160 (2005) (noting that "a separate state law or rule of court conferring jurisdiction to consider TCPA claims in state court is not necessary for the state court to have jurisdiction over the federal claim"); Zelma v. Konikow, 379 N.J.Super. 480, 879 A.2d 1185, 1188 (2005) ("`[I]f otherwise permitted by' state law and court rules was intended to provide states an opportunity to `opt-out' of the TCPA and to recognize that states may apply neutral rules and procedures to foreclose TCPA actions."); Kaplan v. Democrat & Chronicle, 266 A.D.2d 848, 698 N.Y.S.2d 799, 800 (N.Y.App.Div.1999) (ruling that in the "absence of a State statute declining to exercise the jurisdiction authorized by the [TCPA], a State court has jurisdiction over TCPA claims").[6] Based on the text of the statute, its purpose and legislative history, and the FCC's authoritative interpretation, we agree with the great majority of courts that Congress did not intend to require enabling legislation before a private cause of action under the TCPA may be brought in our courts.[7] As the "Superior Court of the District of Columbia is a court of general jurisdiction," DeGroot v. DeGroot, 939 A.2d 664, 668 (D.C.2008), and there appears to be no D.C. law or rule to preclude the action[8] the trial court erred in dismissing 680 the complaint for failure to state a claim under the TCPA. IV. Having concluded that the TCPA is enforceable by private action in the District of Columbia, we must now decide whether the trial court erred in dismissing the complaint on the alternative ground that some of the defendants were mere "service providers" and therefore not liable under the Act. We hold that it did. The TCPA provides that "it shall be unlawful for any person within the United States to use any telephone facsimile machine... to send an unsolicited advertisement to a telephone facsimile machine." 47 U.S.C. § 227(b)(1) (emphasis added). The trial court concluded that "facsimile broadcast service providers are not `messenger senders' and thus, are not responsible for alleged violations of the TCPA." The trial court based its decision on several FCC rulings. First, it cited the FCC's 1992 Regulations Implementing the TCPA, see supra, which provided that "in the absence of a high degree of involvement or actual notice of an illegal use and failure to take steps to prevent such transmissions, common carriers will not be held liable for the transmissions of a prohibited facsimile message." Order at 12 (quoting In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C.R. at 8770). The trial court also relied on a subsequent FCC ruling, issued in 1995, which clarified that the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements, and that fax broadcasters are not liable for compliance with this rule. This interpretation is consistent with the TCPA's legislative history, and with our finding in the Report and Order that carriers will not be held liable for the transmission of a prohibited message. Id. (quoting In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12391, 12407 (1995)). Finally, the trial court noted an FCC ruling from 1997 which concluded that "the sender of a facsimile message is the creator of the content of the message." Id. at 13 (quoting In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 12 F.C.C.R. 4609, 4613 (1997)). In enforcing the TCPA, however, the FCC has emphasized that because the statute makes it unlawful for "any person... to send ..." unsolicited fax advertisements, a fax broadcaster that serves as "`more than a mere conduit for third party faxes' is liable under the TCPA." In re Fax.com, Inc., 19 F.C.C.R. at 755 (quoting Texas v. American Blastfax, Inc., 121 F.Supp.2d 1085, 1089-90 & n. 6 (W.D.Tex. 2000) (rejecting prior FCC rulings that fax broadcasters are not liable in favor of an interpretation that to be liable under the TCPA a defendant needs to be "more than a common carrier[,] or service provider,... [or] more than a mere conduit")).[9] In sum, the FCC regulation establishing that the liability of fax broadcasters depends on whether the broadcaster has had a "high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions," 47 C.F.R. § 64.1200(a)(3)(vii) 681 (2007), has been interpreted in enforcement actions as imposing liability on broadcasters that "serve as more than a mere conduit for third party faxes." 19 F.C.C.R. at 788. As in the case of the interpretation of the TCPA's provision for private causes of action in state court, we defer to an agency's reasonable interpretation of who may be held liable under a statute it is charged with implementing, see Chevron U.S.A., Inc., 467 U.S. at 844, 104 S.Ct. 2778, and review the trial court's determination that several of the defendants could not be held liable under the standard that the FCC has established. In this case, no discovery had been conducted before the motion to dismiss was decided. In dismissing the complaint under Rule 12(b)(6), the trial court relied solely on the allegations in the complaint, and found that even viewing the complaint's allegations as true, appellees Vision Lab Telecommunications, Inc., MediaStealth.com, Douglas Black, Michael Cole, Worldwide Marketing, Inc., and Cynet, Inc. would not be liable under the TCPA because they "did not create the content of the message nor was the fax transmitted on their behalf." In doing so, the trial court discounted the allegation in appellant's complaint that these defendants "were significantly involved in the development of the content to be faxed" by providing the "proprietary software of Cynet and Vision Lab, and their secure websites to translate the Investors' Alert [newsletters] into digital format suitable for the transmissions to be made using the defendants' methods and facilities," because the trial court considered that these activities "do[ ] not equate to creating new content." But as discussed, supra, FCC rulings do not require as a condition of liability under the TCPA that the "sender" be the "creator" of the content. See In re Fax.com, 19 F.C.C.R. at 749 (finding liability where company "specializes in transmitting its clients' advertisements to telephone facsimile machines where numbers are contained in [its] data base ... [and] offers to design or improve its clients' advertising copy"); American Blastfax, Inc., 121 F.Supp.2d at 1089 (company more than a common carrier or service provider and liable under TCPA where it "maintains and uses a database of recipient fax numbers, actively solicits third party advertisers and presumably reviews the content of the fax advertisements it sends"). The trial court also disregarded some of appellant's other assertions, for example, that Cynet and Vision Lab "provided... lists of facsimile numbers" and "used [their] proprietary software and websites on the Internet to control the content and format of Investors' Alert, translate the content of Investors' Alert into a form that suited their transmission capabilities; determined the precise times and destinations of the transmissions; and generated and forwarded to the other Defendants detailed reports containing data on the transmissions."[10] If assumed to be true as they must be for purposes of a Rule 12(b)(6) motion, see Atkins v. Indus. Telecomms. Ass'n, Inc., 660 A.2d 885, 887 (D.C.1995), these allegations in the complaint would take these defendants out of the category of "mere conduits for third party faxes."[11] Discovery will reveal 682 whether the defendants' level of involvement in the unsolicited fax advertisement operation actually went beyond that of "mere conduits," and, as alleged in the complaint, included, for example, the provision of fax numbers. Therefore, we conclude that based only on the complaint, dismissal was improper. Further discovery as to the precise role that these defendants played in the overall advertisement operation is necessary before the trial judge can determine whether they may be held liable under the TCPA.[12] Accordingly, we reverse the dismissal of appellant's complaint and remand for further proceedings consistent with this opinion.[13] So ordered. NOTES [] Counsel for appellees submitted a statement in lieu of brief stating that they were unable to contact their clients and therefore were not authorized to file a brief. [1] The trial court deferred class certification issues. [2] In fine print on the bottom of the page, the newsletters disclose that Loyd Financial Consulting/Access Financial Consulting are paid in the advertised company's stock by Pecan Tree Consulting, Inc., a company also owned and controlled by Loyd, or directly by the advertised company. [3] Unusually, the TCPA, a federal statute, does not permit a cause of action to be filed in federal court. See, e.g., Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir.2000); Foxhall Realty Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir.1998); Int'l Sci. & Tech. Inst., Inc. v. Inacom Communic'ns, Inc., 106 F.3d 1146, 1152 (4th Cir. 1997). [4] Quoting the dictionary, the trial court noted that "`[O]therwise[]' is defined as `in another way[,]'" and that "`[p]ermit' is defined as (1) to consent to and (2) to give permission to or for." WEBSTERS II NEW RIVERSIDE UNIVERSITY DICTIONARY 833, 877-78 (2d ed.1984), and reasoned that [P]utting the two definitions together in context, a person may bring a private state action if the state laws or rules consent to private actions or give permission for private actions, in another way. Stated differently, the state must take some affirmative action to allow a private right of action. An argument that state silence authorizes a private action until the state takes permission away, simply cannot be read into the plain meaning of the text. The trial court also read Senator Hollings' floor statement, quoted supra, as intending "that State Legislatures can decide the extent to which the local courts are burdened with these private lawsuits, and what, if anything, must be done to remedy the problem so as to maintain the right to sue or to limit this right. Naturally, this can dissolve into a blunt matter of whether to appropriate more money to pay for judicial resources associated with this type of litigation." The problem of increasing the burden on D.C. courts without enabling legislation is exacerbated in the case of the District of Columbia, in the trial court's view, because the Council of the District of Columbia has "no authority to provide concomitant funding to pay for accommodating those suits in the local courts ... [or] the authority to alter the size of the Court itself ... [or] to alter the fundamental organization of the Superior Court.... All of this is within the exclusive province of the United States Congress." The trial court concluded: These basic facts of life about the District of Columbia are more than sufficient to demonstrate the vagaries of presuming that there is an unfettered private right of action imposed upon the Courts of the District of Columbia by the mere existence of the federal statute. Such problems do not exist among the states. Thus, this Court concludes that in order for a private right of action to exist in the District of Columbia Courts under the TCPA, the Council of the District of Columbia must expressly say so. Otherwise, there is potential for this court to be overwhelmed with TCPA actions, but stranded without resources to handle those actions. Above all, whether a legislature has "opted in" or "opted out," neither the United States Congress nor the Council of the District of Columbia has "opted" either way for the District of Columbia as a discrete jurisdiction. The total lack of such a decision is sufficient to justify granting the instant Motion to Dismiss, because there has been no legislative action making any conscious choice at all. [5] In denying the motion to set aside the dismissal, the trial court rejected appellant's argument based on the Supremacy Clause because it had "focused squarely on the internal language of the TCPA." Although we agree with the trial judge that the precise legal issue is one of statutory interpretation, focused on the language used in the statute, that exercise must itself be conducted within the larger context of the Supremacy Clause and the presumption it creates that federal laws are enforceable in state Courts. [6] It appears that among state courts only Texas has concluded that a state must "opt in" to allow private TCPA claims in state courts, arriving at that conclusion six years after Texas had passed enabling legislation. See Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 184 S.W.3d 707 (Tex.2006); Autoflex Leasing, Inc. v. Mfr. Auto Leasing, Inc., 16 S.W.3d 815 (Tex.App.2000). [7] There is no basis in the TCPA to conclude that due to circumstances "unique" to the court's budgeting in the District of Columbia, Congress intended that a different enforcement scheme would apply in this jurisdiction. Even if that could be a reason for the Council of the District of Columbia to pass legislation purporting to "opt out" of the TCPA private cause of action, it has not done so. [8] In light of the presumption that federal statutes are enforceable in state courts, we do not understand the enforcement scheme under the District's statute prohibiting unsolicited telephone solicitations which provides for enforcement by the Attorney General without provision for a private cause of action, see D.C.Code 34-1701(b)(5), and which was enacted before the TCPA as an implicit rejection of the notion that the private cause of action subsequently created by Congress in the TCPA should be cognizable in the District of Columbia. See Condon, 855 So.2d at 648 (noting that because state law providing for enforcement by attorney general preceded enactment of the TCPA, court did "not consider it as a legislative refusal to permit a private cause of action under this later-enacted federal law"). Nor do we think that the District's enactment of legislation to prohibit unsolicited telephone calls, but not unsolicited faxes, should be interpreted as an implicit rejection of the right to bring a private cause of action under the TCPA for unsolicited faxes. As noted, the District's statute, D.C.Code § 34-1701, was enacted just as Congress was considering the TCPA. The subsequent inaction of the Council of the District of Columbia to expand the District's statute to cover facsimiles could just as well be interpreted as a recognition that after the federal statute, further local legislation was unnecessary to protect District residents from unsolicited commercial faxes. See In re Fax.com, Inc., 19 F.C.C.R. 748 (2004) (noting that TCPA's prohibitions apply to both interstate and intrastate transmissions) (citing 47 U.S.C. §§ 152(b) & 227(e)). Consequently, we need not decide whether the District of Columbia is free to "opt out" of the TCPA's scheme providing for private causes of action in "state" courts. [9] In this case, the trial court rejected the reasoning in American Blastfax, Inc., relying instead on the FCC's earlier interpretations, without realizing that the FCC subsequently adopted the American Blastfax approach. [10] The complaint alleges that Cole, Black and MediaStealth "acted as agents of Vision Lab in all of its activities, and acted as liaisons with the other Defendants and with non-parties in coordinating and executing the steps necessary to accomplish the broadcast fax transmissions." [11] In 2006, after the trial court's dismissal of the complaint in this case, the FCC ruled: Under the current rules, a fax broadcaster also will be liable for an unsolicited fax if it demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile advertisements, and the Commission will continue to apply this standard under our revised rules. If the fax broadcaster supplies the fax numbers used to transmit the advertisement, for example, the fax broadcaster will be liable for any unsolicited advertisements faxed to consumers and businesses without their prior express invitation or permission. The Commission finds that a fax broadcaster that provides a source of fax numbers, makes representations about the legality of faxing to those numbers or advises a client about how to comply with the fax advertising rules, also demonstrates a high degree of involvement in the transmission of those facsimile advertisements. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed.Reg. 25967, 25971 (proposed May 3, 2006) (codified at 47 C.F.R. pt. 64) (emphasis added). [12] The complaint alleged that appellees "conduct[ed] business and engaged in a regular course of conduct in the District via repeated and targeted transmissions of fax advertisements to persons in the District." Except in the case of Pecan Tree Consulting, the trial court recognized that further discovery was necessary to determine whether the other defendants have the minimum contacts with this forum necessary to be subject to the court's personal jurisdiction. We conclude that the lack of discovery also renders premature the trial court's decision that the court had no personal jurisdiction over Pecan Tree Consulting. Although the trial court concluded that Pecan Tree provided only "financial and/or administrative assistance" to the advertising operation, and did not send any faxes or target any business in the District of Columbia, the complaint avers that "the Loyd companies ... conduct overlapping business transactions, cannot be distinguished among each other, and are used interchangeably in the business practices of Defendant Loyd." As Pecan Tree is allegedly one of Loyd's companies, and, according to the complaint may have conducted some of the advertising itself, or operated as an alter ego of Loyd or the companies he controls, discovery is required to determine whether Pecan Tree had the required minimum contacts with the District so as to make it subject to personal jurisdiction in the present action. See Jackson v. Loews Wash. Cinemas, Inc., 944 A.2d 1088, 1095-98 (D.C.2008) (discussing evidence necessary to establish agency relationship or to pierce the corporate veil so as to establish personal jurisdiction). [13] Appellant's counsel filed a motion to dismiss the appeal with respect to Vision Lab Telecommunications, Inc., following a settlement between that appellee and six members of the purported plaintiff class. As we are remanding the case to the trial court, we remand as well for initial decision by the trial court the request to dismiss the lawsuit against Vision Lab in light of the pending motion for class certification. See Super. Ct. Civ. R. 23(e) (requiring approval of court before dismissing or compromising a class action).	{ "pile_set_name": "FreeLaw" }
981 So.2d 1179 (2006) K.H. v. W.F. No. 2040880. Supreme Court of Alabama. February 3, 2006. Decision of the Alabama Court of Civil Appeal without Opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
76 F.3d 378 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.David BILLUPS, Plaintiff-Appellant,v.Michael TRAXLER, et al., Defendants-Appellees. No. 95-4163. United States Court of Appeals, Sixth Circuit. Jan. 30, 1996. Before: CONTIE, NELSON, and BATCHELDER, Circuit Judges. ORDER 1 The plaintiff filed a pro se prisoner's civil rights action in the district court asserting the denial of due process in prison disciplinary proceedings. In an order of October 13, 1995, the district court dismissed the action as frivolous under 28 U.S.C. § 1915(d) on grounds the plaintiff had failed to allege facts showing a liberty interest protected by the due process clause. The plaintiff filed a notice of appeal from that order on October 24, 1995. On the same day, he also filed in the district court a motion to alter or amend the order of dismissal. 2 This court is now in receipt of a January 2, 1996, order of the district court construing the plaintiff's motion as one under Rule 60(b), Fed.R.Civ.P., to vacate the order of dismissal and indicating it is disposed to grant the motion if the appeal is remanded to the district court. In so doing, the district court has followed the procedure outlined in First Nat'l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir.1976), for the remand of an appeal for the consideration of a Rule 60(b) motion filed during the pendency of an appeal. In light of that order, the plaintiff has filed a motion to remand his appeal to the district court. 3 Pursuant to the provisions of Rule 4(a)(4)(F), Fed.R.App.P., a Rule 60(b) motion filed within ten days of the entry of judgment renders ineffective a notice of appeal filed before the disposition thereof.* As a result, the district court retained jurisdiction to rule upon the plaintiff's motion without a need to use the Hirsch certification procedure. Nonetheless, in order to expedite this matter and to provide a clear jurisdictional basis for the district court to act in this matter, we will remand the instant appeal to the district court for further proceedings therein as contemplated by the district court's order of January 2, 1996. 4 It therefore is ORDERED that this appeal is remanded to the district court and is stricken from the docket of this court. * Because the district court's order of October 13, 1995, was not entered on the district court docket sheet until October 16, 1995, the plaintiff's motion was within the ten-day limit of Rule 4(a)(4)(F). See also Rule 6(a), Fed.R.Civ.P., which excludes weekends and holidays when the time for filing a motion is less than eleven days	{ "pile_set_name": "FreeLaw" }
654 F.3d 609 (2011) Dora Liliana GIRALDO; Isabella Santamaria, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent. No. 09-4445. United States Court of Appeals, Sixth Circuit. Argued: April 19, 2011. Decided and Filed: August 12, 2011. ARGUED: Jennifer Jordan Hall, Louisville, Kentucky, for Petitioners. Wendy Benner-Leon, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Jennifer Jordan Hall, Louisville, Kentucky, for Petitioners. Emily Anne Radford, United States Department of Justice, Washington, D.C., for Respondent. 610 Before: BATCHELDER, Chief Judge; SUHRHEINRICH and GRIFFIN, Circuit Judges. OPINION SUHRHEINRICH, Circuit Judge. Petitioner Dora Liliana Giraldo and her minor daughter (collectively Petitioners), seek review of the order of the Board of Immigration Appeals ("BIA") vacating the immigration judge's ("IJ") order granting Petitioners withholding of removal. The Attorney General contends that because the BIA also remanded to the IJ to allow Giraldo to apply for voluntary departure, there is as yet no final order, such that we lack jurisdiction. We conclude that we have jurisdiction, but decline to exercise it for prudential reasons. I. Background Petitioners illegally entered the United States at El Paso, Texas in February 2002, from Colombia. They applied for asylum on August 10, 2006. They also sought withholding of removal and relief under the Convention Against Torture ("CAT"). Their application was untimely and was referred to the immigration court.[1] By Notices to Appear served March 1, 2007, Petitioners were charged pursuant to section 212(a)(6)(A)(i) of the Immigration of Nationality Act ("INA") 8 U.S.C. § 1182(a)(6)(A)(i), with being removable from the United States as aliens illegally present in the United States without inspection, admission, or parole. Petitioners conceded the charges, and their removability is uncontested on review. The IJ held an evidentiary hearing on October 11, 2007. The IJ denied Petitioners' application for asylum as untimely and declined to withhold removal under CAT for lack of proof. The IJ found both Petitioners removable under 8 U.S.C. § 1182(a)(6)(A)(i), but granted Petitioners withholding of removal as to Colombia under 8 U.S.C. § 1231(b)(3). The IJ further "order[ed] both [Petitioners] to be removed in accordance with Section 241(b) [8 U.S.C. § 1231(b)] to any country other than Colombia." The Department of Homeland Security ("DHS") appealed the decision in both cases, claiming that the evidence presented was vague and lacked corroboration. Petitioners moved to consolidate the appeals.[2] On October 30, 2009, the BIA concluded that Petitioners failed to establish a clear probability of future persecution in Colombia on account of political opinion. It sustained the DHS's appeal, reversed the IJ's grant of withholding of removal, and "remanded" the record to the IJ "for the sole purpose of allowing [Petitioners] to apply for voluntary departure." Petitioners now seek review in this court, a stay of removal, and an order staying the BIA's remand to the IJ. Respondent, the Attorney General ("Attorney General" or "Government"), has moved to dismiss the petition for lack of jurisdiction. On February 4, 2010, this court denied the motion to dismiss, but directed the parties to address this court's jurisdiction in their appellate briefs. This court also denied 611 Petitioners' motion to stay the BIA's remand to the IJ, but stayed Petitioners' removal pending review. Petitioners filed a timely petition for review of the BIA's decision with this court. First we must consider the Government's motion to dismiss. II. Analysis A. Jurisdiction The Attorney General argues that this court lacks jurisdiction to consider the petition for review because there is no final order of removal. The Attorney General claims that the order is not final because the BIA remanded the proceedings to the IJ for further consideration of voluntary departure relief. Petitioners respond that an order of voluntary departure is discretionary and there is nothing left pending before the BIA. We review questions of subject matter jurisdiction and law de novo. Elgharib v. Napolitano, 600 F.3d 597, 600-01 (6th Cir. 2010). Section 242, 8 U.S.C. § 1252, of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996), is the statutory basis for judicial review of administratively final removal orders. 8 U.S.C. § 1252(a). Our "review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter" is limited to "judicial review of a final order." Id. § 1252(b)(9). This court has jurisdiction to review "a final order of removal" if "(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of that order." Id. § 1252(d). "The term `order of [removal]' means the order of the special inquiry officer[3], or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is [removable], concluding that the alien is [removable] or ordering [removal]." 8 U.S.C. § 1101(a)(47)(A).[4] Orders of removal became administratively final upon the earlier of "(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals." 8 U.S.C. § 1101(a)(47)(B)(i) & (ii). Federal appellate court review is "the sole and exclusive means for judicial review of an order of removal." 8 U.S.C. § 1252(a)(5). But such review is limited. First, subsection 242(a)(2)(B) precludes the review of an order granting voluntary departure. Section 1252(a)(2)(B)(i) states that "no court shall have jurisdiction to review ... any judgment regarding the granting of relief under ... section 1229c." Id. § 1252(a)(2)(B)(i). Further, § 1252(a)(2)(B)(ii) provides that "no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified 612 under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." Id. § 1252(a)(2)(B)(ii).[5] Voluntary departure is a discretionary form of relief. 8 U.S.C. § 1229c(a)(1); Harchenko v. INS, 379 F.3d 405, 411 (6th Cir.2004). And § 1229c specifically excludes judicial review of the denials of a request for voluntary departure. 8 U.S.C. § 1229c(f) ("No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure under subsection (b) of this section, nor shall any court order of a stay of an alien's removal pending consideration of any claim with respect to voluntary departure."); see also Harchenko, 379 F.3d at 412 n. 2 ("It is clear under the IIRIRA this court has no authority to review discretionary grants and denials of voluntary departure ... [under 8 U.S.C. § 1229c(f)]"). See generally Ngarurih v. Ashcroft, 371 F.3d 182, 193 (4th Cir.2004) ("IIRIRA also changed the rules concerning judicial review of voluntary departure decisions."). So the question in this case is whether we have an administratively final order of removal for purposes of § 1252 despite the fact that the BIA remanded to the IJ "for the sole purpose of allowing Petitioners to apply for voluntary departure." A number of courts have held that a BIA order denying relief from removal and remanding for the exclusive purpose of considering a request for voluntary departure is a final order of removal subject to federal appellate court jurisdiction. See Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d Cir.2008) (reasoning that the IJ's underlying finding of removability based on the alien's concessions of removability remains in place after BIA removes an impediment to removal); Saldarriaga v. Gonzales, 402 F.3d 461, 466 n. 2 (4th Cir. 2005) (holding that BIA's reversal of IJ's grant of asylum and remand to IJ to allow the petitioner to apply for voluntary departure was an immediately appealable final order); Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1157 (11th Cir.2003) (per curiam) (holding that a BIA order denying relief from removal but remanding the case for voluntary departure proceedings or other subsidiary determinations was a final order of removal because "all of the issues presented to us were subject to a final order by the BIA and there is nothing remaining for [the petitioner] to appeal as the only thing left for the IJ to determine is the country to which [the petitioner] will be removed"); Castrejon-Garcia v. INS, 60 F.3d 1359, 1361-62 (9th Cir.1995) (holding that the BIA's order reversing the grant of suspension and remanding to the IJ for a determination of voluntary departure was a final order of removal because "there was nothing pending before the Board and the petitioner had no reason or basis for appealing the Immigration Judge's decision in his favor"). This court is in accord. See Perkovic v. INS, 33 F.3d 615, 619 (6th Cir.1994) ("We are aware of no authority for the proposition that a BIA order rejecting an asylum application is not a final order unless a formal order of deportation has already been issued."). Further, a number of courts of appeals have held that an order is final for purposes of § 1252(a)(1) when the removability 613 determination is no longer appealable to the BIA, even if a formal order of removal has not yet been entered, see, e.g., Lazo v. Gonzales, 462 F.3d 53, 54 (2d Cir.2006) (holding that "the statutory requirement of an order of removal is satisfied when as here the IJ either orders removal or concludes that an alien is removable"); Solano-Chicas v. Gonzales, 440 F.3d 1050, 1053-54 (8th Cir.2006) (holding that the BIA's reversal of the IJ's cancellation of removal created a final order of removal); Nreka v. U.S Att'y Gen., 408 F.3d 1361, 1367 (11th Cir.2005) (finding jurisdiction over a BIA decision denying asylum despite absence of an express final order of removal because the denial of asylum is closely tied to removal), or even when the BIA has remanded for limited further proceedings, see, e.g., Yusupov v. Attorney General, 518 F.3d 185, 195-96 (3d Cir. 2008) (holding that BIA order affirming IJ's denials of asylum were final despite the fact that BIA also remanded to the IJ for the purpose of allowing DHS to complete identity and law enforcement investigations and entry of an order on that information pursuant to 8 C.F.R. § 1003.1(d)(6) and 8 C.F.R. § 1003.47(h) because the latter were "administrative matters" that "d[id] not affect the controlling removal determination"). Notwithstanding, the Attorney General contends that the statutory and regulatory scheme governing adjudication, enforcement, and judicial review in immigration proceedings compels the conclusion that there is as yet no final order in this case because removal proceedings are ongoing on remand to the IJ. The Attorney General reasons as follows: This court has jurisdiction only to review "a final order of removal," under 8 U.S.C. § 1252(a)(1); the Attorney General has ninety days to remove an alien once "an alien is ordered removed," and the "removal period" begins "[t]he date the order of removal becomes administratively final," 8 U.S.C. § 1231(a)(1)(B)(i), unless stayed by the Court of Appeals, id. § 1231(a)(1)(B)(ii); and under the statute and regulations governing voluntary departure, the immigration judge enters the removal order at the point that he grants or denies that relief. See 8 U.S.C. § 1229c(a) & (b); 8 C.F.R. § 1240.26. Therefore, there is no "final order of removal" until the Attorney General possesses the authority to execute it, and that authority does not exist until the immigration judge either grants or denies voluntary departure. We reject this reasoning. First of all, "order of [removal]" is defined in the disjunctive as "the order of the special inquiry officer ... concluding that the alien is [removable] or ordering [removal]." 8 U.S.C. § 1101(a)(47)(A); Lazo v. Gonzales, 462 F.3d 53, 54 (2d Cir.2006) (per curiam). "Accordingly, the statutory requirement of an order of removal is satisfied when ... the IJ either orders removal or concludes that an alien is removable." Id. See also Viracacha v. Mukasey, 518 F.3d 511, 513-14 (7th Cir.2008) ("There is a statutory answer to the question `how can a decision to withhold removal be a final order of removal?' A definitional clause in the statute says that an `order of deportation' ... means an order of the agency `concluding that the alien is deportable or ordering deportation.'" (quoting 8 U.S.C. § 1101(a)(47)(A))). See generally Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1146 (10th Cir.2007) (stating that "[i]f the IJ makes a finding of removability, that finding satisfies § 1101(a)(47)'s definition of an order of deportation"). An "order of [removal]" becomes "final" upon "a determination by the Board of Immigration Appeals affirming such order," or upon "the expiration of the period in which the alien is permitted to seek review of such order" by the BIA. 8 U.S.C. 614 § 1101(a)(47)(B)(i) & (ii). Here, the BIA's order reversing IJ's grant of withholding of removal to Colombia amounted to such an order because it left in place the IJ's order that Petitioners were removable and that they be removed in accordance with § 241(b). See Lazo, 462 F.3d at 54 (holding that statutory requirement for final order of removal was satisfied because the IJ found the petitioner was removable, and BIA's reversal of IJ's waiver from removability merely removed an impediment to the removal that was ordered by the IJ); cf. Madrigal v. Holder, 572 F.3d 239, 242 (6th Cir.2009) (holding that this court had jurisdiction to review the BIA's order automatically withdrawing the petitioner's administrative appeal because the BIA's withdrawal order gave final effect to the IJ's order denying the petitioner's request to reopen her case and to the IJ's removal order). Furthermore, because the IJ's decision regarding voluntary departure is not subject to judicial review, the BIA's order reversing the IJ's grant of withholding of removal is, in effect, a "final order." This is the basic reasoning underlying the cases outlined above, including our decision in Perkovic, which analyzed a previous version of the INA. There, this court held that a BIA order rejecting an asylum application may constitute a final order even if no formal order of removal has been issued. The petitioners had requested asylum and withholding. The IJ granted asylum but did not rule on the withholding issue. The BIA reversed the IJ's grant of asylum and remanded the case. The IJ later entered an order designating Yugoslavia as the destination of deportation and granted voluntary departure. The petitioners appealed the BIA's ruling. The INS contended there was no final order and therefore no jurisdiction in this court. We rejected the argument, explaining that: An "order of deportation" includes more than just the piece of paper authorizing the government to take custody of the alien and transport him beyond our frontiers. The term extends to any denial of discretionary relief during a deportation proceeding, where such relief, if granted, would foreclose deportation. Denials of applications for withholding of deportation or for asylum, like denials of applications for suspension of deportation, qualify as "order[s] of deportation" that may be judicially reviewed. INS v. Chadha, 462 U.S. 919, 937-39, 103 S.Ct. 2764, 2777-78, 77 L.Ed.2d 317 (1983); Foti v. INS, 375 U.S. 217, 222-31, 84 S.Ct. 306, 310-15, 11 L.Ed.2d 281 (1963); Carvajal-Munoz v. INS, 743 F.2d 562, 566-67 (7th Cir.1984). The Carvajal-Munoz case, which analyzes in detail Foti and Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968), squarely holds that denial of an asylum application is a reviewable "order of deportation." In this case, each issue presented to us has been the subject of a "final order of deportation." The immigration judge's order directing the deportation of the petitioners to Yugoslavia if they stayed beyond the period granted them for voluntary departure is "final," because the time allotted for an appeal to the Board has expired with no appeal having been taken. See 8 C.F.R. § 243.1. The Board order sustaining the INS appeal from the granting of asylum is likewise final. As "an order issued by the Board," it was "final as of the date of the Board's decision." Id. We are aware of no authority for the proposition that a Board order rejecting an asylum application is not a final order unless a formal order of deportation has already been issued. Perkovic, 33 F.3d at 618-19. See also Adesoya v. Att'y Gen., 186 Fed.Appx. 306, 615 309 (3rd Cir.2006) (noting that in Perkovic, the denial of relief essentially functioned as a removal order). In short, because all of the orders that "would foreclose [removal]" in this case have been presented to the BIA, and all that is remaining is the discretionary issue of voluntary departure, there is no bar to our exercise of jurisdiction at this time. The Attorney General also relies on 8 U.S.C. § 1252(b)(9), "known as the `zipper' clause because it consolidates or `zips' judicial review of immigration proceedings into one action in the court of appeals." Morales-Izquierdo v. DHS, 600 F.3d 1076, 1082 (9th Cir.2010) (citation and internal quotation marks omitted). See also INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (stating that "[w]e have previously described § 1252(b)(9) as a `zipper clause' ... [whose] purpose is to consolidate `judicial review' of immigration proceedings into one action in the court of appeals," and noting that it applies only to review of orders of removal under subsection (a)(1) of § 1252); Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 482-83, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (describing in dictum § 1252(b)(9) as a "general jurisdictional limitation" and as an "unmistakable `zipper' clause").[6] This reliance is misplaced because it presupposes judicially reviewable orders. As noted, the discretionary grant or denial of voluntary departure is not such an order. But see Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006) (noting that while our jurisdiction is limited with respect to voluntary departure determinations under § 1252(a)(B)(i), where voluntary departure raises a constitutional or legal question, we retain jurisdiction, pursuant to § 1252(d)). Finally, the Attorney General also argues that our decision "is informed if not controlled by" the Supreme Court's longstanding decision in Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). This reliance is misplaced. In Foti, the petitioner conceded deportability and sought two forms of discretionary relief: suspension of deportation, and in the alternative, voluntary departure. The IJ denied suspension of deportation but granted voluntary departure. The petitioner appealed to the BIA and filed an action in federal district court. The district court dismissed the action on the ground that under § 106(a) of the INA, 8 U.S.C. § 1105a(a) (the predecessor of § 1252), the exclusive procedure for obtaining judicial review was the appropriate federal court of appeals. The Second Circuit en banc court dismissed the petition for lack of jurisdiction, holding that term "final orders of deportation" in § 106(a) did not include a denial of discretionary relief under § 244(a)(5), the provision governing suspension of deportation. The Supreme Court granted certiorari to resolve a conflict among the circuits regarding the interpretation of the jurisdictional language in § 106(a): "Specifically, we must decide a rather narrow question of statutory construction whether a refusal by the Attorney General to grant a suspension of deportation is one of those `final orders of deportation' of which direct review by Courts of Appeals is authorized under § 106(a) of the Act." Foti, 375 U.S. at 221, 84 S.Ct. 306. The Court concluded that the term "final orders of deportation" was not limited to adjudications of deportability, but included discretionary determinations by the Attorney General such as the 616 refusal to grant a suspension of deportation. Id. at 222-28, 84 S.Ct. 306. The Court also stated in dictum that "it seems rather clear that all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals, such as orders denying voluntary departure ... and orders denying the withholding of deportation... are likewise included within the ambit of the exclusive jurisdiction of the Courts of Appeals under § 106(a)." Id. at 230, 84 S.Ct. 306. First, the Supreme Court's comments concerning orders denying voluntary departure were dictum, because the IJ's decision regarding voluntary departure in Foti was not at issue. Second, § 106 of the INA was replaced by § 1252 of the IIRIRA. Ngarurih v. Ashcroft, 371 F.3d 182, 192 (4th Cir.2004). The IIRIRA expressly abolished our authority to review discretionary grants and denials of voluntary departure. Id. at 193. Thus, Foti does not support the Attorney General's argument in this case. Cf. Chupina v. Holder, 570 F.3d 99, 103 (2d Cir.2009) (holding that Foti "strongly counsel[ed]" that the petitioner's order of removal was not a final order of removal where the BIA order affirmed the IJ's denial of the petitioner's application for asylum, but remanded the alien's applications for withholding of removal and relief under CAT, because IJ's decisions on these applications would directly affect his removability); Mahecha-Granados v. Holder, 324 Fed.Appx. 735, 737-39 (10th Cir.2009) (holding that the court of appeals lacked jurisdiction to review the BIA's order reversing the grant of asylum and remanding because the IJ had before him claims seeking other "impediments" to the alien's removal; distinguishing Del Pilar, Saldarriaga, Castrejon-Garcia, and Yusupov on grounds that "none involved consideration of additional claims for relief from removal," and "the issues to be considered on remand could not affect the controlling removal determinations"). In sum, we conclude that we have jurisdiction to review the BIA's order denying withholding of removal. B. Prudential Concerns Having concluded that we have jurisdiction to review the BIA's order, we nonetheless decline to exercise that jurisdiction for prudential reasons, in light of the recent amendment to the voluntary departure regulation that took effect on January 20, 2009.[7] It provides in relevant part that: 617 [i]f, prior to departing the United States, the alien files a petition for review pursuant to section 242 of the Act (8 U.S.C. 1252) or any other judicial challenge to the administratively final order, any grant of voluntary departure shall terminate automatically upon the filing of the petition or other judicial challenge and the alternate order of removal entered pursuant to paragraph (d) of this section shall immediately take effect. 8 C.F.R. § 1240.26(i) (emphasis added).[8]See also 8 C.F.R. § 1240.26(f) (dealing with "[e]xtensions of time to depart"; stating that "the filing of a petition for review has the effect of automatically terminating the grant of voluntary departure, and accordingly also does not toll, stay, or extend the period allowed for voluntary departure"). Thus, under the amended regulation, a grant of voluntary departure on or after January 20, 2009, automatically terminates with the filing of a petition for review. 8 C.F.R. § 1240.26(i). "On its face, the current voluntary departure regulation reflects the Attorney General's intention to limit a petitioner's eligibility for voluntary departure where the petition has sought judicial review, and to ensure uniformity in the administration of the immigration laws." Hakim v. Holder, 611 F.3d 73, 79 (1st Cir.2010). It has "thus altered the decision-making process for a petitioner interested in seeking judicial review" because now she "must elect either voluntary departure or judicial review of her petition." Id.; see also Patel v. Att'y Gen., 619 F.3d 230 (3rd Cir.2010) (holding that under the new voluntary departure guideline, 8 C.F.R. § 1240.26(h), the alien's voluntary departure terminated upon her filing of a petition for review). *618 Hakim dealt with a situation similar to this case. There, as here, the petitioner filed a petition for judicial review before the IJ determined his eligibility for voluntary departure. Hakim, 611 F.3d at 79. As the Hakim court observed, the new voluntary departure regulation does not directly address this scenario because "[t]he automatic termination provision of the current regulation assumes a chronological order, i.e., that the grant of voluntary departure precedes the filing of a petition for judicial review." Hakim, 611 F.3d at 79. Noting that a number of its sister circuits have held that a BIA order denying relief from removal and remanding for consideration of voluntary departure is a final order of removal, id. at 77-78, 79 n. 4, the Hakim court assumed jurisdiction for the sake of argument, but declined to exercise it for prudential reasons. "By exercising jurisdiction in this case, we would be permitting Hakim to circumvent the regulation by allowing him to seek both voluntary departure and judicial review, thus hindering judicial economy and denying the government the benefit of `a prompt and costless departure.'" Id. at 79. "To prevent such a result," the court thought "it wiser, for prudential reasons, to remand the case to the IJ" to allow the IJ to decide whether to grant Hakim voluntary departure. Id. It therefore dismissed, without prejudice, the petition seeking review of the BIA's determination that he was not eligible for asylum or withholding of removal. Id. We likewise think it more prudent to decline to exercise jurisdiction at this time. If Petitioners are granted voluntary departure, they "can at that point decide whether to comply with the relevant departure provisions, 8 U.S.C. § 1229c(b), or else to file a petition for judicial review" of their application for withholding of removal. See id. III. Conclusion For the foregoing reasons, the petition for review of the BIA's denial of removal of withholding is DISMISSED without prejudice. NOTES [1] An application for asylum must be filed within one year of the alien's arrival or it is untimely. See 8 U.S.C. § 1158(a)(2)(B) & (D). However, that time limit does not apply to applications for withholding of removal, which are adjudicated by IJs in removal proceedings. 8 C.F.R. §§ 1208.4(a), 1208.16(a). [2] Petitioners did not cross appeal the denial of asylum or relief under CAT, and do not challenge those decisions on review. [3] An IJ is a "special inquiry officer." 8 C.F.R. § 3.0 (noting that "immigration judges" are "referred to in some regulations as special inquiry officers"). [4] "`Deportable' is synonymous with `removable.'" Rhodes-Bradford v. Keisler, 507 F.3d 77, 79 (2d Cir.2007) (citation omitted). Prior to 1996, the relevant proceedings were called "deportation" proceedings. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996), changed the terminology. See Morales-Izquierdo v. DHS, 600 F.3d 1076, 1079 n. 2 (9th Cir.2010). [5] The jurisdiction-stripping provisions are not absolute; § 1252(a)(2)(D) restores jurisdiction to circuit courts to review constitutional claims and questions of law raised in a petition for review of a removal order. 8 U.S.C. § 1252(a)(2)(D); Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006). See also Serrato-Soto v. Holder, 570 F.3d 686, 689 (6th Cir. 2009) (holding that this court had jurisdiction to review the BIA's denial of the alien's application for voluntary departure because it presented a question of law). [6] As one treatise has observed, "[t]he precise scope and meaning of INA § 242(b)(9) ... remains to be determined." 8 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, 8 Immigration Law and Procedure, § 104.13[4][d][xi] (Matthew Bender, Rev. Ed. 2011). [7] Prior to the amendment, voluntary departure automatically withdrew an alien's motion to reopen, and if the alien overstayed the departure date, she would be subject to penalties. Thus, the alien was forced to choose between departing and foregoing her motion to reopen, or staying in the United States and incurring penalties for failing to timely depart. Patel v. Attorney General, 619 F.3d 230, 234 n. 4 (3d Cir.2010). Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008), preceded the amendment. In Dada, the BIA affirmed an immigration judge's grant of voluntary departure, ordering Dada to depart within thirty days. Before the end of that period, Dada sought to withdraw his voluntary departure request and filed a timely motion to reopen removal proceedings. After the voluntary departure period expired, the BIA denied Dada's request, holding that an alien who has been granted voluntary departure but does not depart within the voluntary departure period is statutorily barred from receiving a status adjustment. The Supreme Court reversed and remanded, holding that "to safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen." Id. at 21, 128 S.Ct. 2307. As the Patel court observed: Section 1240.26 thus eliminates one of the Dada Court's primary concerns, i.e., that an alien who fails to timely depart in order to pursue a motion to reopen would be subject to penalties. By automatically terminating a grant of voluntary departure upon the filing of a motion to reopen or a petition for review, the regulation at issue protects an alien from penalties for failure to depart within the allotted period. Patel, 619 F.3d at 234 n. 5. As the Patel court also noted, under 8 C.F.R. § 1240.26(i), an alien does not necessarily lose the right to file a petition for review. If she departs voluntarily within 30 days of filing a petition for review and provides proof that she remains outside of the United States, she will not be deemed to have departed under an order of removal and therefore can pursue her petition for review. Id. [8] 8 C.F.R. § 1240.26(i), took effect on January 20, 2009 and states, in full: (i) Effect of filing a petition for review. If, prior to departing the United States, the alien files a petition for review pursuant to section 242 of the Act (8 U.S.C. 1252) or any other judicial challenge to the administratively final order, any grant of voluntary departure shall terminate automatically upon the filing of the petition or other judicial challenge and the alternate order of removal entered pursuant to paragraph (d) of this section shall immediately take effect, except that an alien granted the privilege of voluntary departure under 8 C.F.R. 1240.26(c) will not be deemed to have departed under an order of removal if the alien departs the United States no later than 30 days following the filing of a petition for review, provides to DHS such evidence of his or her departure as the ICE Field Office Director may require, and provides evidence DHS deems sufficient that he or she remains outside of the United States. The Board shall advise the alien of the condition provided in this paragraph in writing if it reinstates the immigration judge's grant of voluntary departure.... Since the grant of voluntary departure is terminated by the filing of the petition for review, the alien will be subject to the alternate order of removal, but the penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply to an alien who files a petition for review, and who remains in the United States while the petition for review is pending.	{ "pile_set_name": "FreeLaw" }
544 U.S. 935 BLACKv.UNITED STATES. No. 04-8672. Supreme Court of United States. March 21, 2005. 1 C. A. 11th Cir. Certiorari denied. Reported below: 125 Fed. Appx. 976.	{ "pile_set_name": "FreeLaw" }
464 F.Supp.2d 751 (2006) Akeem ALEXANDER, Jerry Alexander, and Susie Alexander, Plaintiffs, v. KAPPA ALPHA PSI FRATERNITY, INC., et al., Defendants. No. 3:05-0651. United States District Court, M.D. Tennessee, Nashville Division. November 29, 2006. 752 James B. Johnson, Samuel Flint Miller, Stites & Harbison, PLLC, Nashville, TN, for Plaintiffs. William Bryan Jakes, III, Howell & Fisher, Nashville, TN, Jade Rogers Maberry, McClellan, Powers, Ehmling & Dix, Gallatin, TN, for Defendants. Javier Matlock, Nashville, TN, pro se. James Hayes, Memphis, TN, pro se. Leroy Webster, Nashville, TN, pro se. MEMORANDUM TRAUGER, District Judge. Pending before the court are the Motions for Summary Judgment filed by the defendants, Kappa Alpha Psi Fraternity, Inc. ("Kappa") and Prentice "Jerry" Siegel ("Siegel") (Docket No. 48), as well as by the Nashville Alumni Chapter of Kappa Alpha Psi ("Alumni Chapter") (Docket No. 52). The plaintiffs have responded to these motions (Docket No. 57), and the defendants have replied (Docket No. 61).[1] For the reasons discussed herein, the defendants' motions will be denied in part and granted in part. 753 FACTS AND PROCEDURAL HISTORY Kappa is a national college fraternity that charters local chapters and approves for admission into those chapters undergraduates and alumni members.[2] In August 2003, Kappa member Sir Osei Smith met Javier Matlock. Matlock was wearing Kappa paraphernalia and told Smith that he had been inducted into Kappa in the spring of that year. Because Smith himself had been inducted at that time, during a process for which Matlock was not present, Smith came to believe that Matlock was a "perpetrator," i.e., someone who "pretend[s] that [he is] within an organization, but in actuality, [he is not]." (See Docket No. 62 at 11.) According to the plaintiffs, Matlock's status as a potential perpetrator alerted Smith to the possibility of an underground pledging program at Fisk University, the school where Matlock was enrolled. Kappa has forbidden underground pledging, and the plaintiffs claim that it qualifies as hazing. Pursuant to his Kappa-required duty to report "knowledge or suspected knowledge of hazing or underground pledging," Smith contacted Randall Madison, who was Senior Vice Province Polemarch and chairman of the Advisors Committee of Kappa's South Central Region. (See id. ¶ 21.) Madison, in turn, spoke to Siegel, who, as Province Polemarch for the same region, was responsible for all Kappa chapters within Kentucky, Tennessee, and northern Mississippi. Siegel then contacted Jim Murrell, a member of Kappa's Nashville Alumni Chapter, and asked him to investigate whether underground pledging was taking place at Kappa's Fisk chapter. The plaintiffs maintain that Murrell, who was never trained in how to investigate allegations of hazing or underground pledging, conducted only a "cursory" examination of the activities at Kappa's Fisk chapter. (See Docket No. 62 ¶ 35.) Murrell ultimately reported to Siegel that he "couldn't find out anything." (See id. ¶ 41.) In December 2003, Smith noticed Matlock at Kappa's regularly scheduled initiation program. Smith personally notified Siegel that Matlock was the alleged perpetrator whom Smith had reported earlier that year. According to the plaintiffs, "Siegel basically told Smith that there was nothing that could be done at that time." See id ¶ 44.) Three hours later, Siegel initiated Matlock into Kappa. In September 2004, nineteen year-old Akeem Alexander, who is one of the plaintiffs in this case, began the process of joining Kappa's Fisk chapter via an underground pledge program that was led by Matlock. As an underground pledge, Alexander was ordered to procure food and alcohol for initiated Kappa members and made to do chores on their behalf. He was, also required to submit to physical hazing sessions each night. Among other things, these sessions included beatings with a cane and a paddle. They sometimes lasted as long as three and one-half hours. The plaintiffs claim that Alexander was told that he would be subjected to public humiliation if he quit the underground pledge process and that quitting would mean that the other pledges would have to endure more abuse. On September 13, 2004, a particularly violent hazing session left a deep laceration 754 on Alexander's right buttocks and caused him a number of other injuries. He vomited three times the next day. Alexander informed Matlock of the vomiting and the laceration when he reported for the September 14 hazing session, but, regardless, he was paddled and beat with a cane that night. Alexander was still vomiting on September 15 when he had a friend drive him to the emergency room at Baptist Hospital. The doctors there diagnosed him with dehydration and severe lacerations of the buttocks. He remained hospitalized for five days, during which time Kappa members telephoned him with warnings not to reveal the source of his injuries. The plaintiffs claim that, as a result of the hazing that Alexander endured, he was forced to withdraw from Fisk and drop the seventeen credit hours he was taking. Prior to the hazing, Alexander had maintained a 3.5 grade-point average. That average dropped below 3.3 "due to his injuries and hospitalization," which resulted in the loss of his full scholarship to Fisk. (See Docket No. 1 ¶ 58.) All parties here recognize that Kappa has long-standing and explicit prohibitions against hazing. In particular, Kappa forbids the initiation of any pledge who has participated in an underground pledge process, and it requires the expulsion of any Kappa member who hazes others. ANALYSIS I. A genuine issue of material fact exists as to whether the defendants had a duty to prevent hazing-related injuries and whether the comparative negligence doctrine should bar the plaintiffs from recovery, but no such issue exists as to whether the plaintiffs are entitled to punitive damages. The defendants have moved for summary judgment on their claims that they had no duty to prevent hazing-related injuries, that the doctrine of comparative negligence should bar the plaintiffs from recovery, and that punitive damages are inappropriate in this case. For the reasons discussed below, summary judgment will be denied on the first two claims and granted on the third. A. Summary Judgment Standard Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). To prevail, the moving party must meet the burden of proving the absence of a genuine issue of material fact as to an essential element of the opposing party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir.2001). In determining whether the moving party has met its burden, the court must view the factual evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). "The court's function is not to weigh the evidence and determine the truth of the matters asserted, `but to determine whether there is a genuine issue for trial.'" Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). 755 If the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which she has the burden, however, the moving party is entitled to summary judgment as a matter of law. See Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir.1999). To preclude summary judgment, the nonmoving party "must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial." Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir.2002). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Shah v. Racetrac Petroleum Co., 338 F.3d 557, 566 (6th Cir.2003) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). If the evidence offered by the nonmoving party is "merely colorable," or "not significantly probative," or not enough to lead a fair-minded jury to find for the nonmoving party, the motion for summary judgment should be granted. Anderson, 477 U.S. at 249-52, 106 S.Ct. 2505. "A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Hill v. White, 190 F.3d 427, 430 (6th Cir.1999) (citing Anderson, 477 U.S. at 247-49, 106 S.Ct. 2505). With this standard in mind, the court turns to an analysis of the defendants' motions for summary judgment. B. A genuine issue of material fact exists as to whether the defendants had a duty to prevent hazing-related injuries. As a preliminary matter, the court notes that the defendants base their motions for summary judgment primarily on their assertion that they had no duty to the plaintiffs. (See, e.g., Docket No. 49 at 7). The defendants do not indicate, however, which of the plaintiffs' many claims require a showing of duty. Duty is not an element of every claim that the plaintiffs have asserted. (See, e.g., Docket No. 1 at 21 (listing claims for battery and assault, which do not require a showing of duty).) Because a genuine issue of material fact exists as to whether the defendants owed a duty to the plaintiffs, the court need not determine which claims would fail absent a showing of duty. The parties did not cite and the court's research did not reveal any Tennessee precedent that addresses the duty of a fraternity's national headquarters to prevent hazing-related injuries to putative members who are pledging the fraternity ("pledges"). Courts outside this jurisdiction, however, recognize a distinction between headquarters that knew that hazing was taking place at the chapter where the injury occurred and those that did not. For instance, the Supreme Court of Delaware upheld a jury's determination that a fraternity's national headquarters was not responsible for a pledge's hazing-related injury, where the chapter that conducted the hazing had recently certified to its headquarters that it did not haze and the headquarters was not in a position to know otherwise. See Furek v. Univ. of Del., 594 A.2d 506, 514 (Del.1991). Similarly, the Court of Appeal of Louisiana held that a fraternity's national headquarters had no duty to prevent hazing-related injuries to a pledge where the headquarters had no knowledge that hazing was occurring at the chapter in question and that chapter had endeavored to keep such activity a secret. See Walker v. Phi Beta Sigma Fraternity, 706 So.2d 525, 529-30 (La.Ct. App.1997). In contrast, two courts have found specifically that Kappa's national headquarters knew that hazing was taking place at particular chapters and, therefore, had a duty to protect the Kappa pledges in those 756 chapters from related injuries. See Edwards v. Kappa Alpha PSI Fraternity, No. 98-C-1755, 1999 WL 1069100, at 7 (N.D.Ill. Nov.18, 1999); Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105, 1118-19 (La.Ct.App.1999). In Edwards, the United States District Court for the Northern District of Illinois denied Kappa's motion for summary judgment on its claim that it had no duty to guard against the hazing of its pledges where a pledge sued the fraternity for injuries that he sustained during an underground pledge process. See Edwards, 1999 WL 1069100, at 2, 7. In doing so, that court pointed to evidence that Kappa had failed to' enforce its anti-hazing policies, even after it had been notified by the pledge that hazing was taking place. See id. at 5. Additionally, the Court of Appeal of Louisiana upheld a jury's determination that Kappa was responsible for hazing injuries caused to a pledge where "Kappa National was aware of prior hazing activity at [a particular Kappa chapter] and knew that their measures designed to protect against and prevent hazing did no such thing." See Morrison, 738 So.2d at 1118. Both of these courts also noted that Kappa controlled the process by which new members joined its chapters and, as such, "may have possessed some control over its local members. . . ."[3]See Edwards, 1999 WL 1069100, at 6; see also Morrison, 738 So.2d at 1118 (discussing testimony that Kappa "is, in a sense, responsible for all that goes on in its chapters, as it has the right to control intake, expel or suspend members, and revoke charters"). As in Edwards and Morrison, evidence in this case creates a genuine issue of material fact as to whether Kappa knew that hazing was taking place at its Fisk University chapter. Specifically, the defendants acknowledge that Siegel received information about the existence of an alleged "perpetrator," i.e., someone who had not gone through approved channels in becoming a Kappa member, yet was claiming to be one and was wearing a Kappa jersey. The defendants seem to have been aware that this "perpetrator" may have joined Kappa via an underground pledge process because Siegel asked Murrell to investigate whether such pledging was occurring at Fisk. While the parties disagree about whether underground pledging qualifies as hazing, they both recognize that it is a forbidden practice done "in the darkness to defy its detection by those who are there to attempt to see them do things that are correct and approved and in an appropriate way." (See Docket No. 62 at 7.) As seen in other cases, underground pledging and hazing often go hand in hand. See Edwards, 1999 WL 1069100, at 2, 6; Morrison, 738 So.2d at 1119. Given this information, a reasonable jury could conclude that Kappa was on notice that hazing may have been occurring at its Fisk chapter. As such, Kappa had a duty to prevent hazing-related injuries from taking place there. If Kappa had a duty to prevent such injuries, a reasonable jury could also conclude that it breached it. The Edwards court came to the same conclusion, based on evidence that Kappa, when faced with allegations of underground pledging and related hazing at one of its chapters, failed to adequately investigate. See Edwards, 1999 WL 1069100, at "5. Here, 757 Kappa delegated the task of investigating the alleged underground pledging to someone who it admits "was never trained in how to investigate allegations of hazing or underground pledging." (See Docket No. 62 ¶ 36.) Accordingly, a genuine issue of material fact exists as to whether Kappa breached its duty to prevent hazing-related injuries. Accordingly, summary judgment on the defendants' claim that they had no duty to the plaintiffs must be denied. C. A genuine issue of material fact exists as to whether the plaintiffs are entitled to damages under Tennessee's comparative negligence doctrine. The defendants have moved for summary judgment on their claim that the plaintiffs should not be able to recover damages because "Akeem Alexander's fault admittedly was equal to or greater than any of the defendants[']." (See Docket No. 49 at 11.) Under Tennessee law, a plaintiff is entitled to recover damages as long as his fault is less than the "combined fault of all tortfeasors." See McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn.1992). In other words, the plaintiffs here may recover damages as long as less than fifty percent of the fault for Akeem Alexander's injuries is attributed to Alexander himself. See id. The defendants assert that Alexander's fault is equal to or greater than that of the defendants because he was warned about the "rough" nature of underground pledging and knew that he could quit the process at any time. (See Docket No. 49 at 12.) The plaintiffs argue that Alexander was unaware of the true nature of underground pledging and had been threatened with public humiliation and punishment to the remaining pledges were he to quit. (See Docket No. 57 at 20.) Courts outside of Tennessee have apportioned fault in similar cases in a variety of ways. For instance, in Morrison, the court upheld a jury's equal distribution of fault for a pledge's hazing-related injuries among Kappa National, the university that housed the Kappa chapter in question, and the Kappa member who inflicted the pledge's injuries. See Morrison, 738 So.2d at 1120. In Furek, the court rejected a defendant university's motion for a directed verdict on its claim that the plaintiff pledge's negligence contributed to his injuries such that he could not recover damages for injuries caused during hazing. See Furek, 594 A.2d at 523. Notably, neither court allocated any fault to the pledge who was hazed. While a definitive finding of fault is inappropriate at this stage of the proceedings, a reasonable jury could certainly label as less than fifty percent Mr. Alexander's portion of the fault for his injuries. Accordingly, summary judgment on this claim will be denied. See McIntyre, 833 S.W.2d at 58. D. Summary judgment will be granted in favor of the defendants on the plaintiffs' claims that punitive damages are appropriate in this case. Finally, the three defendants here have moved for summary judgment on the plaintiffs' claims that they are entitled to punitive damages. (See Docket No. 49 at 13.) In Tennessee, a court may award punitive damages "only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly." See Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn.1992). Here, the plaintiffs claim that the defendants "acted with recklessness" when Kappa National, "by and through Jerry Siegel, acted with reckless disregard for the rights of the plaintiff when they refused 758 to investigate Javier Matlock in December 2003 and decided to initiate him into the Kappa Alpha Psi Fraternity in direct contravention of its policies." (See Docket No. 57 at 21-22.) A person acts recklessly when he "is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances." See Hodges, 833 S.W.2d at 901. Two courts outside of Tennessee have determined that the plaintiffs in hazing-related cases were not entitled to punitive damages. In Furek, 594 A.2d at 523, the Supreme Court of Delaware found that, while a university defendant "might be faulted in terms of its failure to exercise greater control over a known hazardous activity [i.e., hazing] . . . its response, which a jury could deem ineffectual, was, nonetheless, well-intentioned and not characterized by a conscious disregard of a known risk." Similarly, the United States District Court for the Northern District of Illinois found "no evidence that suggests that Kappa acted in wanton disregard for the rights of others" when it failed to investigate a pledge's allegation of hazing and instead instructed the pledge to contact someone else about his complaints. See Edwards, 1999 WL 1069100, at 3, 5. As in the cases above, a jury could not reasonably find here that the defendants' actions evince recklessness. Viewing the facts in the light most favorable to the plaintiffs, the defendants, at worst, delegated the investigation of alleged underground pledging to an untrained Kappa alumnus and initiated into Kappa someone who had been identified as a possible perpetrator. These actions, while certainly not ideal, do not reveal Kappa's reckless disregard of the risk of hazing. Indeed, Kappa took steps to investigate the potentially forbidden activity taking place in its Fisk chapter. While these steps may have been ineffectual, no genuine issue of material fact exists as to whether they qualify as a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. See Hodges, 833 S.W.2d at 901; Furek, 594 A.2d at 523. As such, the defendants' motion for summary judgment on this claim will be granted. CONCLUSION Genuine issues of material fact exist as to whether the defendants had a duty to prevent hazing-related injuries and whether the comparative negligence doctrine should bar the plaintiffs from recovery. The defendants have, however, demonstrated that no jury could reasonably find that punitive damages are appropriate in this case. As such, summary judgment will be denied on the first two claims and granted on the third. An appropriate order will enter. NOTES [1] Rather than filing its own response or other supporting materials, the Alumni Chapter relies on those of Kappa and Siegel. (See Docket No. 52 at 1.) [2] Unless otherwise noted, the facts have been drawn from the plaintiffs' Complaint (Docket No. 1) and their Response to [the Defendant's] Statement of Undisputed Facts (Docket No. 59), as well from the Response of Defendants Kappa Alpha Psi Fraternity, Inc. and Prentice "Jerry" Siegel to Plaintiffs' "Additional Statement of Material Facts" (Docket No. 62). [3] The Alumni Chapter may have a stronger argument as to its lack of duty to the plaintiffs because, unlike the other defendants here, it has no apparent ability to control Kappa's pledge intake process. However, the Alumni Chapter, in relying on the other defendants' supporting materials, has not advanced any such argument and, therefore, has not met its burden of proof on this issue.	{ "pile_set_name": "FreeLaw" }
425 So.2d 511 (1982) William Barry HOBSON v. STATE. 2 Div. 319. Court of Criminal Appeals of Alabama. July 27, 1982. Rehearing Denied October 12, 1982. Certiorari Denied January 28, 1983. 512 Edwin L. Yates, Montgomery, for appellant. Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for the State. Alabama Supreme Court 82-42. HARRIS, Presiding Judge. This is a consolidated appeal by an indigent from the denial of his petitions for writ of habeas corpus and writ of error coram nobis to review eleven previous felony convictions. In 1978, appellant entered guilty pleas to nine indictments in Perry County for the offenses of robbery, burglary and escape. At the time, he retained Mr. O.S. Burke of Marion, Alabama to represent him. That same year, appellant also pleaded guilty to two Dallas County indictments for robbery. Mr. Burke was not his attorney of record for the Dallas County cases, but he helped to negotiate an agreement between the district attorneys of both counties for concurrent sentences totalling forty years in all cases. Appellant was subsequently sentenced to forty years and sent to Draper Correctional Center in Elmore County. He did not appeal any of the convictions. On September 4, 1981, appellant filed pro se habeas corpus and coram nobis petitions in Perry Circuit Court attacking all eleven convictions. The petitions, including those arising out of the Dallas County convictions, were consolidated for a hearing on October 2, 1981, in Perry Circuit Court, by agreement of the parties. The court appointed counsel to represent appellant at the hearing, but the attorney withdrew shortly before the date set and the court named another lawyer, Mr. Larry Leonard of Linden, Alabama, some three hours prior to the hearing. Appellant's petitions claimed, in essence, that he was "intimidated and coerced" by his first lawyer into pleading guilty by being told that unless he agreed to the proposed 513 forty-year concurrent sentences, he would undoubtedly be tried separately, convicted and sentenced consecutively for all eleven offenses. Appellant's petitions also maintained that his attorney was incompetent because he neglected to investigate the cases, failed to discover flaws in the indictments or arrest warrants, and did not inform him of possible defenses to the charges. At the hearing, the State introduced a letter from the appellant to his attorney stating, in substance, that appellant agreed to the negotiated pleas and forty-year sentence and was satisfied with the representation provided by his lawyer.[1] Mr. Burke testified that he composed and typed the letter and then discussed it with the appellant. Appellant read and signed it in the presence of his father, who also signed as a witness. Appellant acknowledged at the hearing that he had read and signed the letter, but he stated that when he did so he did not know the meaning of the word "coerced" in the sentence "The decision to plead guilty was my decision and I was not coersed [sic] or pressured to enter this plea by anyone, including you and my father." The trial judge denied all the petitions and the appellant appealed, now claiming that he was not afforded the effective assistance of counsel by his second attorney, the one who represented him at the hearing on his petitions. Appellant's petitions for writ of habeas corpus were correctly denied, first, because they were not filed in the proper circuit, and second, because they established no basis for relief under the writ. A petition for writ of habeas corpus by a state penitentiary inmate should be addressed to the nearest circuit judge, Ex Parte Goodwin, 283 Ala. 61, 214 So.2d 415 (1968); Ala. Code § 15-21-6 (1975), rather than to the court where the original conviction occurred. In addition, neither the alleged ineffectiveness of counsel nor the claimed involuntariness of a guilty plea entitles a petitioner to habeas corpus relief. See Argo v. State, 41 Ala.App. 347, 133 So.2d 201, cert. denied, 272 Ala. 699,133 So.2d 203 (1961); Ala.Code § 15-21-24 (1975). In our judgment, appellant's coram nobis petitions were also properly denied. Appellant offered no evidence to substantiate his allegation that he was intimidated into pleading guilty. Aside from his unfamiliarity with the single word "coerced," his testimony indicates that he was aware of the import of the remainder of the letter he signed. Furthermore, appellant's attorney testified that before appellant's pleas were received by the court, he (Mr. Burke) fully explained the contents of an Ireland form, See Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), to appellant and the judge conducted a full colloquy with appellant concerning the voluntariness of the pleas. Although the record before us contains neither the Ireland form nor the transcript of the colloquy on the guilty pleas, appellant offered no proof to dispute the existence or sufficiency of either. Appellant also failed to carry the burden of proving that his first counsel was ineffective. In addition to the fact that appellant's signature on the letter acknowledged his satisfaction with the job his attorney had performed, the testimony of appellant's own witnesses undermined his assertion that counsel had neglected to investigate the cases or find defects in the indictments. In short, appellant established absolutely no proof that counsel had not ably represented him. See Clark v. State, 396 So.2d 1083 (Ala.Crim.App.1981). Moreover, we do not believe that appellant was denied the effective assistance of counsel at his coram nobis hearing. Initially we note that, even though a coram nobis petition seeks relief from a criminal judgment, it is a civil proceeding, Ex Parte Wilson, 275 Ala. 439, 155 So.2d 611 (1963), and an indigent petitioner is not entitled to appointed counsel as a 514 matter of right. See Ala.Code § 15-12-23(a) (1975). The Sixth Amendment right to counsel does not guarantee the representation by an attorney to a criminal defendant beyond the first level of appellate review, Martin v. State, 277 Ala. 153, 167 So.2d 912 (1964); Juelich v. United States, 342 F.2d 29 (5th Cir.1965). Generally, the decision whether to appoint counsel in a collateral procedure, such as a coram nobis petition, is discretionary, see Ex Parte Lott, 42 Ala.App. 484,168 So.2d 265 (1964), and derives from the Due Process Clause rather than the Sixth Amendment. See United States v. Barnes, 662 F.2d 777, 780 (D.C.Cir.1980); Vandenades v. United States, 523 F.2d 1220 (5th Cir.1975); Cates v. Ciccone, 422 F.2d 926 (8th Cir.1970). Appellant contends that because his counsel was named to represent him only three hours prior to the coram nobis hearing, and admitted to the trial judge that he was not fully versed in the facts of the case, appellant was denied the effective assistance of counsel. He also claims that counsel called witnesses whose testimony proved adverse to him, and failed to object to the statement (made by his first attorney) that appellant had admitted his guilt of all eleven offenses. In our judgment, the allegations in appellant's petitions were so patently without merit and so directly refuted by the letter appellant himself had signed some three years earlier that they did not require extensive preparation by counsel. Three hours was not unreasonable. See Burton v. State, 43 Ala.App. 249,187 So.2d 808 (1966). Furthermore, the fact that the testimony of appellant's witnesses proved detrimental to him does not establish counsel's inadequacy any more than does the fact a defendant is convicted prove his lawyer lacked competence. See Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966). Appellant claims that it was a violation of the attorney-client privilege, outlined in § 12-21-161 of the Code of Alabama 1975, to allow his first attorney to testify that appellant admitted his guilt of the eleven offenses. He claims that this testimony undermined his entire coram nobis petition since an allegation of innocence or the existence of a valid defense is necessary to the petition. We note, first, that the attorney-client privilege set out in § 12-21-161, supra, does not apply where the answer is a matter of public record, International Brotherhood of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971), and here appellant's pleas of guilty were already recorded acknowledgements of his lack of innocence. Next, when a coram nobis petition asserts the denial of effective counsel, it is not necessary to allege that the petitioner is innocent or has a valid defense, Summers v. State, 366 So.2d 336 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346 (Ala.1979), so that the attorney's answer was in no way fatal to appellant's petition. There is no error in the record. The orders of the Perry Circuit Court denying the petitions are affirmed. AFFIRMED. All the Judges concur. EXHIBIT "A" APPENDIX I Barry Hobson Perry County Jail Marion, Alabama 36756 February 27, 1978 Mr. O.S. Burke, Jr. Attorney at Law Marion, Alabama 36756 Re: State of Alabama Vs. Barry Hobson 78-09 Robbery 78-08 Burglary, 1st degree 78-07 Burglary, 2nd degree 77-53 Burglary, 2nd degree Robbery, Dallas County 78-06 Escape, Perry County Dear Mr. Burke: I am aware of the fact that the D.A. has offered to settle all pending cases in both 515 Dallas County and Perry County for a total term of 40 years. Sentences in the various cases will vary in length, but all will run concurrently. I have talked this offer over with my father as well as with you, and I feel that I should accept the D.A.'s offer. You have represented me over a long period of time and I feel that you have done everything that any lawyer could do for a client under these circumstances, and I am completely satisfied with the manner in which you have represented me. I am completely satisfied with the settlement worked out with the D.A. and I feel that I have been dealt with fairly by all concerned. The decision to plead guilty was my decision and I was not coersed or pressured to enter this plea by anyone, including you and my father. Thank you, /s/ William Barry Hobson /s/ Luther Hobson William Barry Hobson Witness, Luther Hobson NOTES [1] Attached hereto as Appendix I.	{ "pile_set_name": "FreeLaw" }
276 U.S. 97 (1928) DENNEY, AS DIRECTOR OF PUBLIC WORKS OF WASHINGTON, ET AL., v. PACIFIC TELEPHONE & TELEGRAPH COMPANY. SAME v. HOME TELEPHONE & TELEGRAPH COMPANY. Nos. 150 and 151. Supreme Court of United States. Argued January 9, 1928. Decided February 20, 1928. APPEALS FROM UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON. 98 Messrs. John H. Dunbar and Arthur Schramm, with whom Messrs. H.C. Brodie, Thomas J.L. Kennedy, J.M. Geraghty and Alex M. Winson were on the brief, for appellants. Mr. Otto B. Rupp, with whom Messrs. H.D. Pillsbury, Frank T. Post and C.M. Bracelen were on the brief, for appellees. MR. JUSTICE McREYNOLDS delivered the opinion of the Court. It will be convenient to dispose of these causes by one opinion as was done in the court below. Pacific Tel. & Tel. Co. v. Whitcomb, et al., 12 F. (2d) 279. Appellees operate telephone plants in Seattle, Tacoma and Spokane, Washington, under local franchises which designated maximum permissible rates. These were granted prior to 1911, but after adoption of the present Constitution of the State. The "Public Service Commission Law" of Washington, Ch. 117, Laws 1911 (Remington's Comp. Stat. 1922, Secs. 99 10349-10441), authorized a public service commission and directed that telephone rates, tolls, contracts and charges "shall be fair, just, reasonable and sufficient," etc. It further provided "Sec. 43. (Remington's Comp. Stat. 1922, Sec. 10379) Nothing in this act shall be construed to prevent any telegraph company or telephone company from continuing to furnish the use of its line, equipment or service under any contract or contracts in force at the date this act takes effect or upon the taking effect of any schedule or schedules of rates subsequently filed with the commission, as herein provided, at the rates fixed in such contract or contracts: Provided, however, That the commission shall have power, in its discretion, to direct by order that such contract or contracts shall be terminated by the telephone company or telegraph company party thereto, and thereupon such contract or contracts shall be terminated by such telephone company or telegraph company as and when directed by such order." "Sec. 55. (Remington's Comp. Stat. 1922, Sec. 10391) Whenever the commission shall find, after a hearing had upon its own motion or upon complaint, that the rates, charges, tolls or rentals demanded, exacted, charged or collected by any telegraph company or telephone company . . . are unjust, unreasonable, unjustly discriminatory or unduly preferential, or in any wise in violation of law, or that such rates, charges, tolls or rentals are insufficient to yield reasonable compensation for the service rendered, the commission shall determine the just and reasonable rates, charges, tolls or rentals to be thereafter observed and in force, and fix the same by order as hereinafter provided. . . ." Chapter 1, Laws of 1921, vested in the Department of Public Works powers theretofore entrusted to the Commission. 100 Control of the telephone systems owned by appellees was assumed by the Postmaster General, August 1, 1918, and retained for one year. He fixed rates for Seattle, Tacoma and Spokane higher than the maximum rates permitted by the original franchises. The Act of July 11, 1919 (41 Stat. Ch. 10, p. 157) repealed the Act of July 16, 1918 which authorized Federal control of telephone systems and directed that rates established by the Postmaster General should continue for four months after the termination of Federal control (July 31, 1919) unless sooner modified or changed by public authorities. August 8, 1919, the Public Service Commission directed appellees to observe the rates established by the Postmaster General; and they continued so to do. January, 1922, the Department of Public Works by formal complaint challenged the reasonableness of these rates. In the Autumn of 1922 appellees filed schedules of proposed increased rates which were suspended. Extended hearings were had concerning the value of properties devoted to the service and the reasonableness of the rates proposed. The Department found and declared the value of the properties; also "that the existing rates are just, fair, reasonable and sufficient; that the proposed increased rates both toll and exchange, are unjust, unfair, unreasonable, and more than sufficient." And on March 31, 1923, it ordered "that the applications of respondents for increased rates be and the same are hereby denied. That the proposed increased rates in their entirety be and they are hereby permanently suspended; that the same shall not become effective, and existing rates shall remain in effect until the further order of the Department." Shortly thereafter appellees began these proceedings in the United States District Court. They attacked the valuations by the Department and alleged that the rates designated by the order of March 31, 1923, were confiscatory. 101 The matter went to a master and was heard upon his report, etc. The court approved the master's conclusions that the Department's valuations were too low and the prescribed rates were confiscatory. It accordingly adjudged the challenged order void and without effect. The causes are here by direct appeal. The valuations approved by the court are not questioned; nor is it now claimed that the rates prescribed by the departmental order would yield adequate returns. But it is said that these rates must be regarded as contractual franchise rates and therefore they cannot be confiscatory in a constitutional sense. Appellants maintain that under the statutes of Washington when the Department terminates a franchise rate and prescribes another the result is "simply to terminate one rate and substitute therefor a new rate, and that, after such substitution has been made, there still continues a franchise contract between the company and the city, which cannot be again changed except by the discretion of the department, and that the refusal of the department to exercise that discretion raises no question of confiscation." Here, it is asserted, the department merely refused to change existing approved rates which were higher than the maxima originally specified in the granted franchises. The powers and duties of the Department of Public Works and the effect of its orders must be ascertained upon a consideration of the local constitution and statutes, and the construction placed upon them by the State courts. Georgia Ry. Co. v. Decatur, 262 U.S. 432, 437. Southern Iowa Electric Co. v. Chariton, 255 U.S. 539. The Public Service Law authorizes investigation of existing rates and expressly directs that whenever after a hearing they are found to be unjust or insufficient to yield reasonable compensation the Department shall determine what will be just and reasonable ones thereafter to be 102 observed and fix the same by order. The order of March 31, 1923, in effect declared the rates then being observed just and sufficient to yield reasonable compensation. It expressly commanded their future observance and was sufficient to terminate the provisions of the franchises as to maximum rates, within the purview of Section 55, supra. The Department made its investigation and order without regard to the franchise rates and treated the questions presented as unaffected thereby. It exercised the power and duty to fix reasonable and compensatory rates irrespective of any previous municipal action. We must treat the result as a bona fide effort to comply with the local statute. There is no adequate basis for the claim upon which appellants rely. See Puget Sound Traction Co. v. Reynolds, 244 U.S. 574, 578. Much consideration was given to the Public Service Law by the Supreme Court in State ex rel. Spokane v. Kuykendall, 119 Wash. 107, 111 (1920). There a gas company operating in Spokane under a franchise which prescribed maximum rates asked for increased rates. The Commission disapproved the proposed schedule but permitted the company to charge rates declared to be just, reasonable and sufficient. These exceeded the ones theretofore charged and were above the maximum permitted by franchise. The Court said: ". . . By the act of 1911 (Laws of 1911, p. 561, § 34) the terms of a franchise contract like the one in question here are binding upon the parties until the department of public works (heretofore the public service commission) has made an order directing a departure therefrom; and, without question, the department has the right and power to order a departure. State ex rel. Ellertsen v. Home Tel. & Tel. Co., 102 Wash. 196, 172 Pac. 899. In the case of State ex rel. Webster v. Superior Court, 67 Wash. 37, it was decided that the public service commission 103 law placed the entire subject of rate regulation under the control of the commission, that no contract between a city representing the public and a public service company would be allowed to interfere with that control, and by way of application of the rule, it was decided in that case to be the duty of the commission to the company to fix a rate which was sufficient (a rate that would afford a fair interest return on the investment), in spite of the franchise contract fixing rates which were too low. That, in legal effect, is what has been done in the present case." Responding to an argument in behalf of the City, based upon the proviso of Section 43, supra, the Court further said: "Therefrom it appears to be argued that the rates provided in the contract should continue until the commission makes an order specifically declaring and directing in so many words that the contract shall be terminated. We may overlook the fact, if need be, that, upon the petition of the city, the rates were reduced in 1913, and that in 1918 they were increased upon the application of the gas company, and consider the franchise contract as having been wholly undisturbed until the present time, and still we would be compelled to determine, as we do determine, that the present order of the department of public works is just as effective as if, after fixing the rates, there had been added therein the words `and it is hereby directed that the rates provided in the franchise shall be and they are hereby terminated,' or words of similar import. That is the legal effect of what was done, and the form or language by which it was accomplished is not very material." In the same cause the Gas Company maintained that the rates prescribed by the Commission's order were inadequate for its needs and unjust. This matter was carefully considered upon the merits, but the opinion nowhere suggests that the rates prescribed should be treated as if *104 specified in the franchise and obligatory upon the Company whether compensatory or no. Affirmed. MR. JUSTICE STONE took no part in the consideration of this case.	{ "pile_set_name": "FreeLaw" }
659 F.3d 1336 (2011) In re SHARED MEMORY GRAPHICS LLC, Petitioner. Misc. No. 978. United States Court of Appeals, Federal Circuit. September 22, 2011. 1338 Arthur Gollwitzer, III, F & B LLP, of Austin, TX, for petitioner Shared Memory Graphics LLC. With him on the petition were Adam V. Floyd and Chad Ennis. Grant E. Kinsel, Perkins Coie LLP, of Los Angeles, CA, for respondents Nintendo Co., Ltd., et al. Before NEWMAN, SCHALL, and DYK, Circuit Judges. Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge NEWMAN. ON PETITION DYK, Circuit Judge. ORDER Shared Memory Graphics LLC ("SMG") petitions for a writ of mandamus to direct the United States District Court for the Northern District of California to vacate its order granting Nintendo Co. of America's ("Nintendo") motion to disqualify the law firm of Floyd & Buss, LLP from further representation in this case based on the conflict-of-interest of Kent Cooper, one of the firm's partners. See Shared Memory Graphics LLC v. Apple Inc., No. 10-CV-2475 (N.D.Cal. Dec. 17, 2010) (granting Nintendo's motion to disqualify) [hereinafter Disqualification Order]; see also Shared Memory Graphics LLC v. Apple Inc., No. 10-CV-2475 (N.D.Cal. Mar. 4, 2011) (denying, inter alia, SMG's motion to clarify the December 17, 2010, disqualification order) [hereinafter Clarification Order]. Nintendo opposes. SMG replies. Because Nintendo clearly and indisputably waived the conflict-of-interest, we grant mandamus and direct the court to vacate its disqualification orders. BACKGROUND This petition arises out of SMG's patent infringement suit against Nintendo, Apple, Inc., Samsung Electronics Co., and Sony Corporation of America. SMG's claims against Nintendothe only party that sought disqualification hereinvolve the "Hollywood chip," a complex memory chip composed of multiple components. The Hollywood chip was previously the subject of a suit for patent infringement, which was brought by Lonestar Inventions, L.P. Advanced Micro Devices ("AMD") and Nintendo were defendants in that suit, and they decided to exchange information concerning litigation tactics and settlement strategies, drafts of briefs, and other confidential information under a Joint Defense Agreement. Paragraph 6 of the Agreement provided as follows: Nothing contained in this Agreement has the effect of transforming outside or inside counsel for either party into counsel for the other party, or of creating any fiduciary or other express or implied duties between a party or its respective counsel and the other party or its respective counsel, other than the obligation to comply with the express terms 1339 of this Agreement, or of interfering with each lawyer's obligation to ethically and properly represent his or her own client. The parties expressly acknowledge and agree that nothing in this Agreement, nor compliance with the terms of this Agreement by either party, shall be used as a basis to seek to disqualify the respective counsel of such party in any future litigation. P.A. 17. Kent Cooperthe attorney at the center of this disputewas working as the Director of Patents and Licensing for AMD at the time of the Lonestar litigation. He helped assess the infringement claim and the validity of the patent at issue in that case. After the Lonestar litigation, Cooper left AMD to join the law firm of Floyd & Buss as a partner. Admittedly, the firm did not screen Cooper upon his entry. Soon thereafter, Floyd & Buss filed this suit on behalf of SMG against Nintendo and the other defendants. Nearly ten months after the suit was filed, Nintendo moved to disqualify Floyd & Buss from continued representation in this case. Although the parties agreed that Cooper never represented Nintendo at any time, there was a dispute whether Cooper received confidential information from Nintendo during the Lonestar litigation. The district court granted the motion and disqualified the entire firm from continued representation. In the district court's view, the Joint Defense Agreement's provision waiving any basis to seek disqualification of the "respective counsel of such party in any future litigation," did not pertain to an attorney like Cooper who subsequently left AMD or Nintendo or its counsel and joined another company or firm. Disqualification Order at 6. Instead, the court held that the Agreement's waiver provision only contemplated conflicts between AMD and Nintendo as "either party." Id. The court stated that "[t]here is no evidence to suggest that the waiver contemplated covering attorneys who left their respective companies for new clients." Id. Therefore, in the view of the district court, "the Lonestar JDA does not foreclose Nintendo's motion to disqualify Cooper for breach of confidentiality." Id. Finding that the case at bar and the Lonestar litigation involved similar technology and similar legal issues pertaining to whether the Hollywood chip infringed the asserted claims, the district court applied a conclusive presumption that Cooper had accessed Nintendo's confidential information and held that disqualification of the entire Floyd & Buss firm was therefore necessary. Id. at 7-9. In a subsequent ruling, the district court clarified that Floyd & Buss was not only disqualified from representing SMG against Nintendo, but disqualified from representing SMG against all of the defendants in the action. See Clarification Order at 2. SMG filed this petition, which seeks a writ of mandamus to vacate these rulings and for the district court to be directed to reinstate Floyd & Buss as counsel for SMG. DISCUSSION The remedy of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). This court has thus held that a party seeking a writ bears the burden of proving that it has no other means of obtaining the relief desired, Mallard v. U.S. Dist. Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is "clear and indisputable," Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). 1340 Citing Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), Nintendo contends that mandamus authority cannot be exercised under the circumstances of this case. Nintendo's reliance on Richardson-Merrell for this proposition, however, is misplaced. The question at issue there was whether an order disqualifying counsel could be appealed under the collateral-order doctrine, which furnishes "an exception to the final judgment rule for a `small class' of prejudgment orders." Id. at 430, 105 S.Ct. 2757. Far from stating that an order disqualifying counsel may not be remedied through a writ of mandamus, the Court specifically noted that "a rule precluding appeal [under the collateral-order doctrine] would not necessarily leave the client or the disqualified attorney without a remedy" because "a party may seek ... a writ of mandamus from the court of appeals." Id. at 435, 105 S.Ct. 2757. Nintendo also cannot seriously contest that SMG could meaningfully obtain this relief other than by seeking a writ of mandamus. By the time an appeal here could be taken, the trial would be over, and SMG would have gone through the litigation without the counsel of its choice.[1] Mandamus thus acts as a safety valve to prevent such irreparable harm if appropriate circumstances are presented. See Mohawk Indus., Inc. v. Carpenter,___ U.S. ___, 130 S.Ct. 599, 608, 175 L.Ed.2d 458 (2009). We therefore turn to the merits. A request for mandamus relief is determined under Federal Circuit law, except to the extent that underlying procedural issues may be governed by the law of the regional circuit, which in this case is the law of the Ninth Circuit. In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1374 (Fed.Cir.2001). Motions to disqualify under the law of that circuit in turn are decided under state law, in this case California law, where this case is pending. See In re Cnty. of Los Angeles, 223 F.3d 990, 995 (9th Cir.2000). SMG argues that the district court erred by granting Nintendo's motion for disqualification. SMG contends that the motion was precluded by the waiver-of-conflict provision in the Lonestar Joint Defense Agreement. According to SMG, the Agreement clearly intended to bar Nintendo from seeking to disqualify "respective counsel" like Cooper who subsequently left one of the parties or its counsel to join another company or law firm. That waiver provision, set forth in Paragraph 6 of the Joint Defense Agreement, provides: The parties expressly acknowledge and agree that nothing in this Agreement, nor compliance with the terms of this Agreement by either party, shall be used as a basis to seek to disqualify the respective counsel of such party in any future litigation. P.A. 17. We agree with SMG's interpretation. As an initial matter, while challenging SMG's reading of the Joint Defense Agreement, Nintendo cannot dispute that these types of waiver provisions are enforceable where, as here, there is a non-attorney-client 1341 relationship (Cooper did not represent Nintendo in the Lonestar litigation) involving sophisticated parties. See generally Model Rules of Prof'l Conduct 1.7 cmt. 22 (noting "if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective"). Even in attorney-client situations, general rules of professional legal conduct recognize that in certain circumstances it is not only proper but beneficial for parties to contractually consent to a waiver of future conflicts of interest. See Restatement (Third) of the Law Governing Lawyers, § 122 cmt. D (2000) ("[T]he gains to both lawyer and client from a system of advance consent to defined future conflicts might be substantial."); see generally Model Rules of Prof'l Conduct 1.7 cmt. 22 (recognizing the appropriateness of contracting advanced waivers of conflicts of interest). Moreover, courts applying California law, which governs motions to disqualify counsel, In re Cnty. of Los Angeles, 223 F.3d at 995, have generally recognized the enforceability of advanced waiver of potential future conflicts, even if the waiver does not specifically state the exact nature of the future conflict, see Visa U.S.A., Inc. v. First Data Corp., 241 F.Supp.2d 1100, 1105 (N.D.Cal.2003). Though California law governs motions to disqualify counsel, Paragraph 13 of the Joint Defense Agreement provides that the agreement is to be "governed by and construed in accordance with the laws of the State of Washington." Our task is to give effect to the plain language of the parties' agreement. In doing so, we look to the document as a whole, being careful to avoid an interpretation that would render any part of the Agreement superfluous. See Wagner v. Wagner, 95 Wash.2d 94, 101, 621 P.2d 1279 (1980); see also Restatement (Second) of Contracts § 203(a) & cmt. b (1981) ("Since an agreement is interpreted as a whole, it is assumed in the first instance that no part of it is superfluous."). In view of these principles, the Agreement's terms clearly point away from the district court's conclusion that Cooper was not covered by the waiver provision. Nintendo agreed not to seek disqualification of then "respective counsel of such party [i.e., AMD] in any future litigation." Cooper was indisputably a "respective counsel" of AMD, and, contrary to Nintendo's objections, the breadth and temporal scope of the waiver are broad enough to include "any future litigation" between Nintendo and a party employing, or represented by, Cooper. This interpretation is bolstered by the fact that "respective counsel" was a term used consistently throughout Paragraph 6 of the Joint Defense Agreement. Just before the waiver provision, the paragraph provides: "Nothing contained in this Agreement has the effect of ... creating any ... duties between a party or its respective counsel and the other party or its respective counsel, other than the obligation to comply with the express terms of this Agreement[.]" (emphasis added). To limit the definition of "respective counsel" in this provision to current counsel of AMD and Nintendo (namely, counsel for AMD and Nintendo in 2010 and 2011, or at the time of the SMG litigation), however, would produce an illogical result: former counsel such as Cooper would have no ongoing obligation of confidentiality. In addition, such a reading of the Joint Defense Agreement would violate the fundamental principle that a contract should be interpreted so as to give meaning to each of its provisions. See Brinderson-Newberg Joint Venture v. Pac. Erectors, Inc., 971 F.2d 272, 278-79 1342 (9th Cir.1992); Wagner, 95 Wash.2d at 101, 621 P.2d 1279; see also Restatement (Second) of Contracts § 203(a) & cmt. b ("Since an agreement is interpreted as a whole, it is assumed in the first instance that no part of it is superfluous."). The parties clearly expressed their intention for Cooper and other "respective counsel" to comply with the terms of confidentiality. Pursuant to the district court's interpretation, however, limiting "respective counsel" to current counsel for AMD or Nintendo would mean that the Joint Defense Agreement imposes no ongoing obligation of confidentiality with respect to former counsel. Such a reading of the agreement is plainly illogical and contrary to the intent of the parties. This would contradict the very reason why any joint defense agreement is in effect in the first place. Because the only construction that honors the parties' intent to protect their confidential information while keeping the paragraph internally consistent is to include Cooper as a "respective counsel," we agree with SMG that the district court's determination was incorrect as a matter of law.[2] Furthermore, we believe that SMG will be adversely affected if it is required to wait until after a final adverse judgment to have this issue addressed because it will have been required to proceed through the litigation without counsel of its choice. We therefore hold that SMG has demonstrated that its right to issuance of the writ is "clear and indisputable," and that the writ of mandamus should be granted. Although SMG raises other assertions of error, because we agree Nintendo waived this potential conflict, we do not address these issues. Accordingly, IT IS ORDERED THAT: The petition is granted. The district court is directed to vacate its order disqualifying Cooper and the Floyd & Buss law firm from further representation in this case. NEWMAN, Circuit Judge, dissenting. It is not disputed that as Director of Patents and Licensing and in-house counsel to AMD, Kent Cooper was a member of AMD's litigation team when Nintendo and AMD entered into an agreement to exchange vital confidential information, and pursue a common defense against the Lonestar Corporation in a patent infringement suit involving the same accused graphics processing chip at issue here. Nor is it disputed that after Cooper joined the law firm of Floyd and Buss, the firm was and is representing parties adverse to Nintendo. The firm did not take any steps to exclude Cooper from the firm's activities in this lawsuit; there is no representation that the traditional "firewall" was erected. While Cooper states that he does not remember receiving Nintendo's confidential information, even his co-counsel at AMD states that Cooper was privy to litigation tactics and strategies that are likely relevant in this substantially-related case. Whether or not Cooper drew upon his insider's information in past interaction with Nintendo, it cannot be presumed that this did not occur. See generally In re Am. Airlines, 972 F.2d 605, 614, n. 1 (5th Cir.1992). The issue is not simply whether Nintendo's information may be used against itself during this litigation; the issue is the integrity of the system of legal representation in today's world of mobile lawyers 1343 and large law firms with interacting clients. Thus the system of firewalls has been accepted for many situations. Here, however, it appears that Cooper in his new employment is associated with issues involving his former employer, and that his former employment was at the highest level in interaction with Nintendo's legal and strategic interests. If there is doubt, it must be resolved in favor of the entity whose information is in jeopardy. The district court applied these routine precepts, and excluded Cooper and his new firm from this litigation, for the possible threat posed to Nintendo is not tolerated under the laws of California or the rules of professional conduct. It is well established that a disqualification is proper when an attorney has received information in his role as an attorney, even if the source of the information is not a "client" of the attorney. See Oaks Management Corp. v. Superior Court, 145 Cal.App.4th 453, 464, 51 Cal.Rptr.3d 561 (2006); Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft, 69 Cal.App.4th 223, 232-33, 81 Cal.Rptr.2d 425 (1999) ("an attorney's receipt of confidential information from a non-client may lead to the attorney's disqualification"); see also United States v. Henke, 222 F.3d 633, 637 (9th Cir.2000) (a joint defense agreement can create a disqualifying conflict where information gained in confidence by an attorney becomes an issue). The California courts have accepted the presumption of receipt of confidential information, to protect not only the holder of the information but also the attorney, ensuring that the attorney does not need to "engage in a subtle evaluation of the extent to which he acquired relevant information in the first representation and of the actual use of that knowledge and information in the subsequent representation." Global Van Lines, Inc. v. Superior Court, 144 Cal.App.3d 483, 489, 192 Cal.Rptr. 609 (1983). Cooper's disqualifying conflict thus warranted his disqualification and, in the district court's discretion, the disqualification of the law firm that represents the adverse interests. The integrity of the legal process demands no less. My colleagues on this panel, however, hold that Nintendo waived this conflict, from their reading of the following paragraph in the Agreement: Nothing contained in this Agreement has the effect of transforming outside or inside counsel for either party into counsel for the other party, or of creating any fiduciary or other express or implied duties between a party or its respective counsel and the other party or its respective counsel, other than the obligation to comply with the express terms of this Agreement, or of interfering with each lawyer's obligation to ethically and properly represent his or her own client. The parties expressly acknowledge and agree that nothing in this Agreement, nor compliance with the terms of this Agreement by either party, shall be used as a basis to seek to disqualify the respective counsel of such party in any future litigation. While the majority finds this statement to be "clear and indisputable" evidence of a waiver as to Cooper and his new law firm, it is neither clear nor indisputable. According to my colleagues' understanding, Nintendo disclosed confidential information with the knowledge that Cooper might leave AMD and use that information to Nintendo's disadvantage, and waived all right to object to such adverse activity. Such a waiver would be remarkable, and cannot be presumed. There is no carve-out provision from the conditions of confidentiality that would allow an attorney to represent another party against Nintendo or AMD in a future action. *1344 The Agreement's waiver provision, while attempting to avert disputes, does not authorize future adverse representation. The majority extracts text from several different parts of the paragraph, to support its result. However, the standard that SMG must meet is that Nintendo's waiver clearly met this clear-cut conflict situation. That standard has not been met. The district court, applying California law and practice, found that any waiver did not apply to the situation presented by Cooper and his new association. In addition to its rejection of Nintendo's interpretive arguments, the district court stated that the parties had failed to present any "evidence to suggest that the waiver contemplated covering attorneys who left their respective companies for new clients." Shared Memory Graphics LLC v. Apple, Inc., No. 10-CV-2475, slip op. at 6 (N.D.Cal. Dec. 17, 2010). The majority of this panel, in considering this court's mandamus authority in local disqualification matters, overlooks the most important: that even in the face of irreparable harm, the district court's reasonable conclusion is within that court's discretion. The Ninth Circuit, whose law we apply here, has made clear "that a district court has the prime responsibility for controlling the conduct of lawyers practicing before it, and that an order disqualifying counsel will not be disturbed if the record reveals `any sound' basis for the district court's action." In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 658 F.2d 1355, 1358 (9th Cir.1981) (citing Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322, 1325 (9th Cir.1976)). Our task is to ensure that the district court's decision was not a "clear abuse of discretion or `usurpation of judicial power.'" Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106 (1953) (citation omitted). That standard cannot be met where, as here, there is plausible support for the district court's ruling. See In re Cordis Corp., 769 F.2d 733, 737 (Fed.Cir.1985) (noting that "if a rational and substantial legal argument can be made in support of the rule in question, the case is not appropriate for mandamus."). Despite my colleagues' unwillingness to recognize that disqualification is proper based on breach of the lawyer's professional obligations, in a footnote this court apparently acknowledges that Cooper and his law firm could be disqualified if they are found to breach the Agreement. However, professional responsibility in the legal system does not distinguish between a written agreement to protect information received as an attorney, and the ethical obligation to protect information received as an attorney. The possible adverse use of such information, flowing from a change in the lawyer's employment, is prohibited under any theory. The district court so recognized. The district court's decision to disqualify Cooper and his law firm was not an abuse of the trial judge's discretion. This court has inappropriately intruded into the district court's authority and responsibility, to the detriment of the integrity of legal practice. I respectfully dissent. NOTES [1] The Supreme Court has described the circumstances in which an order disqualifying counsel could be reviewed on direct appeal, stating that, "should the Court of Appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate the judgment appealed from and order a new trial." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). In other words, it appears as though a showing of prejudice would be required. Practically speaking, it would be very difficult to demonstrate prejudice absent some sort of misconduct on the part of counsel. [2] In holding that waiver provision applicable to counsel who have left the employment of one of the parties to the agreement, we in no way suggest that counsel subject to the agreement could not be disqualified for failure to comply with the agreement itself.	{ "pile_set_name": "FreeLaw" }
109 F.Supp.2d 930 (2000) Craig ANDERSON, Plaintiff, v. VILLAGE OF OSWEGO, an Illinois municipal corporation, Defendant. No. 00 C 2226. United States District Court, N.D. Illinois, Eastern Division. August 9, 2000. 931 Stephen M. Cooper, Peter M. Storm, Cooper & Storm, Philip Joseph Piscopo, Cooper & Storm, Geneva, IL, for Plaintiff. Michael Ives Richardson, Terrence T. Creamer, Jennifer L. Schilling, Franczek, Sullivan, Mann, Crement, Hein, Relias, P.C., Chicago, IL, for Defendant. MEMORANDUM ORDER BOBRICK, United States Magistrate Judge. Before the court is the motion of defendant Village of Oswego to dismiss the complaint of plaintiff Craig Anderson. I. BACKGROUND Plaintiff worked for the defendant as a building and zoning administrator from 1991 to 1999. He testified pursuant to a subpoena on July 16, 1998, in a civil case brought against defendant as a result of a contract dispute. The defendant lost the case and was found liable for $1.3 million. Defendant suspended plaintiff in February of 1999 and, on March 8, 1999, terminated him. Plaintiff claims he was terminated in retaliation for his testimony in response to the subpoena. He brings a two-count complaint, alleging retaliatory discharge under the common law of Illinois, and denial of equal protection under 42 U.S.C. § 1983. Defendants now move to dismiss plaintiff's complaint. A. Plaintiff's Allegations In considering a motion to dismiss, we accept as true all well-pleaded factual allegations and draw all possible inferences in favor of the plaintiff. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir.1998). As already noted, the defendant in this case was named defendant in a lawsuit. The suit alleged that defendant had refused to honor certain contractual obligations regarding payment of construction costs of water and sewer improvements. Plaintiff was subpoenaed as a witness and, on July 16, 1998, testified at trial. At trial's end, judgement was enter against the defendant in the amount of approximately $1.3 million. (Complaint, ¶¶ 5-7). According to plaintiff, shortly after he testified, defendant accused him of wrongfully providing confidential information an accusation which plaintiff denies. Defendant suspended plaintiff on February 9, 1999, stating that he had wrongly issued a variance and for other unstated performance issues. Finally, on March 8, 1999, plaintiff was terminated. (Complaint, ¶¶ 9-13). Under Count I of his complaint, plaintiff alleges that defendant violated clearly mandated public policy by firing plaintiff for testifying truthfully against it. This, plaintiff claims, constitutes retaliatory discharge under the common law of Illinois. (Complaint, ¶¶ 15-17). In addition, under 932 Count II, plaintiff claims defendant's actions violated the equal protection clause of the Fourteenth Amendment, wrongfully treating him disparately as a "class of one." (Complaint, ¶¶ 20-24). B. Defendant's Arguments Defendant argues that plaintiff has not adequately alleged a claim for retaliatory discharge, because he has not alleged that he was terminated in violation of a clearly mandated public policy. Defendant also contends that plaintiff's equal protection claim must fail because he has not alleged that he was terminated based on a policy or custom of disparate treatment. II. ANALYSIS A complaint will not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Cook v. Winfrey, 141 F.3d 322, 327 (7th Cir. 1998). We must read the complaint liberally and accept as true the well-pleaded allegations and the inferences that may reasonably be drawn from those allegations. Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir.1999). "The issue is not whether a plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support the claims." Id. A. Retaliatory Discharge Claim Plaintiff brings Count I under the Illinois common law, alleging retaliatory discharge. Defendant moves to dismiss. Now it gets complicated. First, the boilerplate. An employee can state a claim for retaliatory discharge only if he can demonstrate that he was terminated for his actions, and that the termination violated a clear mandate of public policy. Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). The public policy must be found in the state's constitution, statutes or, where they are silent, in the judicial decision of the state's courts. Id. Here, plaintiff alleges he was fired for truthfully testifying against his employer, the defendant, in response to a subpoena. The issue defendant raises in its motion to dismiss is whether firing an employee for complying with a subpoena to testify against his employer amounts to a contravention of public policy. The complicated part is that the law on what public policies will support a claim is one of the murkier areas of law around. The tort of retaliatory discharge was essentially created by the Illinois Supreme Court in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978), where an employee was fired for filing a worker's compensation claim. In so doing, the court stated that it was "convinced that to uphold and implement this public policy [favoring the exercise of worker's compensation rights,] a cause of action should exist for retaliatory discharge." 74 Ill.2d at 181, 23 Ill.Dec. 559, 384 N.E.2d at 357. Three years later, the Illinois Supreme Court revisited the recently created tort in Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). There, the court considered a case where an employee was discharged for reporting unspecified, possible criminal conduct of a fellow employee to local law enforcement, and agreeing to aid in further investigation. Necessarily, the court considered the "public policy" aspect of its prior decision: By recognizing the tort of retaliatory discharge, Kelsay acknowledged the common law principle that parties to a contract may not incorporate in it rights and obligations which are clearly injurious to the public. (See People ex rel. Peabody v. Chicago Gas Trust Co. (1889), 130 Ill. 268, 294, 22 N.E. 798.) This principle is expressed forcefully in cases which insist that an employer is in contempt for discharging an employee who exercises the civic right and duty of serving on a jury. (People v. Vitucci (1964), 49 Ill.App.2d 171, 172, 199 N.E.2d 78; People v. Huggins (1930), 258 Ill.App. 238, 243); see also Ill.Rev. Stat.1979, ch. 38, par 155-3 (making it a 933 contempt of court to fire or discipline an employee for attending court when subpoenaed as a witness). But the Achilles heel of the principle lies in the definition of public policy. When a discharge contravenes public policy in any way the employer has committed a legal wrong. However, the employer retains the right to fire workers at will in cases "where no clear mandate of public policy is involved" (Leach v. Lauhoff Grain Co., (1977), 51 Ill.App.3d 1022, 1026, 9 Ill. Dec. 634, 366 N.E.2d 1145). But what constitutes clearly mandated public policy? There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State's constitution and statutes and, when they are silent, in its judicial decisions. (Smith v. Board of Education (1950), 405 Ill. 143, 147, 89 N.E.2d 893.) Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed. 85 Ill.2d at 130, 52 Ill.Dec. 13, 421 N.E.2d at 879. Obviously, this holding transformed the question of "what constitutes public policy" into "what constitutes a citizen's social rights, duties and responsibilities." Twenty years after Kelsay, the court noted that there was still no answer to the issues left open in Kelsay and Palmateer, but determined that: a review of Illinois case law reveals that retaliatory discharge actions are allowed in two settings. The first situation is where an employee is discharged for filing, or in anticipation of the filing of, a claim under the Worker's Compensation Act. (820 ILCS 305/1 et seq. (West 1992)). See Hinthorn v. Roland's of Bloomington, Inc., 119 Ill.2d 526, 116 Ill.Dec. 694, 519 N.E.2d 909 (1988); Kelsay, 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353. The second situation is when an employee is discharged in retaliation for reporting of illegal or improper conduct, otherwise known as "whistle blowing." Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). Jacobson v. Knepper & Moga, P.C., 185 Ill.2d 372, 377, 235 Ill.Dec. 936, 706 N.E.2d 491, 493 (1998). What is unclear is whether this effected a limitation of the tort to these two categories. The "worker's compensation" category is clear and easy to apply. The "whistleblower" category is nebulous and has been suspect from the beginning. As already noted, the criminal conduct reported in the seminal "whistleblower" case, Palmateer, is unspecified: the plaintiff in Palmateer reported that a fellow "employee might be involved in a violation of the Criminal Code of 1961" 85 Ill.2d at 127, 52 Ill.Dec. 13, 421 N.E.2d at 877. The dissent in Palmateer pointed out that the complaint in that case did "not even allege that a crime had been committed. It only allege[d] that plaintiff ... reported ... that an employee of the defendant might be involved in a violation of the criminal code and that he agreed to assist ... in gathering further information." 85 Ill.2d at 142, 52 Ill.Dec. 13, 421 N.E.2d at 884 (Ryan, J., dissenting). That does not exactly constitute whistleblowing. In addition, it is unclear how serious does the crime or improper conduct have to be before public policy is implicated. Reports of activity that impinges on public health or safety are easily, and readily accepted as furthering public policy, whether or not the activity is criminal. Stebbings v. University of Chicago, 312 Ill.App.3d 360, 372-73, 244 Ill.Dec. 825, 726 N.E.2d 1136, 1145 (2000) (collected cases). On the other hand, Illinois courts have stated that social and economic regulation are unlikely to support a retaliatory discharge 934 claim. Leweling v. Schnadig Corp., 276 Ill.App.3d 890, 894, 212 Ill.Dec. 762, 657 N.E.2d 1107, 1110 (1995) (collected cases). Then again, seemingly purely economic concerns like securities and taxes will support claims. Stebbings, 312 Ill. App.3d at 373, 244 Ill.Dec. 825, 726 N.E.2d at 1146 (collected cases). In short, there is really no telling what will be found to constitute a public policy sufficient to support a retaliatory discharge claim. Returning to the instant case, we note that defendant's initial argument for dismissal is based on the fact that plaintiff testified in a civil case; it submits that access to the courts for non-criminal matters does not involve a clearly mandated public policy. As plaintiff points out, however, it is mandatory to respond to a lawful subpoena, ILCS S.Ct.R. 237(a), and it is a Class 3 felony to make a false statement under oath. 720 ILCS 5/32-2. Plaintiff's complaint also implicates the crimes of deterring a witness from testifying and harassing a witness. 720 ILCS 5/32-4; 5/32-4a. Defendant's only reply to this is that these crimes were hypothetical because none were prosecuted. Defendant's position is that "[s]imply because the criminal code could have been implicated does not make Plaintiff's testimony regarding a contract dispute" sufficient to support a retaliatory discharge claim. (Defendant's Reply Memorandum, at 3). Yet, all that was before the court in Palmateer was a situation where the criminal code could have been implicated. At this stage of the proceedings, we think public policy is sufficiently implicated where the plaintiff alleges he was fired for obeying a subpoena and testifying against his employer in a contract dispute. Illinois Supreme Court Rules and criminal statutes support this position, and dicta in retaliatory discharge cases clearly states that "attending court when subpoenaed" is a matter of public policy justifying a retaliatory discharge claim. Shearson Lehman Bros., Inc. v. Hedrich, 266 Ill.App.3d 24, 639 N.E.2d 228, 233 (1st Dist.1994). Plaintiff's complaint suggests that defendant had attempted to avoid a million dollar contract obligation. It is true, as defendant persists, that it was a civil matter. But as the court in Stebbings pointed out, the tort of retaliatory discharge will protect the reporting of any violation of the Criminal Code, be it as minor as the theft of a $2 screwdriver. 312 Ill.App.3d at 372, 244 Ill.Dec. 825, 726 N.E.2d at 1145. That would seem to be a far less concern than a million-dollar debt. B. Equal Protection Claim Plaintiff brings Count II of his complaint under 42 U.S.C. § 1983, alleging that defendant denied him equal protection under the law. Defendant argues that plaintiff's claim cannot stand because he failed to allege he was terminated pursuant to a municipal custom or policy. Under Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality cannot be held liable for § 1983 claims under a respondeat superior theory of liability. 436 U.S. at 691, 98 S.Ct. at 2018. Instead, a claim must be based on a policy or custom, which can take three forms: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute `custom or usage' with the force of law; or (3) an allegation that the constitutional injury was caused by a person with `final policymaking authority.' Garrison v. Burke, 165 F.3d 565, 571-72 (7th Cir.1999). Here, defendants argue that because plaintiff states he was a "class of one," his own allegations undermine his claim. That is, "the fact that the alleged disparate treatment occurred only once clearly negates any inference of a Village policy or custom." Defendant's Memorandum of Law, at 7 (citing Grow v. City of Milwaukee, 84 F.Supp.2d 990 (E.D.Wis.2000); Love v. Cook County, 82 *935 F.Supp.2d 911 (N.D.Ill.2000); Sarantakis v. Village of Winthrop Harbor, 969 F.Supp. 1095 (N.D.Ill.1997)). Recalling that we must read plaintiff's complaint liberally, we note that he alleges that his termination was the result of the decision of the village's administrator, Bruce Bonebrake. This allegation allows the inference that plaintiff's alleged deprivation was caused by a person with policymaking authority. Furthermore, defendant's argument ignores Seventh Circuit precedent recently affirmed by the Supreme Court allowing for "class of one" equal protection claims. Olech v. Village of Willowbrook, 160 F.3d 386 (7th Cir.1998) aff'd, ___ U.S. ___, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). These are "vindictive action" cases where the plaintiff must show that the "defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position." Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000). The plaintiff here makes just such an allegation, claiming he was terminated for no other reason then his compliance with a subpoena and giving evidence that damaged the defendant's case in a lawsuit. At the allegation stage, this certainly passes for action that was vindictive and personal. III. CONCLUSION For the foregoing reasons, defendant's motion to dismiss plaintiff's complaint is DENIED.	{ "pile_set_name": "FreeLaw" }
541 U.S. 1043 ALDANAv.DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION. No. 03-1310. Supreme Court of United States. May 17, 2004. 1 C. A. 5th Cir. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN ON MOTION FOR RECUSAL NO. 03-05-00585-CR NO. 03-05-00586-CR Ex parte James W. Ellis NO. 03-05-00589-CR NO. 03-05-00590-CR NO. 03-05-00591-CR NO. 03-05-00592-CR NO. 03-05-00593-CR NO. 03-05-00594-CR NO. 03-05-00595-CR NO. 03-05-00596-CR NO. 03-05-00597-CR NO. 03-05-00598-CR NO. 03-05-00599-CR NO. 03-05-00600-CR NO. 03-05-00601-CR NO. 03-05-00602-CR NO. 03-05-00603-CR Ex parte John Dominick Colyandro FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NOS. D-1-DC-2005-904122, 9040564, 9040570, 9040571, 9040572, 9040573, 9040574, 9040575, 9040576, 9040577, 9040565, 9040566, 9040567, 9040568, 9040569, 9040598 & D1DC-05-904121 HONORABLE BOB PERKINS, JUDGE PRESIDING D I S S E N T I N G O P I N I O N Litigants have a right to a fair and impartial judiciary. The State of Texas, as the steward of the judicial system, has the obligation to create such a forum, to promote public confidence in the courts, and to safeguard the courts from even the appearance of impartiality or corruption, including political bias or favoritism. As life and liberty are at issue in a criminal proceeding, a judge's impartiality--and the parties' perception of that impartiality--is of critical importance to the parties and society. Indeed, impartiality and the perception of impartiality are a defining feature of the judicial role. Because recusal serves to safeguard that role, I dissent to the Court's denial of the motion for recusal. The facts are these: These accelerated appeals were filed in this Court over three years ago in September 2005. The parties filed their briefs and the causes were originally submitted to the Court to be decided on the briefs, without oral argument, in January 2006. Cause Nos. 03-05-00585-CR and 03-05-00586-CR (the "Ellis" appeals) were submitted to the panel consisting of Justices B. A. Smith, Patterson and Puryear. The remaining causes (the "Colyandro" appeals) were submitted to the panel consisting of Chief Justice Law, Justices Pemberton and Waldrop. Six months later, these submissions were cancelled without consultation or explanation, and all of the causes were reset for a specially scheduled end-of-summer oral argument on August 22, 2006, before the panel consisting of Chief Justice Law, Justices Pemberton and Waldrop. The Court's notice instructed the parties as follows: You are hereby notified that this Court has determined that the above referenced causes should be orally argued. Submission on briefs has this date been canceled and the causes are reset for submission and oral argument on Tuesday, August 22, 2006 at 9:00 AM, before Chief Justice Law, Justices Pemberton and Waldrop. Although these cases were originally assigned to different panels, no explanation was given for the reassignment of the Ellis appeals from the Smith, Patterson, Puryear panel to the Law, Pemberton, Waldrop panel. (1) Two years later, the Court issued its opinion in these accelerated appeals, written by Justice Waldrop. On rehearing, the State filed a motion to recuse Justice Waldrop, and on September 25, 2008, Justice Waldrop advised the other justices that he declined to recuse himself. (2) The rules of appellate procedure provide that "the challenged judge or justice must either remove himself from all participation in the case, or certify the matter to the entire court, which will decide the motion by a majority of the remaining judges sitting en banc." Tex. R. App. P. 16.3(b). For the first time, on December 19, 2008, Justice Waldrop circulated to the justices of this Court the required Rule 16.3(b) certification. I asked the clerk of this Court on more than one occasion--in writing with notice to the other justices--to request a response to the State's motion. The three-judge majority has opposed the request for a response and, to date, a response has not been requested or otherwise submitted. Without a response, the facts alleged in the State's motion are uncontroverted. The State asserts that, while in private practice before accepting his appointment as a justice on this Court, Justice Waldrop served as counsel for the group Texans for Lawsuit Reform (TLR) and filed several pleadings in the civil cause of action related to these criminal proceedings now before us. The plaintiffs in the civil proceedings served TLR with a deposition by written questions and a subpoena duces tecum seeking documents and records reflecting TLR's communications with Texans for a Republican Majority Political Action Committee (TRMPAC) and its representatives, including the defendants in these appeals John Colyandro and Jim Ellis. In April 2004, as TLR's counsel, Justice Waldrop signed and filed pleadings on behalf of TLR objecting to the plaintiffs' requests, insisting that TLR had no information related to the plaintiffs' allegations, and referring to the plaintiffs' case as a "politically motivated lawsuit." In later pleadings, Justice Waldrop argued that plaintiffs and their counsel were "attempting to use the discovery process in this lawsuit to harass a political opponent," and he declared that TLR "would resist any attempts by plaintiffs to harass political opponents." All of the pleadings referenced in the State's motion were signed by Justice Waldrop as counsel for TLR. The State asserts--and it is uncontroverted--that the issues in the civil case centered around the same conduct now before us in the instant criminal proceedings and that Justice Waldrop filed pleadings "denigrating the case as 'politically motivated.'" The rules of appellate procedure require a party to file a motion to recuse an appellate justice or judge "promptly after the party has reason to believe that the justice or judge should not participate in deciding the case." Tex. R. App. P. 16.3(a). The State asserts that it has complied with the rule to promptly file a motion to recuse because it "just discovered in the last few weeks" the grounds it now urges as the basis for Justice Waldrop's recusal. Although the State admits that it has known of Justice Waldrop's representation of TLR, the State seeks to recuse Justice Waldrop only from further participation in these appeals on a going forward basis. The State urges that it had no reason to question Justice Waldrop's impartiality until the Court's opinion in these proceedings was released and it then discovered the pleadings signed by Justice Waldrop that are the subject of this motion. The language of our rules is clear and straightforward: the grounds for recusal of an appellate justice or judge are the same as those provided in the rules of civil procedure. Tex. R. App. P. 16.2. Texas Rule of Civil Procedure 18b provides that "[a] judge shall recuse himself in any proceeding in which . . . his impartiality might reasonably be questioned." Tex. R. Civ. P. 18b(2)(a). This language is mandatory, and the standard is objective, not subjective. Id. It calls upon the judge--in the first instance--to assess his impartiality. A reasonable doubt is resolved in favor of recusal. As a supreme court justice who recused himself explained in Rogers v. Bradley, 909 S.W.2d 872, 873 (Tex. 2004) (Gammage, J.) (declaration of recusal), the problem is one of perception. When considering a motion to recuse, we should ask "whether a reasonable member of the public at large, knowing all of the facts in the public domain concerning the judge's conduct, would have a reasonable doubt that the judge is actually impartial." See id. at 881 (Enoch, J., concurring). Applying this standard of reasonableness, based on this record, I conclude that Justice Waldrop should recuse himself from further participation in these appeals. Justice Waldrop's conduct as a private litigator in the related civil proceedings is sufficient to cast a reasonable doubt as to his impartiality in these appeals. As a private attorney, Justice Waldrop represented a group that was aligned with and had similar interests with the defendants. (3) From the pleadings before us, it appears that his client was the subject of discovery requests in the related civil lawsuit. Justice Waldrop's representation was not unrelated to the proceedings now before us as it occurred in the civil proceedings arising out of the same conduct at issue in these appeals--namely, the alleged money laundering by a political action committee for the purpose of influencing Texas elections. It is Justice Waldrop's role as an advocate in those related proceedings--as well as the statements made in the pleadings--that call into question his impartiality in these appeals. (4) By its motion, the State challenges the fundamental legitimacy of the adjudication. While the timing of the State's motion is troubling because it was made only after a decision was rendered, the rules contemplate that the motion must be raised "promptly after the party has reason to believe that the justice or judge should not participate in deciding the case." In light of the panel reassignments and the inordinate delays in this Court's handling of these accelerated appeals, and in the absence of a response controverting the State's allegations, I can only conclude that the State has complied with the rule's requirement to raise its motion promptly. Moreover, in the absence of any disclosure by a judge of his involvement in related litigation--either at the time the parties submit their case to a panel of judges or at any time to his colleagues to allow them to properly assess any impartiality or appearance of impartiality--it would not be appropriate to place this burden upon the parties. Indeed, disclosure at the outset would ensure the transparency necessary for the parties to assess any bias and then move for disqualification or recusal or to waive any objection. (5) Without disclosure of any kind, the burden of tracking down information falls to the litigants. It is unrealistic and surely undesirable for a litigant who is notified of the identity of three members of an appellate panel to whom a case is submitted to then investigate any possible ground for disqualification or recusal. In this case, given the relationship between the parties, surely disclosure of pertinent information would have resolved the dilemma before us now in some manner--either by resolution in a timely fashion that would have saved the parties time and money, or by waiver. Although such disclosure is not mandatory, the ABA Model Code of Judicial Conduct provides that a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. A judge's obligation not to hear or decide matters in which there is a reasonable doubt concerning his impartiality applies regardless of whether a motion for recusal has been filed. One of the hallmarks of our judicial system is judicial integrity. Judicial decisions rendered in the face of uncontroverted allegations of bias, prejudice, or favoritism, undermine the integrity of the courts and thwart the very principles on which our judicial system is based. Sun Exploration & Prod. Co. v. Jackson, 783 S.W.2d 202, 206 (Tex. 1989) (Spears, J., concurring on reh'g). Public policy demands that any judge who sits in a case act with absolute impartiality. See Pendergrass v. Beale, 59 Tex. 446, 447 (1883). Beyond this, our rules and judicial canons require that a judge also appear to be impartial, so as not to call into question the fairness or integrity of the court. See Tex. R. Civ. P. 18b(2)(a); Texas Code of Judicial Conduct, Canons 1 & 2. Even when the circumstances giving rise to the question of impartiality are beyond the judge's volition or control, judges and courts should be vigilant in protecting the integrity of our judicial system. The rules do not require proof that a judge engaged in any biased or prejudicial conduct, but they do require the judge to recuse himself if "his impartiality might reasonably be questioned." Tex. R. Civ. P. 18b(2)(a) (emphasis added). Thus, the test is not our own subjective impression of the judge's ability to discharge his duties in an impartial manner. Rather, the polestar is an objective assessment of impartiality and the appearance of impartiality. Although the Court had written notice that I requested a response to the motion to recuse, and that I would write in dissent if we were not to request a response, this Court proceeded to deny the motion in a one sentence letter issued to the parties on October 8, 2008. In the absence of a response, and given the uncontroverted facts in the State's motion to recuse, I come to this decision reluctantly, but I must conclude that on this record Justice Waldrop's impartiality has "reasonably be[en] questioned" and, for these reasons, I respectfully dissent from the denial of the motion to recuse. __________________________________________ Jan P. Patterson, Justice Before Chief Justice Law, Justices Patterson, Puryear, Pemberton and Henson Filed: December 31, 2008 Publish 1. Because of the unexplained reassignment of these cases and their apparent consolidation before a different panel, I dissented from the Court's decision not to hear these appeals en banc. 2. It is questionable whether this communication satisfies the requirement of the rule. See Tex. R. App. P. 16.3(b) (requiring certification). Black's Law Dictionary defines the term "certify" to mean "to authenticate or verify in writing." See Black's Law Dictionary 220 (7th ed. 1999). At least one court of appeals to consider the matter has held that the filing of a motion to recuse initiates a "more formal process of consideration." See Williams v. Viswanathan, 65 S.W.3d 685, 687 (Tex. App.--Amarillo 2001, no pet.). In that case, the challenged Justice "certified the reasons why he does not believe he should recuse himself to the two members of the court who are not the subjects of the recusal motion and has stated in some detail his reasons for doing so." Id.; see also Rogers v. Bradley, 909 S.W.2d 872, 873 (Tex. 2004) (Gammage, J.) (declaration of recusal). 3. Although the State has not sought to disqualify Justice Waldrop, this Court has previously held that a judge is subject to disqualification if he advised a person who is not a named party, but whose interests are so aligned with a named party that the one stands in place of the other. See Williams v. Kirven, 532 S.W.2d 159, 160-61 (Tex. Civ. App.--Austin 1976, writ ref'd n.r.e.). 4. Cf. Tex. R. Prof. Conduct 1.06 (prohibiting lawyers from representing opposing sides in the same litigation); 1.10(e) (regarding successive government and private employment and prohibiting lawyer serving as public officer from participating in matter involving client that lawyer represented in private practice). 5. Rule 18b(5) provides that parties to a proceeding "may waive any ground for recusal after it is fully disclosed on the record." Tex. R. Civ. P. 18b(5).	{ "pile_set_name": "FreeLaw" }
13-4430-pr Peeler v. McGill 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of October, two thousand fourteen. PRESENT: JOHN M. WALKER, JR., JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x RUSSELL PEELER, Plaintiff-Appellant, -v.- No. 13-4430-pr JEFFREY E. MCGILL, WARDEN, ET AL., Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFF-APPELLANT: Russell Peeler, pro se, Somers, CT FOR DEFENDANTS-APPELLEES: Ann E. Lynch and Colleen B. Valentine, Assistant Attorneys General, for George Jepsen, Attorney General, Connecticut Office of the Attorney General, Hartford, CT Appeal from a judgment of the United States District Court for the District of Connecticut (Robert N. Chatigny, Judge). 1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED. Russell Peeler, proceeding pro se, appeals the District Court’s grant of summary judgment to defendants, a group of state corrections staff. The District Court concluded that Peeler had failed to exhaust his administrative remedies before bringing his 42 U.S.C. § 1983 complaint. We review an order granting summary judgment de novo, “‘resolving all ambiguities and drawing all permissible factual inferences in favor of the party against whom summary judgment is sought.’” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under section 1983 . . . , or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The Supreme Court has also held that the PLRA exhaustion requirement requires proper exhaustion, “which means using all steps that the agency holds out . . . so that the agency addresses the issues on the merits.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (internal quotation marks and parentheses omitted) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). That is, “prisoners must complete the administrative review process in accordance with the applicable procedural rules—rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation and quotation marks omitted). Upon an independent review of the record, we conclude that the District Court did not err in finding that Peeler failed to exhaust his available administrative remedies properly before filing his federal complaint, and that this failure should not be excused. We therefore affirm for substantially the same reasons stated in the District Court’s thorough decision. We have considered all of Peeler’s arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court. FOR THE COURT, Catherine O’Hagan Wolfe, Clerk of Court 2	{ "pile_set_name": "FreeLaw" }
44 Cal.App.3d 330 (1975) 118 Cal. Rptr. 567 MANTYE TUCKER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, JOHN MUIR HOSPITAL et al., Respondents. Docket No. 35223. Court of Appeals of California, First District, Division Four. January 7, 1975. 331 COUNSEL Maurice S. Marcus and Bertram Cohen for Petitioner. Hanna, Brophy, MacLean, McAleer & Jensen and Michael H. Young for Respondents. OPINION CHRISTIAN, J. Petitioner received compensation of $7,250 for an industrial injury pursuant to an award which had been issued on September 14, 1973. Respondent Argonaut neglected to include in its remittance the sum of $14.02 which had accrued as interest from the date of the award to the date of payment. On October 19, 1973, petitioner demanded payment of the $14.02; on November 28, 1973, Argonaut paid the interest. Petitioner then sought from the board a further award of 10 percent as a penalty under Labor Code section 5814 for unreasonable delay in paying interest on the award. Respondent board has refused to assess a 10 percent penalty for late payment of the $14.02 interest. (There is no claim that payment of the $7,250 principal benefit had been unreasonably delayed.) 332 Labor Code section 5800 provides that an award bears interest at the rate applicable to civil judgments "from the date of making and filing of an award." Such interest is part of the applicant's benefit, and unreasonable delay in payment results in imposition of a 10 percent penalty under Labor Code section 5814. (Laucirica v. Workmen's Comp. Appeals Bd. (1971) 17 Cal. App.3d 681 [95 Cal. Rptr. 219].) It appears that although computation and payment of interest is merely an arithmetical operation, and is required in every case by Labor Code section 5800, some compensation carriers are neglecting to pay interest until a separate demand therefor is made by the claimant. In Laucirica, supra, the Court of Appeal issued a writ of review directing the board to determine whether, in a group of four cases, payment of interest had been unreasonably delayed. Yet in the present case the board declined to determine whether the delay was unreasonable, taking the view that the amount in dispute was de minimis. (1) Although the amount of interest due in any single case may be small, the failure of the respondent carrier to take administrative measures to compute and pay interest on every award is not to be disregarded as de minimis. If it could be so disregarded, carriers could with advantage refrain in every case from paying interest unless a special demand was made, thus frustrating the intent of Labor Code section 5800. Interest should always be computed and paid with the payment of the principal award absent special circumstances. Despite the Laucirica holding, no excuse for delay was offered in the present case. The opinion and order denying imposition of penalty is annulled with directions to determine whether the failure of the carrier to pay interest with the award was unreasonable. Caldecott, P.J., and Rattigan, J., concurred.	{ "pile_set_name": "FreeLaw" }
572 F.Supp. 776 (1983) Elizabeth B. DUNCAN, et al. v. David B. POYTHRESS, et al. No. C81-199A. United States District Court, N.D. Georgia, Atlanta Division. October 6, 1983. 777 Kathleen Kessler, pro se. William F. Rucker, William B. Hollberg, David F. Walbert, Atlanta, Ga., for plaintiffs. Arthur K. Bolton, Former Atty. Gen., Michael J. Bowers, Atty. Gen., Patrick McKee, Hamilton Lokey, Atlanta, Ga., for defendants. ORDER RICHARD C. FREEMAN, District Judge. This civil rights action, 42 U.S.C. § 1983, is before the court on (1) the application of plaintiff Kathleen Kessler for attorney's fees; (2) plaintiff Kessler's motion to compel answers to certain interrogatories served on the defendants as part of discovery related to the attorney's fees issue; (3) defendants' motion for a protective order with regard to those interrogatories; (4) defendants' motion to review taxation of costs; and (5) the application of William Hollberg for attorney's fees. I. Plaintiff Kessler's Application for Attorney's Fees and Related Discovery Motions Plaintiff Kessler's motion for an award of attorney's fees presents a question that has been alluded to but not decided by the courts of this circuit: whether a district court may award attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, to a pro se litigant who is also an attorney. A prevailing party will be awarded attorney's fees from the losing party only upon a 778 clear and specific showing that Congress has provided for such an award by statute. Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 260, 95 S.Ct. 1612, 1623, 44 L.Ed.2d 141 (1975). In section 1988, Congress has authorized district courts to award reasonable attorney's fees to the prevailing party in civil rights litigation. However, section 1988 does not expressly either provide for or prohibit an award of attorney's fees to pro se litigants. In Cofield v. City of Atlanta, 648 F.2d 986, 987-88 (5th Cir.1981) (Unit B), the former Fifth Circuit held that a prevailing pro se litigant cannot recover attorney's fees under section 1988. Although the court in Cofield noted that the plaintiff was not an attorney, id. at 987, the court gave no indication whether its holding applied to both pro se attorney litigants and pro se non-attorney litigants.[1] In light of the holding of Cofield, the issue presented in the instant case is whether in enacting section 1988 Congress intended to draw a distinction between pro se attorney litigants and pro se non-attorney litigants. Nothing in the legislative history of section 1988 discloses such an intention. The purpose of section 1988 was summarized in Cofield as follows: Elsewhere we have stated that an act allowing attorney's fees is "not passed for the benefit of attorneys but to enable litigants to obtain competent counsel...." Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719 (5th Cir. 1974). Section 1988 was enacted two years after the rendering of the decision in Johnson v. Georgia Highway Express, and the legislative history of the act echoes our statement in that case. Congress specifically approved the standards established in Johnson v. Georgia Highway Express and its legacy, pointing out that "[t]hese cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls...." S.Rep. No. 94-1011, 94th Cong.2d Sess. 6, reprinted in [1976] U.S. Code Cong. & Ad.News 5908, 5913. Congress thought that awards of attorney's fees may be necessary because "[i]n many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer." Id. at 2, reprinted in [1976] U.S.Code Cong. & Ad.News, at 5910. "[I]f our civil rights laws are not to become mere hollow pronouncements which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases." Id. Thus, it is clear to us that the purpose of section 1988 is not to compensate a worthy advocate but to enable and encourage a wronged person to retain a lawyer. It is apparent that Congress thought that such people ought to have access to legal representation. 648 F.2d at 987-88 (emphasis supplied). See also Grooms v. Snyder, 474 F.Supp. 380 (N.D.Ind.1979). Thus, section 1988 is designed to assist average citizens who, were it not for the attorney's fees provision, would lack the ability to effectively pursue meritorious complaints. As the Senate noted in its report, civil rights laws "depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which those laws contain." S.Rep. No. 94-1011, 94th Cong.2d Sess. 6, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5910. The primary concern of Congress was to increase the level of 779 competence with which such complaints are prosecuted, not to make whole those who have been put to the time and trouble of advocating their own rights. See Owens-El v. Robinson, 694 F.2d 941, 942-43 (3d Cir. 1982). The court notes that certain statements within the legislative history of section 1988 support the conclusion that the attorney's fees provision was designed, at least in part, to allow successful plaintiffs to recoup the costs of asserting their rights. For example, the Senate Report noted that [i]n many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court. Id. at 5910. Were this court writing on a clean slate, perhaps such a statement would persuade the court that section 1988 was designed to serve a make-whole purpose as well and that section 1988 permits a grant of the award sought by plaintiff Kessler in the instant action. However, the court sees no way to reconcile the allowance of such a compensatory award of fees to a pro se attorney litigant with the prohibition in Cofield of the recovery of such an award by one who happens not to be an attorney. Plaintiff Kessler points out that the distinction between pro se attorney and non-attorney litigants has been drawn by the present Fifth Circuit in a case involving attorney's fees provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(E), and the Privacy Act, 5 U.S.C. § 552a(g)(3)(B).[2] In Cazalas v. United States Department of Justice, 709 F.2d 1051 (5th Cir.1983), that court permitted an award of attorney's fees to a pro se attorney litigant who had prevailed on her claims under both acts. The Fifth Circuit distinguished its holding in Cazalas from the holding of the former Fifth Circuit in Barrett v. Bureau of Customs, 651 F.2d 1087 (5th Cir.1981), denying fees under the FOIA to a pro se non-attorney litigant: Finally, the government contends that, since the Court has already refused to grant fees to pro se non-attorney litigants based on foregone income, there is no principled basis for reimbursing attorneys for income lost as a result of self-representation. This argument also fails. There are several commendable reasons for making the distinction urged by appellant. Congress sought to encourage legal representation; thus it makes sense to compensate lawyers for this work. Also, in compensating a pro se litigant, the only real measure of approximating fees incurred is the opportunity lost, or work foregone, due to the representation. This is relatively simple to value where the pro se litigant is an attorney, for the work foregone is of the same nature as that actually performed. Such is not the case for non-attorney pro se litigants. 709 F.2d at 1057 (citations omitted). The Cazalas court also noted that the FOIA and Privacy Act attorney's fees provisions not only act as incentives for private individuals to pursue vigorously their claims for information, but also serve deterrent and punitive purposes as well. Id. The opinion in Cazalas, however, falls short of supporting the drawing of a similar 780 distinction in the instant case, for two reasons. First, the court in Cofield expressly disapproved of the application of FOIA cases as controlling authority in deciding attorney's fees requests brought under section 1988: In any event, we do not find these [FOIA] cases persuasive authority on the issue before us here. The history, language, and purpose of the [FOIA] differ significantly from those of the civil rights statutes; those differences often render decisions under one of the statutes inapposite to cases arising under the other. 648 F.2d at 988.[3] The court noted particularly that unlike the FOIA and Privacy Act provisions, section 1988 does not serve a punitive function. Id. at 988 n. 4. Second, the Cazalas court's attempt to distinguish between the two classes of pro se litigants is not wholly convincing. Although it is true that a district court can readily calculate the reasonable value of representation by the pro se attorney litigant by examining the amount of work foregone, it is also true that in many, if not all, cases some nonarbitrary value can be assigned to the work foregone by a pro se non-attorney litigant. A plumber, teacher, or dishwasher, for example, could in most instances provide information from which a court could calculate the income foregone as the result of that person's work as a pro se litigant in a civil rights case. Moreover, while it does "make sense" for Congress to compensate lawyers as a means of encouraging legal representation, it makes equally good sense, especially given the Cofield holding, to conclude that Congress intended to provide awards only for plaintiffs who actually seek and obtain independent representation.[4] For the above reasons, the court concludes that it lacks the discretion to award attorney's fees to plaintiff Kessler under section 1988. The court therefore will deny her request. It follows from this denial that the pending discovery motions, which relate only to the amounts sought in her attorney's fees request, are moot. II. Defendants' Objections to Plaintiffs' Bill of Costs Four bills of costs have been filed in this action since this court entered its order of February 2, 1983. William Rucker, one of the plaintiffs' attorneys, filed his bill of costs on February 14, 1983. Because it appears that Rucker has settled his claims for both costs and attorney's fees, releasing defendants from "any and all obligations to [him] arising out of the Order of the Court of April 29, 1981," see Settlement and Satisfaction of Attorney's Fees, filed May 3, 1983, the court will deny as moot the defendants' motion with respect to Rucker's bill of costs. Plaintiff Kessler filed her first bill of costs on February 15, 1983. On two occasions since, she has submitted "amended" bills of costs, adding to her claims various expenses incurred in attempting to recover an award of attorney's fees. In light of this court's ruling that she is not entitled 781 to such an award, these additional items may not be taxed as costs. Accordingly, the court will strike the plaintiff's amended and second amended bills of costs and will limit plaintiff Kessler's recovery of costs to any items correctly taxed in her original bill of costs of February 15, 1983. Plaintiff Kessler may not tax as costs the fees paid to the clerk of this court at the initiation of this lawsuit on January 30, 1981. Those fees were listed in the bills of costs filed on May 29, 1981, and taxed on June 5, 1981. Moreover, plaintiff Kessler's bill of costs of February 15, 1983, was filed long after the entry of final judgment on April 29, 1981, and the present filing of her bill of costs as to items that were then taxable is untimely. See Local Court Rule 351.1. The stipulation of deferral cited by plaintiff Kessler on its face applies only to the issue of attorney's fees and does not support her assertion that the defendants agreed to defer consideration of other costs. Thus, the only costs taxable in the bill of costs of February 15, 1983, are those costs expended by the plaintiffs in opposing the defendants' motion for relief from judgment. One item listed on the bill of costs, for printing a brief filed in the Supreme Court, is clearly not taxable in this or any other court. See Sup.Ct.R. 50.3. However, the record does not permit the court to determine whether the remaining items are taxable. Defendants charge generally that many of the expenses listed by plaintiff may not be taxed. They do not address specifically each of the items listed. Nor have they discussed any item in light of the holding of the Eleventh Circuit in Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1191 (11th Cir.1983), that "with the exception of routine office overhead normally absorbed by the practicing attorney, all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case may be taxed as costs under section 1988." Id. at 1192. Plaintiff Kessler's filings have been no more elucidating. Although she has provided the court with photocopies of cancelled checks and copies of bills for particular expenses, she has not demonstrated that each was necessary to the plaintiff's opposition to the motion for relief from judgment. While it appears that a few of these expenses, dating from 1981 and early 1982, can bear no relation to the defendants' motion for relief from judgment, the relevance or necessity of most of the items cannot be determined. In light of the above, the court will defer further consideration of the instant motion and will allow the parties an opportunity to supplement their filings with regard to the remaining items listed. Cf. Johnson v. University College of the University of Alabama in Birmingham, 706 F.2d 1205, 1209 (11th Cir.1983). Plaintiff Kessler will be permitted thirty (30) days from the date of entry of this order within which to file any such supplement. Defendants will be permitted thirty (30) days from receipt of any such supplement within which to file a response. III. William Hollberg's Application for Attorney's Fees By letter dated September 17, 1983, William Hollberg has informed the court that the parties have reached agreement on the fees to be paid to Mr. Hollberg for his participation on behalf of the plaintiffs in this action. The court therefore will deem Mr. Hollberg's application withdrawn. * * Accordingly, plaintiff Kessler's application for attorney's fees is DENIED. Plaintiff Kessler's motion to compel answers to interrogatories and the defendants' motion for a protective order are DENIED as moot. Defendants' motion for review of taxation of costs is DENIED as moot as to review of the bill of costs submitted by Mr. Rucker. As to the bills of costs submitted by plaintiff Kessler, the defendants' motion is GRANTED IN PART with respect to her amended and second amended bills of costs and with respect to certain items in the original bill of costs, identified above in this *782 order. Further consideration of defendants' motion with respect to review of the taxation of the remaining items is DEFERRED. The parties are PERMITTED to supplement their filings with respect to the remaining items as set forth above in Part II of this order. The application of William Hollberg for attorney's fees is DEEMED withdrawn. SO ORDERED, this 6th day of October, 1983. NOTES [1] In a subsequent opinion in a case involving a request for attorney's fees under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E), and the Privacy Act, 5 U.S.C. § 552a(g)(3)(B), Cazalas v. United States Dept. of Justice, 709 F.2d 1051 (5th Cir.1983), the present Fifth Circuit noted that the question whether a pro se attorney litigant could recover an attorney's fees award under section 1988 was "left open" in Cofield. 709 F.2d at 1055 n. 8. Notwithstanding the present Fifth Circuit's dictum in Cazalas, however, the failure of the court in Cofield to expressly limit its holding to one class of pro se litigants imparts a strong presumption against allowing an award for one class but not the other. [2] In several other cases involving attorney's fees requests, courts have noted in passing that the prevailing pro se plaintiff seeking attorney's fees was not a lawyer. E.g., Wolfel v. United States, 711 F.2d 66, 68 (6th Cir.1983); Owens-El v. Robinson, 694 F.2d 941, 942 (3d Cir.1982); Pitts v. Vaughn, 679 F.2d 311, 313 (3d Cir.1982); Clarkson v. IRS, 678 F.2d 1368, 1371 n. 3 (11th Cir.1982); Barrett v. Bureau of Customs, 651 F.2d 1087, 1090 (5th Cir.1981) (Unit A); Crooker v. United States Dept. of Justice, 632 F.2d 916, 921 (1st Cir.1980); Hannon v. Security Nat'l Bank, 537 F.2d 327, 328-29 (9th Cir.1976). Although these courts have noted, and thus lent some support to the drawing of, the distinction between pro se lawyer and non-lawyer litigants, none of these courts faced the question presented here whether to permit awards to the one class but not the other and thus their comments in this regard are not particularly helpful. [3] For the same reasons, the decisions of state courts are not persuasive. Moreover, state courts have failed to reach consensus as to the grant or denial of attorney's fees to attorneys who represent themselves. E.g., compare Winer v. Jonal Corp., 169 Mont. 247, 545 P.2d 1094 (1976), and Wells v. Whinery, 34 Mich.App. 626, 192 N.W.2d 81 (1971) (fee awards granted), with O'Connell v. Zimmerman, 157 Cal. App.2d 330, 321 P.2d 161 (1958), and Los Angeles v. Hunt, 8 Cal.App.2d 401, 47 P.2d 1075 (1935) (no legal fees actually incurred and therefore request for award denied). [4] Equally unpersuasive is the decision of the Ninth Circuit in Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980), allowing an award of attorney's fees to pro se attorney defendants who had demonstrated that the plaintiff's civil rights suit had been brought in bad faith and vexatiously. The Ninth Circuit has apparently not addressed the question whether any pro se plaintiff or a pro se non-attorney defendant in such an action can recover such an award. Cf. Hannon v. Security Nat'l Bank, 537 F.2d at 328-29 (pro se non-attorney may not recover fees under Truth in Lending Act, 15 U.S.C. § 1640(a)). As the Ninth Circuit noted in Ellis, an award of fees for a defendant serves different purposes from those served by an award in favor of a prevailing plaintiff. 625 F.2d at 230-31; see Dosier v. Miami Valley Broadcasting Corp., 656 F.2d 1295, 1301 (9th Cir.1981).	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 91-3322 _____________________ FLORENCE B. CORCORAN Wife of/and WAYNE D. CORCORAN, Plaintiffs-Appellants, v. UNITED HEALTHCARE, INC., and BLUE CROSS and BLUE SHIELD OF ALABAMA, INC., Defendants-Appellees. _________________________________________________________________ Appeal from the United States District Court for the Eastern District of Louisiana _________________________________________________________________ (June 26, 1992) Before THORNBERRY, KING, and DeMOSS, Circuit Judges. KING, Circuit Judge: This appeal requires us to decide whether ERISA pre-empts a state-law malpractice action brought by the beneficiary of an ERISA plan against a company that provides "utilization review" services to the plan. We also address the availability under ERISA of extracontractual damages. The district court granted the defendants' motion for summary judgment, holding that ERISA both pre-empted the plaintiffs' medical malpractice claim and precluded them from recovering emotional distress damages. We affirm. I. BACKGROUND The basic facts are undisputed. Florence Corcoran, a long- time employee of South Central Bell Telephone Company (Bell), became pregnant in early 1989. In July, her obstetrician, Dr. Jason Collins, recommended that she have complete bed rest during the final months of her pregnancy. Mrs. Corcoran applied to Bell for temporary disability benefits for the remainder of her pregnancy, but the benefits were denied. This prompted Dr. Collins to write to Dr. Theodore J. Borgman, medical consultant for Bell, and explain that Mrs. Corcoran had several medical problems which placed her "in a category of high risk pregnancy." Bell again denied disability benefits. Unbeknownst to Mrs. Corcoran or Dr. Collins, Dr. Borgman solicited a second opinion on Mrs. Corcoran's condition from another obstetrician, Dr. Simon Ward. In a letter to Dr. Borgman, Dr. Ward indicated that he had reviewed Mrs. Corcoran's medical records and suggested that "the company would be at considerable risk denying her doctor's recommendation." As Mrs. Corcoran neared her delivery date, Dr. Collins ordered her hospitalized so that he could monitor the fetus around the clock.1 Mrs. Corcoran was a member of Bell's Medical Assistance Plan (MAP or "the Plan"). MAP is a self-funded welfare benefit plan which provides medical benefits to eligible Bell employees. It 1 This was the same course of action Dr. Collins had ordered during Mrs. Corcoran's 1988 pregnancy. In that pregnancy, Dr. Collins intervened and performed a successful Caesarean section in the 36th week when the fetus went into distress. 2 is administered by defendant Blue Cross and Blue Shield of Alabama (Blue Cross) pursuant to an Administrative Services Agreement between Bell and Blue Cross. The parties agree that it is governed by ERISA.2 Under a portion of the Plan known as the "Quality Care Program" (QCP), participants must obtain advance approval for overnight hospital admissions and certain medical procedures ("pre-certification"), and must obtain approval on a continuing basis once they are admitted to a hospital ("concurrent review"), or plan benefits to which they otherwise would be entitled are reduced. QCP is administered by defendant United HealthCare (United) pursuant to an agreement with Bell. United performs a form of cost-containment services that has commonly become known as "utilization review." See Blum, An Analysis of Legal Liability in Health Care Utilization Review and Case Management, 26 Hous. L. Rev. 191, 192-93 (1989) (utilization review refers to "external evaluations that are based on established clinical criteria and are conducted by third-party payors, purchasers, or health care organizers to evaluate the appropriateness of an episode, or series of episodes, of medical care."). The Summary Plan Description (SPD) explains QCP as follows: The Quality Care Program (QCP), administered by United HealthCare, Inc., assists you and your covered dependents in securing quality medical care according to the provisions of the Plan while helping reduce risk and expense due to unnecessary hospitalization and surgery. They do this by providing you with information which will permit you (in 2 Employee Retirement Income Security Act of 1974, Pub. L. 93-406, 88 Stat. 829, 29 U.S.C. §§ 1001-1461. 3 consultation with your doctor) to evaluate alternatives to surgery and hospitalization when those alternatives are medically appropriate. In addition, QCP will monitor any certified hospital confinement to keep you informed as to whether or not the stay is covered by the Plan. Two paragraphs below, the SPD contains this statement: When reading this booklet, remember that all decisions regarding your medical care are up to you and your doctor. It goes on to explain that when a beneficiary does not contact United or follow its pre-certification decision, a "QCP Penalty" is applied. The penalty involves reduction of benefits by 20 percent for the remainder of the calendar year or until the annual out-of-pocket limit is reached. Moreover, the annual out-of-pocket limit is increased from $1,000 to $1,250 in covered expenses, not including any applicable deductible. According to the QCP Administrative Manual, the QCP penalty is automatically applied when a participant fails to contact United. However, if a participant complies with QCP by contacting United, but does not follow its decision, the penalty may be waived following an internal appeal if the medical facts show that the treatment chosen was appropriate. A more complete description of QCP and the services provided by United is contained in a separate booklet. Under the heading "WHAT QCP DOES" the booklet explains: Whenever your doctor recommends surgery or hospitalization for you or a covered dependent, QCP will provide an independent review of your condition (or your covered dependent's). The purpose of the review is to assess the need for surgery or hospitalization and to determine the appropriate length of stay for a hospitalization, based on nationally accepted medical guidelines. As part of the review process, QCP will discuss with your doctor the 4 appropriateness of the treatments recommended and the availability of alternative types of treatments -- or locations for treatment -- that are equally effective, involve less risk, and are more cost effective. The next paragraph is headed "INDEPENDENT, PROFESSIONAL REVIEW" and states: United Health Care, an independent professional medical review organization, has been engaged to provide services under QCP. United's staff includes doctors, nurses, and other medical professionals knowledgeable about the health care delivery system. Together with your doctor, they work to assure that you and your covered family members receive the most appropriate medical care. At several points in the booklet, the themes of "independent medical review" and "reduction of unnecessary risk and expense" are repeated. Under a section entitled "THE QUALITY CARE PROGRAM...AT A GLANCE" the booklet states that QCP "Provides independent, professional review when surgery or hospitalization is recommended -- to assist you in making an enlightened decision regarding your treatment." QCP "provides improved quality of care by eliminating medically unnecessary treatment," but beneficiaries who fail to use it "may be exposed to unnecessary health risks. . . ." Elsewhere, in the course of pointing out that studies show one-third of all surgery may be unnecessary, the booklet explains that programs such as QCP "help reduce unnecessary and inappropriate care and eliminate their associated costs." Thus, "one important service of QCP will help you get a second opinion when your doctor recommends surgery." The booklet goes on to describe the circumstances under which QCP must be utilized. When a Plan member's doctor recommends admission to the hospital, 5 [i]ndependent medical professionals will review, with the patient's doctor, the medical findings and the proposed course of treatment, including the medically necessary length of confinement. The Quality Care Program may require additional tests or information (including second opinions), when determined necessary during consultation between QCP professionals and the attending physician. When United certifies a hospital stay, it monitors the continuing necessity of the stay. It also determines, for certain medical procedures and surgeries, whether a second opinion is necessary, and authorizes, where appropriate, certain alternative forms of care. Beneficiaries are strongly encouraged to use QCP to avoid loss of benefits: "'fully using' QCP means following the course of treatment that's recommended by QCP's medical professionals." In accordance with the QCP portion of the plan, Dr. Collins sought pre-certification from United for Mrs. Corcoran's hospital stay. Despite Dr. Collins's recommendation, United determined that hospitalization was not necessary, and instead authorized 10 hours per day of home nursing care.3 Mrs. Corcoran entered the hospital on October 3, 1989, but, because United had not pre- certified her stay, she returned home on October 12. On October 25, during a period of time when no nurse was on duty, the fetus went into distress and died. Mrs. Corcoran and her husband, Wayne, filed a wrongful death action in Louisiana state court alleging that their unborn child died as a result of various acts of negligence committed by Blue Cross and United. Both sought damages for the lost love, society 3 The record does not reveal the name of the person or persons at United that made the decision concerning Mrs. Corcoran. 6 and affection of their unborn child. In addition, Mrs. Corcoran sought damages for the aggravation of a pre-existing depressive condition and the loss of consortium caused by such aggravation, and Mr. Corcoran sought damages for loss of consortium. The defendants removed the action to federal court on grounds that it was pre-empted by ERISA4 and that there was complete diversity among the parties. Shortly thereafter, the defendants moved for summary judgment. They argued that the Corcorans' cause of action, properly characterized, sought damages for improper handling of a claim from two entities whose responsibilities were simply to administer benefits under an ERISA-governed plan. They contended that their relationship to Mrs. Corcoran came into existence solely as a result of an ERISA plan and was defined entirely by the plan. Thus, they urged the court to view the claims as "relating to" an ERISA plan, and therefore within the broad scope of state law claims pre-empted by the statute. In their opposition to the motion, the Corcorans argued that "[t]his case essentially boils down to one for malpractice against United HealthCare. . . ." They contended that under this court's analysis in Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456 (5th Cir. 1986), cert. denied, 479 U.S. 1034 (1987), their cause of action must be 4 See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987) (because ERISA pre-emption is so comprehensive, pre- emption defense provides sufficient basis for removal to federal court notwithstanding "well-pleaded complaint" rule). 7 classified as a state law of general application which involves an exercise of traditional state authority and affects principal ERISA entities in their individual capacities. This classification, they argued, together with the fact that pre- emption would contravene the purposes of ERISA by leaving the Corcorans without a remedy, leads to the conclusion that the action is permissible notwithstanding ERISA. The district court, relying on the broad ERISA pre-emption principles developed by the Supreme Court and the Fifth Circuit, granted the motion. The court noted that ERISA pre-emption extends to state law claims "'of general application,' including tort claims where ERISA ordinarily plays no role in the state law at issue." (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) and Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)). The court found that the state law claim advanced by the Corcorans "relate[d] to" the employee benefit plan (citing the statutory pre-emption clause, ERISA § 514(a)), and therefore was pre-empted, because [b]ut for the ERISA plan, the defendants would have played no role in Mrs. Corcoran's pregnancy; the sole reason the defendants had anything to do with her pregnancy is because the terms of the ERISA plan directed Mrs. Corcoran to the defendants (or at least to United HealthCare) for approval of coverage of the medical care she initially sought. The court held that, because the ERISA plan was the source of the relationship between the Corcorans and the defendants, the Corcorans' attempt to distinguish United's role in paying claims from its role as a source of professional medical advice was unconvincing. 8 The Corcorans filed a motion for reconsideration under Rule 59 of the Federal Rules of Civil Procedure. They did not ask the district court to reconsider its pre-emption ruling, but instead contended that language in the district court's opinion had implicitly recognized that they had a separate cause of action under ERISA's civil enforcement mechanism, § 502(a)(3).5 They argued that the Supreme Court's decision in Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134 (1985), did not foreclose the possibility that compensatory damages such as they sought constituted "other appropriate equitable relief" available under § 502(a)(3) for violations of ERISA or the terms of an ERISA plan. The district court denied the motion. Although the court recognized that there was authority to the contrary, it pointed out that "[t]he vast majority of federal appellate courts have . . . held that a beneficiary under an ERISA health plan may not recover under section 509(a)(3) [sic] of ERISA compensatory or consequential damages for emotional distress or other claims beyond medical expenses covered by the plan." (citations omitted). Moreover, the court pointed out, a prerequisite to recovery under § 502(a)(3) is a violation of the terms of ERISA itself. ERISA does not place upon the defendants a substantive 5 The district court had stated that "[b]ecause the plaintiffs concede that the defendants have fully paid any and all medical expenses that Mrs. Corcoran actually incurred that were covered by the plan, the plaintiffs have no remaining claims under ERISA." In a footnote, the court indicated that Mrs. Corcoran could have (1) sued under ERISA, before entering the hospital, for a declaratory judgment that she was entitled to hospitalization benefits; or (2) gone into the hospital, incurred out-of-pocket expenses, and sued under ERISA for these expenses. 9 responsibility in connection with the provision of medical advice which, if breached, would support a claim under § 502(a)(3). The court entered final judgment in favor of Blue Cross and United, and this appeal followed. II. STANDARD OF REVIEW Because this case is on appeal from the district court's grant of summary judgment, our review is plenary. Dorsett v. Board of Trustees for State Colleges & Universities, 940 F.2d 121, 123 (5th Cir. 1991). We view the evidence in the light most favorable to the nonmoving party, id., and must affirm if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). As this case currently stands, the parties dispute not the relevant facts, but the legal conclusions that must be applied to those facts. As the Corcorans put it, "[t]he question on appeal is whether the plaintiffs are afforded any relief, under state law or ERISA, for damages caused by [the defendants' actions]." III. PRE-EMPTION OF THE STATE LAW CAUSE OF ACTION A. The Nature of the Corcorans' State Law Claims The Corcorans' original petition in state court alleged that acts of negligence committed by Blue Cross and United caused the 10 death of their unborn child. Specifically, they alleged that Blue Cross wrongfully denied appropriate medical care, failed adequately to oversee the medical decisions of United, and failed to provide United with Mrs. Corcoran's complete medical background. They alleged that United wrongfully denied the medical care recommended by Dr. Collins and wrongfully determined that home nursing care was adequate for her condition. It is evident that the Corcorans no longer pursue any theory of recovery against Blue Cross. Although they mention in their appellate brief the fact that they asserted a claim against Blue Cross, they challenge only the district court's conclusion that ERISA pre-empts their state law cause of action against United.6 We, therefore, analyze solely the question of pre-emption of the claims against United. See Hulsey v. State of Texas, 929 F.2d 168, 172 (5th Cir. 1991) (issues stated but not briefed need not be considered on appeal). The claims against United arise from a relatively recent phenomenon in the health care delivery system -- the prospective review by a third party of the necessity of medical care. Systems of prospective and concurrent review, rather than traditional retrospective review, were widely adopted throughout the 1980s as a method of containing the rapidly rising costs of health care. Blum, supra, at 192; Furrow, Medical Malpractice and Cost Containment: Tightening the Screws, 36 Case Western L. 6 They also do not mention Blue Cross when arguing that extracontractual damages are available under § 502(a)(3). 11 Rev. 985, 986-87 (1986). Under the traditional retrospective system (also commonly known as the fee-for-service system), the patient obtained medical treatment and the insurer reviewed the provider's claims for payment to determine whether they were covered under the plan. Denial of a claim meant that the cost of treatment was absorbed by an entity other than the one designed to spread the risk of medical costs -- the insurer. Congress's adoption in 1983 of a system under which hospitals are reimbursed for services provided to Medicare patients based upon average cost calculations for patients with particular diagnoses spurred private insurers to institute similar programs in which prospective decisions are made about the appropriate level of care. Although plans vary, the typical prospective review system requires some form of pre-admission certification by a third party (e.g., the HMO if an HMO- associated doctor provides care; an outside organization such as United if an independent physician provides care) before a hospital stay. Concurrent review involves the monitoring of a hospital stay to determine its continuing appropriateness. See generally, Blum, supra, at 192-93; Tiano, The Legal Implications of HMO Cost Containment Measures, 14 Seton Hall Legis. J. 79, 80 (1990). As the SPD makes clear, United performs this sort of prospective and concurrent review (generically, "utilization review") in connection with, inter alia, the hospitalization of Bell employees. 12 The Corcorans based their action against United on Article 2315 of the Louisiana Civil Code, which provides that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Article 2315 provides parents with a cause of action for the wrongful death of their unborn children, Danos v. St. Pierre, 402 So. 2d 633, 637-38 (La. 1981), and also places liability on health care providers when they fail to live up to the applicable standard of care. Chivleatto v. Divinity, 379 So. 2d 784, 786 (La. Ct. App. 4th Dist. 1979). Whether Article 2315 permits a negligence suit against a third party provider of utilization review services, however, has yet to be decided by the Louisiana courts. The potential for imposing liability on these entities is only beginning to be explored, with only one state explicitly permitting a suit based on a utilization review company's allegedly negligent decision about medical care to go forward. Wilson v. Blue Cross of So. California, 22 Cal. App. 3d 660, 271 Cal. Rptr. 876, 883 (1990) (reversing summary judgment for utilization review company which determined that further hospitalization was not necessary; ERISA not implicated);7 see also Wickline v. State of California, 192 Cal. App. 3d 1630, 239 Cal. Rptr. 810, 819 (1986) (stating, in dicta, that negligent implementation of cost containment mechanisms such as utilization 7 The case went to trial, but the plaintiff settled with Western Medical, the provider of utilization review services. See Milt Freudenheim, When Treatment and Costs Collide, N.Y. Times, Apr. 28, 1992, at C2 col. 1. 13 review can lead to liability; ERISA not implicated), cert. granted, 727 P.2d 753, 231 Cal. Rptr. 560, review dismissed, cause remanded, 741 P.2d 613, 239 Cal. Rptr. 805 (1987).8 In the absence of clear Louisiana authority for their lawsuit, the Corcorans rely on Green v. Walker, 910 F.2d 291 (5th Cir. 1990). We held in Green that Article 2315 imposes a duty of due care upon physicians hired by employers to conduct employment-related exams on employees. Id. at 296. The cause of action recognized in Green, however, is not analogous to the 8 Numerous commentators have weighed in on the propriety of liability for utilization review decisions. See e.g., Macaulay, Health Care Cost Containment and Medical Malpractice: On a Collision Course, 19 Suffolk U.L. Rev. 91, 106-107 (1986) (arguing for higher standard of negligence in "Wickline suits"); Morreim, Cost Containment and the Standard of Medical Care, 75 Calif. L. Rev. 1719, 1749-50 (1987) (arguing that liability should be limited because patient's physician makes the ultimate decision about treatment); Note, Paying the Piper: Third Party Payor Liability for Medical Treatment Decisions, 25 Ga. L. Rev. 861, 907-911 (1991) (by David Griner) (arguing that without liability for negligence in utilization review decisions, third party payors have incentives to control costs but not to use reasonable care in the decisionmaking process); Mellas, Adapting the Judicial Approach to Medical Malpractice Claims Against Physicians to Reflect Medicare Cost Containment Measures, 62 U. Colo. L. Rev. 287, 316 (1991) (liability will reduce possibility that poor medical decisions will be made in order to cut costs). Even if courts put their imprimatur on negligence actions against utilization review organizations, plaintiffs would face difficulties in proving that the organization's decision was a significant cause of an injury. See Wickline, 239 Cal. Rptr. at 819 (decision of doctor to discharge patient after Medi-Cal (state utilization review body) would not authorize additional hospital stay, not decision of Medi-Cal on appropriate length of stay, is act upon which liability should be premised); Note, supra, 25 Ga. L. Rev. at 902-05 (discussing problem of proving that utilization review organization's decision is proximate cause of injury); but see Wilson, 271 Cal. Rptr. at 883 (finding that plaintiffs had adduced enough evidence as to causal effect of utilization review company's decision on decedent's suicide to avoid summary judgment). 14 cause of action brought against United because Green involved an actual physical examination by a doctor hired by an employer, not the detached decision of a utilization review company. Despite the lack of clear Louisiana authority supporting the Corcorans' theory of recovery against United, we can resolve the pre-emption question presented in this appeal. The law in this area is only beginning to develop, and it does not appear to us that Louisiana law clearly forecloses the possibility of recovery against United. Thus, assuming that on these facts the Corcorans might be capable of stating a cause of action for malpractice,9 our task now is to determine whether such a cause of action is pre- empted by ERISA. B. Principles of ERISA Pre-emption The central inquiry in determining whether a federal statute pre-empts state law is the intent of Congress. FMC Corp. v. Holliday, 111 S. Ct. 403, 407 (1990); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985). In performing this analysis we begin with any statutory language that expresses an intent to pre-empt, but we look also to the purpose and structure of the statute as a whole. FMC Corp., 111 S. Ct. at 407; Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478, 482 (1990). ERISA contains an explicit pre-emption clause, which provides, in relevant part: 9 If the Corcorans could sue United on a negligence theory, it would appear that they could recover damages incurred in connection with the death of their unborn child. Danos, 402 So. 2d at 637. 15 Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a). . . . ERISA § 514(a).10 It is by now well-established that the "deliberately expansive" language of this clause, Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 42, 46 (1987), is a signal that it is be construed extremely broadly. See FMC Corp., 111 S. Ct. at 407 ("[t]he pre-emption clause is conspicuous for its breadth"); Ingersoll-Rand, 111 S. Ct. at 482.11 The key words 10 Statutory, decisional and all other forms of state law are included within the scope of the preemption clause. ERISA § 514(c)(1) ("The term 'State law' includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State"). Section 514(b)(2)(A) exempts certain state laws from pre-emption, but none of these exemptions is applicable here. 11 The legislative history indicates that Congress intended the preemption provision to be applied expansively. In Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), the Court explained: The bill that became ERISA originally contained a limited pre-emption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Conference Committee rejected those provisions in favor of the present language, and indicated that section's pre-emptive scope was as broad as its language. See H.R. Conf. Rep. No. 93-1280, p. 383 (1974); S. Conf. Rep. No. 93-1090, p. 383 (1974). 463 U.S. at 98. Senator Williams, one of ERISA's sponsors, remarked: It should be stressed that with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the conference substitute are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans. This principle is intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law. 16 "relate to" are used in such a way as to expand pre-emption beyond state laws that relate to the specific subjects covered by ERISA, such as reporting, disclosure and fiduciary obligations. Id. at 482. Thus, state laws "relate[] to" employee benefit plans in a much broader sense -- whenever they have "a connection with or reference to such a plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). This sweeping pre-emption of state law is consistent with Congress's decision to create a comprehensive, uniform federal scheme for the regulation of employee benefit plans. See Ingersoll-Rand, 111 S. Ct. at 482; Pilot Life, 481 U.S. at 45-46. The most obvious class of pre-empted state laws are those that are specifically designed to affect ERISA-governed employee benefit plans. See Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 829-30 (1988) (statute explicitly barring garnishment of ERISA plan funds is pre-empted); Ingersoll-Rand, 111 S. Ct. at 483 (cause of action allowing recovery from employer when discharge is premised upon attempt to avoid contributing to pension plan is pre-empted). But a law is not saved from pre-emption merely because it does not target employee benefit plans. Indeed, much pre-emption litigation involves laws of general application which, when applied in particular settings, can be said to have a connection with or a reference to an ERISA plan. See Pilot Life, 481 U.S. at 47-48 (common law 120 Cong. Rec. 29933 (1974). See also Pilot Life, 481 U.S. at 46. 17 tort and contract causes of action seeking damages for improper processing of a claim for benefits under a disability plan are pre-empted); Shaw, 463 U.S. at 95-100 (statute interpreted by state court as prohibiting plans from discriminating on the basis of pregnancy is pre-empted); Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1218 (5th Cir. 1992) (common law fraud and negligent misrepresentation claims that allege reliance on agreements or representations about the coverage of a plan are pre-empted), petition for cert. filed 60 U.S.L.W. 3829 (U.S. May 26, 1992) (No. 91-1881); Lee v. E.I. DuPont de Nemours & Co., 894 F.2d 755, 758 (5th Cir. 1990) (same). On the other hand, the Court has recognized that not every conceivable cause of action that may be brought against an ERISA-covered plan is pre-empted. "Some state actions may affect employee benefit plans in too tenuous, remote or peripheral a manner to warrant a finding that the law 'relates to' the plan." Shaw, 463 U.S. at 100 n.21. Thus, "run-of-the- mill state-law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan" are not pre- empted, Mackey, 486 U.S. at 833 (discussing these types of claims in dicta). C. Pre-emption of the Corcorans' Claims Initially, we observe that the common law causes of action advanced by the Corcorans are not that species of law "specifically designed" to affect ERISA plans, for the liability rules they seek to invoke neither make explicit reference to nor are premised on the existence of an ERISA plan. Compare 18 Ingersoll-Rand, 111 S. Ct. at 483. Rather, applied in this case against a defendant that provides benefit-related services to an ERISA plan, the generally applicable negligence-based causes of action may have an effect on an ERISA-governed plan. In our view, the pre-emption question devolves into an assessment of the significance of these effects. 1. United's position -- it makes benefit determinations, not medical decisions United's argument in favor of pre-emption is grounded in the notion that the decision it made concerning Mrs. Corcoran was not primarily a medical decision, but instead was a decision made in its capacity as a plan fiduciary about what benefits were authorized under the Plan. All it did, it argues, was determine whether Mrs. Corcoran qualified for the benefits provided by the plan by applying previously established eligibility criteria. The argument's coup de grace is that under well-established precedent,12 participants may not sue in tort to redress injuries flowing from decisions about what benefits are to be paid under a plan. One commentator has endorsed this view of lawsuits against providers of utilization review services, arguing that, because medical services are the "benefits" provided by a utilization review company, complaints about the quality of medical services (i.e., lawsuits for negligence) "can therefore be characterized as claims founded upon a constructive denial of plan benefits." 12 Pilot Life, 481 U.S. at 47-48. 19 Chittenden, Malpractice Liability and Managed Health Care: History & Prognosis, 26 Tort & Ins. Law J. 451, 489 (1991). In support of its argument, United points to its explanatory booklet and its language stating that the company advises the patient's doctor "what the medical plan will pay for, based on a review of [the patient's] clinical information and nationally accepted medical guidelines for the treatment of [the patient's] condition." It also relies on statements to the effect that the ultimate medical decisions are up to the beneficiary's doctor. It acknowledges at various points that its decision about what benefits would be paid was based on a consideration of medical information, but the thrust of the argument is that it was simply performing commonplace administrative duties akin to claims handling. Because it was merely performing claims handling functions when it rejected Dr. Collins's request to approve Mrs. Corcoran's hospitalization, United contends, the principles of Pilot Life and its progeny squarely foreclose this lawsuit. In Pilot Life, a beneficiary sought damages under various state-law tort and contract theories from the insurance company that determined eligibility for the employer's long term disability benefit plan. The company had paid benefits for two years, but there followed a period during which the company terminated and reinstated the beneficiary several times. 481 U.S. at 43. The Court made clear, however, that ERISA pre-empts state-law tort and contract actions in which a beneficiary seeks to recover damages for 20 improper processing of a claim for benefits. Id. at 48-49. United suggests that its actions here were analogous to those of the insurance company in Pilot Life, and therefore urges us to apply that decision. 2. The Corcorans' position -- United makes medical decisions, not benefit determinations The Corcorans assert that Pilot Life and its progeny are inapposite because they are not advancing a claim for improper processing of benefits. Rather, they say, they seek to recover solely for United's erroneous medical decision that Mrs. Corcoran did not require hospitalization during the last month of her pregnancy. This argument, of course, depends on viewing United's action in this case as a medical decision, and not merely an administrative determination about benefit entitlements. Accordingly, the Corcorans, pointing to the statements United makes in the QCP booklet concerning its medical expertise, contend that United exercised medical judgment which is outside the purview of ERISA pre-emption. The Corcorans suggest that a medical negligence claim is permitted under the analytical framework we have developed for assessing pre-emption claims. Relying on Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456 (5th Cir. 1986), cert. denied, 479 U.S. 1034 (1987), they contend that we should not find the state law under which they proceed pre-empted because it (1) involves the exercise of traditional state authority and (2) is a law of general application which, although it affects relations between 21 principal ERISA entities in this case, is not designed to affect the ERISA relationship.13 3. Our view -- United makes medical decisions incident to benefit determinations We cannot fully agree with either United or the Corcorans. Ultimately, we conclude that United makes medical decisions -- indeed, United gives medical advice -- but it does so in the context of making a determination about the availability of benefits under the plan. Accordingly, we hold that the Louisiana tort action asserted by the Corcorans for the wrongful death of their child allegedly resulting from United's erroneous medical decision is pre-empted by ERISA. Turning first to the question of the characterization of United's actions, we note that the QCP booklet and the SPD lend substantial support to the Corcorans' argument that United makes 13 Amicus curiae Louisiana Trial Lawyers Association (LTLA) argues that United is not an ERISA fiduciary, and that therefore the tort claims against it cannot be pre-empted. The parties, however, agree that United is a fiduciary, and we have no reason to dispute this. United's contract with Bell would appear to give it "discretionary authority or discretionary control respecting management of [the] plan" or "authority or control respecting management or disposition of its assets. . . [,]" thus satisfying the statutory definition of a fiduciary. 29 U.S.C. § 1002(21)(A)(i). In any event, all courts of appeals to have considered the issue have held that ERISA pre-emption may apply regardless of whether the defendant is a plan fiduciary. Consolidated Beef Indus., Inc. v. New York Life Ins. Co., 949 F.2d 960, 964 (8th Cir. 1991); Gibson v. Prudential Ins. Co., 915 F.2d 414, 417-18 (9th Cir. 1990); Howard v. Parisian, Inc., 807 F.2d 1560, 1564 (11th Cir. 1987). Despite the suggestion in Howard that this circuit so held in Light v. Blue Cross and Blue Shield of Alabama, 790 F.2d 1247 (5th Cir. 1986), there is no indication that the defendant in Light was not a fiduciary, and even if it was not, no part of the opinion considers the precise question whether ERISA pre-empts suits against nonfiduciaries. 22 medical decisions. United's own booklet tells beneficiaries that it "assess[es] the need for surgery or hospitalization and . . . determine[s] the appropriate length of stay for a hospitalization, based on nationally accepted medical guidelines." United "will discuss with your doctor the appropriateness of the treatments recommended and the availability of alternative types of treatments." Further, "United's staff includes doctors, nurses, and other medical professionals knowledgeable about the health care delivery system. Together with your doctor, they work to assure that you and your covered family members receive the most appropriate medical care." According to the SPD, United will "provid[e] you with information which will permit you (in consultation with your doctor) to evaluate alternatives to surgery and hospitalization when those alternatives are medically appropriate." United makes much of the disclaimer that decisions about medical care are up to the beneficiary and his or her doctor. While that may be so, and while the disclaimer may support the conclusion that the relationship between United and the beneficiary is not that of doctor-patient, it does not mean that United does not make medical decisions or dispense medical advice. See Wickline, 239 Cal. Rptr. at 819 (declining to hold Medi-Cal liable but recognizing that it made a medical judgment); Macaulay, Health Care Cost Containment and Medical Malpractice: On a Collision Course, 19 Suffolk U.L. Rev. 91, 106-107 (1986) ("As illustrated in [Wickline], an adverse prospective 23 determination on the 'necessity' of medical treatment may involve complex medical judgment.") (footnote omitted). In response, United argues that any such medical determination or advice is made or given in the context of administering the benefits available under the Bell plan. Supporting United's position is the contract between United and Bell, which provides that "[United] shall contact the Participant's physician and based upon the medical evidence and normative data determine whether the Participant should be eligible to receive full plan benefits for the recommended hospitalization and the duration of benefits." United argues that the decision it makes in this, the prospective context, is no different than the decision an insurer makes in the traditional retrospective context. The question in each case is "what the medical plan will pay for, based on a review of [the beneficiary's] clinical information and nationally accepted medical guidelines for the treatment of [the beneficiary's] condition." See QCP Booklet at 4. A prospective decision is, however, different in its impact on the beneficiary than a retrospective decision. In both systems, the beneficiary theoretically knows in advance what treatments the plan will pay for because coverage is spelled out in the plan documents. But in the retrospective system, a beneficiary who embarks on the course of treatment recommended by his or her physician has only a potential risk of disallowance of all or a part of the cost of that treatment, and then only after treatment has been rendered. 24 In contrast, in a prospective system a beneficiary may be squarely presented in advance of treatment with a statement that the insurer will not pay for the proposed course of treatment recommended by his or her doctor and the beneficiary has the potential of recovering the cost of that treatment only if he or she can prevail in a challenge to the insurer's decision. A beneficiary in the latter system would likely be far less inclined to undertake the course of treatment that the insurer has at least preliminarily rejected. By its very nature, a system of prospective decisionmaking influences the beneficiary's choice among treatment options to a far greater degree than does the theoretical risk of disallowance of a claim facing a beneficiary in a retrospective system. Indeed, the perception among insurers that prospective determinations result in lower health care costs is premised on the likelihood that a beneficiary faced with the knowledge of specifically what the plan will and will not pay for will choose the treatment option recommended by the plan in order to avoid risking total or partial disallowance of benefits. When United makes a decision pursuant QCP, it is making a medical recommendation which -- because of the financial ramifications -- is more likely to be followed.14 14 It is the medical decisionmaking aspect of the utilization review process that has spawned the literature assessing the application of malpractice and other negligence- based doctrines to hold these entities liable for patient injuries. See Blum, supra, at 199 ("The overriding incentive for [utilization review] may be cost containment, but the process itself is triggered by a medical evaluation of a particular case, 25 Although we disagree with United's position that no part of its actions involves medical decisions, we cannot agree with the Corcorans that no part of United's actions involves benefit determinations. In our view, United makes medical decisions as part and parcel of its mandate to decide what benefits are available under the Bell plan. As the QCP Booklet concisely puts it, United decides "what the medical plan will pay for." When United's actions are viewed from this perspective, it becomes apparent that the Corcorans are attempting to recover for a tort allegedly committed in the course of handling a benefit determination. The nature of the benefit determination is different than the type of decision that was at issue in Pilot Life, but it is a benefit determination nonetheless. The principle of Pilot Life that ERISA pre-empts state-law claims alleging improper handling of benefit claims is broad enough to cover the cause of action asserted here. Moreover, allowing the Corcorans' suit to go forward would contravene Congress's goals of "ensur[ing] that plans and plan sponsors would be subject to a uniform body of benefit law" and "minimiz[ing] the administrative and financial burdens of complying with conflicting directives among States or between States and the Federal Government." Ingersoll-Rand Co., 111 S. an evaluation that requires a clinical judgment.") (footnote omitted); Tiano, supra, at 80 ("The patient faces conflicting judgments by two medical professionals: the treating physician and the utilization review consultant"); Chittenden, supra, at 476 ("negligent implementation of cost-control mechanisms may affect the medical judgment of the physician or other provider resulting in physical injury to the patient"). 26 Ct. at 484; see also Fort Halifax Packing, 482 U.S. at 9-10. Thus, statutes that subject plans to inconsistent regulatory schemes in different states, thereby increasing inefficiency and potentially causing the plan to respond by reducing benefit levels, are consistently held pre-empted. See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 524 (1981) (striking down law which prohibited plans from offsetting benefits by amount of worker compensation payments); Shaw, 463 U.S. at 105 n.25 (striking down law which prohibited plans from discriminating on basis of pregnancy); FMC Corp., 111 S. Ct. at 408 (striking down law which eliminated plans' right of subrogation from claimant's tort recovery). But in Ingersoll- Rand, the Court, in holding pre-empted the Texas common law of wrongful discharge when applied against an employer who allegedly discharged an employee to avoid contributing to the employee's pension plan, made clear that a state common law cause of action is equally capable of leading to the kind of patchwork scheme of regulation Congress sought to avoid: It is foreseeable that state courts, exercising their common law powers, might develop different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. Such an outcome is fundamentally at odds with the goal of uniformity that congress sought to implement. 111 S. Ct. at 484. Similarly, although imposing liability on United might have the salutary effect of deterring poor quality 27 medical decisions,15 there is a significant risk that state liability rules would be applied differently to the conduct of utilization review companies in different states. The cost of complying with varying substantive standards would increase the cost of providing utilization review services, thereby increasing the cost to health benefit plans of including cost containment features such as the Quality Care Program (or causing them to eliminate this sort of cost containment program altogether) and ultimately decreasing the pool of plan funds available to reimburse participants. See Macaulay, supra, at 105.16 15 See Comment, A Cost Containment Malpractice Defense: Implications for the Standard of Care and for Indigent Patients, 26 Hous. L. Rev. 1007, 1021 (1989) (by Leslie C. Giordani). 16 We find Independence HMO, Inc. v. Smith, 733 F. Supp. 983 (E.D. Pa. 1990), cited by the Corcorans, distinguishable on its facts. In Smith, the district court did not find pre-empted a state court malpractice action brought against an HMO by one of its members. The plaintiff sought to hold the HMO liable, under a state-law agency theory, for the alleged negligence of a surgeon associated with the HMO. The case appears to support the Corcorans because the plaintiff was attempting to hold an ERISA entity liable for medical decisions. However, the medical decisions at issue do not appear to have been made in connection with a cost containment feature of the plan or any other aspect of the plan which implicated the management of plan assets, but were instead made by a doctor in the course of treatment. We also find Eurine v. Wyatt Cafeterias, No. 3-91-0408-H (N.D. Tex. Aug. 21, 1991), cited in the Corcorans' reply brief, irrelevant to this case. In Eurine, an employee of Wyatt Cafeterias sued after she slipped and fell at work. Wyatt had opted out of Texas's workers' compensation scheme, but provided benefits for injured employees pursuant to an ERISA plan. The court held that a tort suit against the employer for its negligence in failing to maintain the floor in a safe condition had nothing to do with the ERISA relationship between the parties, but instead arose from their distinct employer-employee relationship. Finally, to the extent that two other decisions cited by the 28 It may be true, as the Corcorans assert, that Louisiana tort law places duties on persons who make medical judgments within the state, and the Louisiana courts may one day recognize that this duty extends to the medical decisions made by utilization review companies. But it is equally true that Congress may pre- empt state-law causes of action which seek to enforce various duties when it determines that such actions would interfere with a carefully constructed scheme of federal regulation. See Pilot Life, 481 U.S. at 48. The acknowledged absence of a remedy under ERISA's civil enforcement scheme for medical malpractice committed in connection with a plan benefit determination does not alter our conclusion. While we are not unmindful of the fact that our interpretation of the pre-emption clause leaves a gap in remedies within a statute intended to protect participants in employee benefit plans, see Shaw, 463 U.S. at 90; Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989), the lack of an ERISA remedy does not affect a pre-emption analysis. Memorial Hosp., 904 F.2d at 248 & n.16; Lee, 894 F.2d at 757. Congress perhaps could not have predicted the interjection into the ERISA "system" of the medical utilization review process, but it enacted a pre-emption clause so broad and a statute so comprehensive that it would be incompatible with the language, Corcorans, Kohn v. Delaware Valley HMO, Inc., No. 91-2745 (E.D. Pa. Dec. 20, 1991 and Feb. 5, 1992), and Cooney v. South Central Bell Tel. Co., No. 91-3870 (E.D. La. March 5, 1992), conflict with our holding, we decline to follow them. 29 structure and purpose of the statute to allow tort suits against entities so integrally connected with a plan. We are not persuaded that Sommers Drug, on which the Corcorans rely heavily, commands a different outcome. In Sommers Drug, we observed that courts are less likely to find pre-emption when the state law involves an exercise of traditional state authority than when the law affects an area not traditionally regulated by the states. Id. at 1467. The Corcorans contend that they easily pass this hurdle, as tort law traditionally has been reserved to the states, but this victory only puts them back at the starting line again. We went on to say in Sommers Drug that we were "not convinced" that the traditional or nontraditional nature of the state law properly bears upon the initial question whether it is pre-empted by § 514(a), because the distinction had no support in the statutory language. Id. at 1468. We continue to adhere to this view. As cases such as Ingersoll-Rand and Christopher illustrate, the fact that states traditionally have regulated in a particular area has functioned as no impediment to ERISA pre-emption. See Ingersoll-Rand, 111 S. Ct. at 483 (wrongful discharge action pre-empted); Christopher, 950 F.2d at 1218 (fraud action pre-empted). ERISA's pre-emption section itself contains an explicit exemption for state laws that regulate in at least one area of traditional state function -- insurance. ERISA § 514(b)(2)(A). There is no reason to believe that Congress intended implicitly to exempt a 30 whole range of state laws when it showed itself perfectly capable of carving out specific exemptions. The second factor identified in Sommers Drug as bearing on pre-emption -- whether the state law affects relations among principal ERISA entities -- continues to be relevant in this circuit, see Memorial Hospital Systems v. Northbrook Life Insurance Co., 904 F.2d 236, 245, 248-50 (5th Cir. 1990), but it does not help the Corcorans. In the case before us, of course, the cause of action affects relations between principal ERISA entities. Nevertheless, the Corcorans argue, Sommers Drug holds that the claim will not be pre-empted where the state law is one of general application and it does not affect relations among the principal ERISA entities "as such," but in their capacities as entities in another kind of relationship. They analogize to Sommers Drug, where we held that a pension plan, acting in its "non-ERISA" capacity as a shareholder in a company, could invoke the state common law of corporate fiduciary duty against an officer and director of the company and a plan fiduciary to redress an alleged breach of fiduciary duty. 793 F.2d at 1468- 70. The short answer to this argument is that the cause of action in this case is not between parties acting in the kind of non-ERISA context we found in Sommers Drug. Although the claims in Sommers Drug nominally affected relations between ERISA entities, the lawsuit had nothing to do with the plan. Here, however, the central purpose of the lawsuit is to hold United liable for actions it took in connection with its duties under 31 the plan. Sommers Drug does not mitigate the pre-emptive force of ERISA § 514(a). IV. EXTRACONTRACTUAL DAMAGES The Corcorans argue in the alternative that the damages they seek are available as "other appropriate equitable relief" under ERISA § 502(a)(3). That section provides: (a) A civil action may be brought -- . . . (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan; . . . Although the Corcorans did not assert a cause of action under § 502(a)(3) in their original state court complaint, they asked the district court in their motion for reconsideration to award damages pursuant to this section. The defendants agreed at oral argument that the issue was properly raised and preserved for appeal, and we proceed to consider it. Section 502(a)(3) provides for relief apart from an award of benefits due under the terms of a plan. When a beneficiary simply wants what was supposed to have been distributed under the plan, the appropriate remedy is § 502(a)(1)(B). See, e.g., Cathey v. Dow Chemical Co. Medical Care Program, 907 F.2d 554, 555 (5th Cir. 1990), cert. denied, 111 S. Ct. 964 (1991). Damages that would give a beneficiary more than he or she is 32 entitled to receive under the strict terms of the plan are typically termed "extracontractual." Section 502(a)(3) by its terms permits beneficiaries to obtain "other appropriate equitable relief" to redress (1) a violation of the substantive provisions of ERISA or (2) a violation of the terms of the plan. Although the Corcorans have neither identified which of these two types of violations they seek to redress nor directed us to the particular section of the Plan or ERISA which they claim was violated, we need not determine this in order to resolve the issue before us. As outlined below, we find that the particular damages the Corcorans seek -- money for emotional injuries -- would not be an available form of damages under the trust and contract law principles which, the Corcorans urge, should guide our interpretation of ERISA's remedial scheme. Thus, we hold that even under the interpretation of § 502(a)(3) urged by the Corcorans, they may not recover. The question whether extracontractual or punitive damages are available to a beneficiary under § 502(a)(3) has been left open by the Supreme Court ever since Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134 (1985). In Russell, the beneficiary of a plan sought compensatory and punitive damages under ERISA §§ 502(a)(2) and 409(a)17 for the improper processing of her claim for disability benefits. Id. at 136, 138. The Court rejected the argument that such damages were available 17 Section 502(a)(2) permits "the Secretary. . .a participant, beneficiary or fiduciary" to sue for appropriate relief under § 409. 33 under § 409(a), holding that § 409(a) (1) authorized only actions on behalf of the plan as a whole, not individual beneficiaries, for losses to the plan; and (2) provided no implied cause of action for extracontractual damages caused by improper claims processing. Russell, 473 U.S. at 140, 147. Because the beneficiary expressly disclaimed reliance on § 502(a)(3), however, the Court had no occasion to consider whether the damages the plaintiff sought were available under that section. Id. at 139 n.5. In a concurrence joined by three other Justices, Justice Brennan emphasized that he read the Court's reasoning to apply only to § 409(a), and that the legislative history of ERISA suggested that courts should develop a federal common law in fashioning "other appropriate equitable relief" under § 502(a)(3). Id. at 155-56 (Brennan, J., concurring in the judgment). Justice Brennan argued that Congress "intended to engraft trust-law principles onto the enforcement scheme" of ERISA, including the principle that courts should give to beneficiaries of a trust the remedies necessary for the protection of their interests. Id. at 156-57. Consequently, he encouraged courts faced with claims for extracontractual damages first to determine to what extent state and federal trust and pension law provide for the recovery of damages beyond any benefits that have been withheld, and second to consider whether extracontractual relief would conflict with ERISA in any way. Id. at 157-58. With respect to the first inquiry he indicated 34 that any deficiency in trust law in the availability of make- whole remedies should not deter courts from authorizing such remedies under § 502(a)(3), for Congress intended in ERISA to strengthen the requirements of the common law of trusts as they relate to employee benefit plans. Id. at 157 n.17. Finally, Justice Brennan suggested, courts should keep in mind that the purpose of ERISA is the "enforcement of strict fiduciary standards of care in the administration of all aspects of pension plans and promotion of the best interests of participants and beneficiaries." Id. at 158. The Corcorans urge us to apply Justice Brennan's concurrence and hold that the damages they seek amount to "other appropriate equitable relief." The defendants, on the other hand, urge us to interpret "other appropriate equitable relief" to include only declaratory and injunctive relief. Under the defendants' view of § 502(a)(3), which has been adopted by a number of circuits,18 no money damages would be awardable and our discussion would be at an end. However, even assuming that Justice Brennan's view of "other appropriate equitable relief" as potentially encompassing make-whole relief is a proper construction of that section, the damages the Corcorans seek would not be available. 18 Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821 (1st Cir.), cert. denied, 488 U.S. 909 (1988); Harsch v. Eisenberg, 956 F.2d 651 (7th Cir. 1992), petition for cert. filed, 60 U.S.L.W. 3816 (U.S. May 11, 1992) (No. 91-1835); Novak v. Andersen Corp., No. 91-1957 (8th Cir. April 9, 1992); Sokol v. Bernstein, 803 F.2d 532 (9th Cir. 1986); Bishop v. Osborn Transp., Inc., 838 F.2d 1173 (11th Cir.), cert. denied, 488 U.S. 832 (1988). 35 The characterization of equitable relief as encompassing damages necessary to make the plaintiff whole may well be consistent with the trust law principles that were incorporated into ERISA and which guide its interpretation. See Firestone, 489 U.S. at 110-11 (because ERISA is largely based on trust law, those principles guide interpretation); H.R. Rep. No. 533, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S. Code Cong. & Admin. News 4639; S. Rep. No. 127, 93d Cong., 1st Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 4838 (indicating intent to incorporate the law of trusts into ERISA). Section 205 of the Restatement (Second) of Trusts allows for monetary damages as make-whole relief, providing that a beneficiary has "the option of pursuing a remedy which will put him in the position in which he was before the trustee committed the breach of trust" or "of pursuing a remedy which will put him in the position in which he would have been if the trustee had not committed the breach of trust." In the context of the breach of a trustee's investment duties, "the general rule [is] that the object of damages is to make the injured party whole, that is, to put him in the same condition in which he would have been if the wrong had not been committed. . . . Both direct and consequential damages may be awarded." G. Bogert & G. Bogert, The Law of Trusts and Trustees § 701, at 198 (2d ed. 1982). See also Estate of Talbot, 141 Cal. App. 309, 296 P.2d 848 (1956); In re Cook's Will, 136 N.J. Eq. 123, 40 A.2d 805 (1945). 36 This view may also be consistent with the common law contract doctrine which assists us in interpreting ERISA. As the Court observed in Russell, ERISA was enacted "to protect contractually defined benefits." 473 U.S. at 148. Prior to the enactment of ERISA, the rights and obligations of pension beneficiaries and trustees were governed not only by trust principles, but in large part by contract law. Firestone, 489 U.S. at 112-13; see also Rochester Corp. v. Rochester, 450 F.2d 118, 120-21 (4th Cir. 1971); Audio Fidelity Corp. v. Pension Benefit Guaranty Corp., 624 F.2d 513, 517 (4th Cir. 1980); Hoefel v. Atlas Tack Corp., 581 F.2d 1, 4-7 (1st Cir. 1978). It is well-established that contract law enables an aggrieved party to recover such damages as would place him in the position he would have occupied had the contract been performed, Restatement (Second) of Contracts § 347 & comment a (1981), including those damages that could reasonably have been foreseen to flow from the breach. Id. § 351; see Warren v. Society Nat. Bank, 905 F.2d 975, 980 (6th Cir. 1990) (§ 502(a)(3) allows for recovery of beneficiaries' increased tax liability after plan administrators failed to follow instructions regarding distribution), cert. denied, 111 S. Ct. 2556 (1991). However, the Corcorans seek a form of extracontractual damages that is never, as far as we can tell, awarded for breach of trust duties, and is granted only in the most limited of circumstances for a breach of contract. Certainly, patients and their physicians can enter into contracts and physicians may 37 incur liability for breach. The cases are uniform, however, in holding that there can be no recovery against a physician on a contractual theory, as opposed to the usual recovery on a tort theory of medical negligence, unless there is an express agreement to perform a particular service or to achieve a specific cure. E.g., Bobrick v. Bravstein, 497 N.Y.S.2d 749, 751, 116 A.D.2d 682 (App. Div. 1986); Cirafici v. Goffen, 85 Ill. App. 3d 1102, 407 N.E.2d 633, 635, 41 Ill. Dec. 135 (1980); Depenbrok v. Kaiser Foundation Health Plan, Inc., 79 Cal. App. 3d 167, 144 Cal. Rptr. 724, 726 (1978). In a few cases, courts, recognizing a distinction between commercial contracts and contracts for the performance of personal services, have found inapplicable the general rule that emotional distress damages are not available in contract actions19 and have allowed damages for emotional injuries within the contemplation of the parties. Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816, 824 (1957) ("the parties may reasonably be said to have contracted with reference to the payment of [emotional distress] damages therefor in event of breach"); Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183, 188-89 (1973) (although mental anguish damages are not available for breach of a commercial contract, psychological injury may be contemplated in a contract for an operation) (citing Stewart). The Stewart rule, however, has not been widely adopted, and the 19 See J. Calamari & J. Perillo, The Law of Contracts §§ 14-3, 14-5(b), at 595-96 (3d ed. 1987); 11 W. Jaeger, Williston on Contracts § 1341, at 214 (3d ed. 1968); 5 Corbin on Contracts § 1076, at 426 (2d ed. 1964). 38 Michigan courts recently have characterized its holding concerning damages as applying only to contracts involving deep, personal relationships, Chrum v. Charles Heating & Cooling, Inc., 121 Mich. App. 17, 327 N.W.2d 568, 570 (1982), and contracts to perform very specific acts. Penner v. Seaway Hosp., 169 Mich. App. 502, 427 N.W.2d 584, 587 (1988). The strictness with which courts have viewed doctor-patient contracts thwarts the Corcorans' claim that emotional distress damages would be available here under a make-whole interpretation of § 502(a)(3). The existence of a true doctor-patient relationship between Mrs. Corcoran and United which could support a contractual theory of recovery is dubious at best. Related to this problem is the lack of an express agreement for a particular service or for a particular result that serves as a prerequisite to a contract-based recovery. Even assuming that United's booklet could be considered an aspect of the "plan," breach of which would give rise to a cause of action under § 502(a)(3), it cannot be construed as making an agreement to perform any particular medical procedure or to arrive at any result. At most it makes promises to act in accordance with accepted standards of medical care. But courts have not recognized these sorts of promises as creating contractual duties between physicians and patients. Cirafici, 407 N.E.2d at 635-36 (failure to perform with requisite skill and care leads to action for negligence, not breach of contract); Awkerman v. Tri-County Orthopedic Group, P.C., 143 Mich. App. 722, 373 N.W.2d 204, 206 (1985) (physician's 39 breach of express or implied promise to act in accordance with standard of care not actionable in contract). Indeed, the Massachusetts Supreme Judicial Court has emphasized that in an action seeking damages under Sullivan, one of the leading cases allowing mental distress damages for a breached medical contract, recovery is not for the doctor's failure to live up to the standard of care but solely for a failure to perform the specific promise contained in the agreement. Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 386 N.E.2d 1268, 1271 (1979). See also Murray v. University of Pennsylvania Hosp., 490 A.2d 839, 841 (Pa. Super. 1985) (action for breach of contract to achieve particular result may lie even if doctor has exercised highest degree of skill and care). The fact that courts regularly view doctors and their patients as standing in a fiduciary relationship, e.g., Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469, 482 (1985); Liebergesell v. Evans, 93 Wash. 2d 881, 613 P.2d 1170, 1176 (1980); State ex rel. Stufflebaum v. Appelquist, 694 S.W.2d 882, 885 (Mo. App. 1985), also is of no avail. Although a plan beneficiary certainly may sue under § 502(a)(3) for a breach of the fiduciary duties set forth in § 404, the lack of a true doctor-patient relationship between Mrs. Corcoran and United undermines this ground of recovery. In any event, courts have not held that patients may sue their doctors under any independent "breach of fiduciary duty" theory. The remedies are limited to contract actions (where an express agreement has been 40 made) and, in the vast majority of cases, tort actions for negligence. Assuming without deciding, therefore, that § 502(a)(3) permits the award of make-whole relief as "other appropriate equitable relief," we hold that the emotional distress and mental anguish damages sought here by the Corcorans are not recoverable. * * * The result ERISA compels us to reach means that the Corcorans have no remedy, state or federal, for what may have been a serious mistake. This is troubling for several reasons. First, it eliminates an important check on the thousands of medical decisions routinely made in the burgeoning utilization review system. With liability rules generally inapplicable, there is theoretically less deterrence of substandard medical decisionmaking. Moreover, if the cost of compliance with a standard of care (reflected either in the cost of prevention or the cost of paying judgments) need not be factored into utilization review companies' cost of doing business, bad medical judgments will end up being cost-free to the plans that rely on these companies to contain medical costs.20 ERISA plans, in 20 We note that, were the Corcorans able to recover against United under state law, the contract between Bell and United indicates that United would bear the cost. However, the general application of a liability system to utilization review companies would ultimately result in increased costs to plans such as the Bell plan as it became more expensive for companies such as United to do business. 41 turn, will have one less incentive to seek out the companies that can deliver both high quality services and reasonable prices. Second, in any plan benefit determination, there is always some tension between the interest of the beneficiary in obtaining quality medical care and the interest of the plan in preserving the pool of funds available to compensate all beneficiaries. In a prospective review context, with its greatly increased ability to deter the beneficiary (correctly or not) from embarking on a course of treatment recommended by the beneficiary's physician, the tension between interest of the beneficiary and that of the plan is exacerbated. A system which would compensate the beneficiary who changes course based upon a wrong call for the costs of that call might ease the tension between the conflicting interests of the beneficiary and the plan. Finally, cost containment features such as the one at issue in this case did not exist when Congress passed ERISA. While we are confident that the result we have reached is faithful to Congress's intent neither to allow state-law causes of action that relate to employee benefit plans nor to provide beneficiaries in the Corcorans' position with a remedy under ERISA, the world of employee benefit plans has hardly remained static since 1974. Fundamental changes such as the widespread institution of utilization review would seem to warrant a reevaluation of ERISA so that it can continue to serve its noble purpose of safeguarding the interests of employees. Our system, of course, allocates this task to Congress, not the courts, and 42 we acknowledge our role today by interpreting ERISA in a manner consistent with the expressed intentions of its creators. V. CONCLUSION For all the foregoing reasons, we find that ERISA pre-empts the Corcorans' tort claim against United and that the Corcorans may not recover damages for emotional distress under § 502(a)(3) of ERISA. Accordingly, the judgment of the district court is AFFIRMED. 43	{ "pile_set_name": "FreeLaw" }
573 F.Supp. 66 (1983) Victor L. EDWARDS, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant. Civ. A. No. CA-7-83-30. United States District Court, N.D. Texas, Wichita Falls Division. October 17, 1983. 67 Mark Heller, West Texas Legal Services, Wichita Falls, Tex., for plaintiff. Mattie Peterson Compton, Fort Worth, Tex., for defendant. MEMORANDUM AND ORDER MARY LOU ROBINSON, District Judge. In 1976, Victor Edwards was found to have been disabled within the meaning of the Social Security Act since April 16, 1975. He received Social Security disability benefits until the Secretary determined that his disability had ended in December of 1981. He received a de novo hearing before an Administrative Law Judge, see 42 U.S.C. § 405(b) (1976 ed. Supp. V); § 421(d); 20 CFR §§ 404.929-.930 (1981), who found, in relevant part, that: ¶ 4. The claimant's medically determinable impairments are: neuropathy, right lower extremity, secondary to removal of herniated disc; history of peptic ulcer; hiatus hernia; adult onset diabetes mellitus; chronic obstructive pulmonary disease; and obesity. ¶ 5. The medical evidence shoes [sic] that beginning December 1981, the claimant's impairments improved. . . . . . ¶ 12. By [D]ecember 1981, the claimant was no longer under a "disability" as defined in the Social Security Act, as amended. The Social Security Appeals Council concluded that there was no basis under 20 CFR § 404.970 (1983) for granting Claimant's request for a review of these findings and, accordingly, denied his request for a review. The ALJ's findings thus became final. 20 CFR § 404.981 (1983). Claimant has appealed to this Court. 42 U.S.C. § 405(b); 20 CFR § 422.210 (1983). Scope of Review The jurisdiction of this Court is confined to a limited review of the Secretary's decision and the record made in the administrative hearing process. 42 U.S.C. § 405(g). This Court reviews whether the decision of the Secretary is in fact supported by substantial evidence and whether errors of law occurred. Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir.1983). "We may determine only whether there is substantial evidence on the entire record to support the Secretary's fact findings. We may not reweigh the evidence, substitute our own judgment for the Secretary's, or give vent to feelings of compassion. While we need not be hard hearted, we must be cool tempered: if the Secretary's findings are supported by substantial evidence, they are conclusive." Bowman v. Heckler, 706 F.2d 564, 566-67 (5th Cir.1983). See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Thomas v. Schweiker, 666 F.2d 999, 1001-02 (5th Cir.1982) (per curiam); Salinas v. Schweiker, 662 F.2d 345, 347 (5th Cir.1981) (per curiam). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Chaney v. Califano, 588 F.2d 958, 959 (5th Cir.1979). It is more than a scintilla, but less than a preponderance, and must be based on the record as a whole. Knott v. Califano, 559 F.2d 279 (5th Cir.1977). To make a finding of "no substantial evidence", this Court must conclude that there is a "conspicuous absence of credible choices" or "no contrary medical evidence." Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir.1983), quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir.1973). Criteria for Disability Disability is defined in the Social Security Act as the "inability to engage in any 68 substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted ... for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The claimant's impairment must be appropriately demonstrated. A physical or mental impairment is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). [A]n individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work. For purposes of the preceding sentence ..., "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 42 U.S.C. § 423(d)(2)(A). Who Must Show What "In a case in which benefits have been terminated, as in a case in which benefits have been denied, the burden of proving disability is on the claimant, not on the Secretary.... Thus the claimant has the burden of proving that his disability did in fact, continue." Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir.1981), quoting Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir.1972) (citations omitted). The claimant has the benefit of a presumption that his prior medical condition has continued unchanged because "[o]nce evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged." Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973). This suggests that in a termination hearing the Secretary must present some proof of change in a medical condition previously determined to be disabling. The Ninth Circuit has held that: In an appropriate case ... a prior ruling of disability can give rise to a presumption that the disability still exists. [Rivas] ... We are unable to discern any reason why the familiar principle that a condition, once proved to exist, should not be applied when disability benefits are at stake.... All the presumption does is impose on the Secretary a burden to come forward with evidence that [the claimant's] condition has changed. Whether that burden has been met is a judgment to be made initially by the Secretary, and that judgment cannot be overturned on appeal if it meets the "substantial evidence" standard.... But where ... there is essentially no evidence to support a conclusion that the claimant's condition has changed, the substantial evidence standard has not been met. Patti v. Schweiker, 669 F.2d 582, 586-87 (9th Cir.1982). Accord Musgrove v. Schweiker, 552 F.Supp. 104, 106-07 (E.D. Pa.1982). See Heckler v. Lopez, ___ U.S. ___, ___, 104 S.Ct. 10, 12, 77 L.Ed.2d 1431 (1983) (Rehnquist, Circuit Justice) ("[F]our Justices of this Court would not be likely to grant a petition for certiorari should the Secretary seek review in this Court of the merits of a Ninth Circuit opinion reaffirming Patti and [Finnegan v. Matthews, 641 F.2d 1340 (9th Cir.1981)]."). Judge Garza, sitting in the Eleventh Circuit by designation, recently wrote: In reviewing the appeal of an initial disability benefits case, we consider whether the Secretary's finding of no disability is supported by substantial evidence. However, in light of principles of administrative res judicata, this is not the proper inquiry in a benefits continuation case. We must ascertain whether the Secretary's finding of improvement to the 69 point of no disability is supported by substantial evidence. In each case, the burden remains with the claimant to prove the existence of a disability. [Crosby] If, however, the evidence in a continuation case is substantially the same as the evidence had been in the initial disability benefits request case, benefits must be continued. Otherwise, termination of benefits will often depend not on a finding of changed condition, but simply on the whim of a changed ALJ. Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir.1982). A termination case based on improvement requires the Secretary to make two distinct findings: (1) that the claimant's condition has improved, and (2) that the claimant's improved condition is not disabling within the meaning of the Social Security Act. Each of these findings must be supported by substantial evidence in the record. The Secretary bears the initial burden of going forward with the evidence. She must place substantial evidence in the record that the claimant's condition has improved or else termination will be barred by res judicata. Once evidence of improvement is in the record, the claimant must produce evidence and persuade the trier of fact that he remains disabled despite his improved condition. This is consistent with Rivas, Crosby, and Simpson. Rivas teaches that there is a presumption of unchanged medical condition and, in conjunction with Crosby, that this presumption imposes on the Secretary the burden of going forward with evidence without shifting the burden of proof from the claimant to the Secretary. See Fed.R. Evid. 301. Simpson makes clear that the continuation of benefits mandated by the Secretary's failure to rebut the presumption of unchanged medical condition by introducing substantial evidence of improvement is a consequence of administrative res judicata, not an independent presumption of continuing disability. Has Claimant's Condition Improved? Claimant was injured on April 16, 1975, when he was pulled into a conveyer belt. Tr. at 10. He experienced severe pain in his back and right leg. Tr. at 97-98. After conservative treatment failed to remedy this condition he underwent surgery on August 27, 1975. This surgery, a discectomy for a herniated nucleus pulposus, resulted in further injury to his spinal cord when the sacral nerves were drilled into as a result of undiscovered spina bifida. Surgery was terminated before the L-5 nerve root was completely decompressed. The L-5 root remained smaller than normal as a result of the compression. Tr. at 116-117. On his Social Security disability benefits application, Claimant alleged that his back had been injured, the toes on his right foot were turning under, his right side was numb, he had difficulty walking up steps, and the muscles in his buttocks were degenerating. Tr. at 88. He also alleged pain in the back, numbness in the right buttock, hip, thigh and foot and complained of loss of balance. Tr. at 90. He could not sit, stand or lay down for any length of time and had to constantly change positions. Tr. at 97-98. On March 17, 1976, the Social Security Administration found Claimant disabled because of a herniated nucleus pulposus, spina bifida occulta, and neuropathy following surgery. Tr. at 72. A series of medical reports subsequent to this determination appear in the record. In October, 1979, Claimant was admitted to Shannon West Texas Memorial Hospital and Dr. Landy diagnosed him as suffering from a hiatus hernia, peptic inflammatory disease, obesity, moderate chronic bronchitis and emphysema, and nerve damage and weakness of the right leg with atrophy of the right foot and the right calf. Tr. at 133-136. He was discharged "improved only slightly." Tr. at 134. In November, 1981, Dr. Bray of the Bone & Joint Clinic examined Claimant and found weakness in his right leg, pain in his back, limited flexion at the waist, atrophy 70 of the right calf, decreased sensation in the medial thigh and around the buttocks on the right side, narrowing and sclerosis of the L-5, S-1 interspace with spina bifida occulta, and significant damage to the L-5 and S-1 to -4 nerve roots. He stated that "[i]t is likely that improvement is poor." Tr. at 146. In August, 1982, Dr. Robison of the Wichita Falls Clinic, one of Claimant's treating physicians, assessed him as having chronic pain following the L-4 laminectomy, chronic bronchitis, chronic obstructive pulmonary disease, obesity, adult onset diabetes mellitus, peripheral sensory neuropathy, and a history of peptic ulcer disease. Tr. at 156. In September, 1982, Dr. Pino of the Wichita Falls Clinic, another of Claimant's treating physicians, stated that Claimant "has a permanent damage to his L5 nerve root on the right, which has been following along since 1975, without any improvement. The patient has continued functional impairment of his right lower extremity with pain radiating along the L5 nerve root on the corresponding extremity.... He has chronic pain ... which has not been totally eradicated with the present treatment." Tr. at 161. In January, 1983, Dr. Farmer, a neurologist with the Wichita Falls Clinic, examined Claimant and found that "[h]e does appear to be having bona fide nerve root irritation and I do feel that his complaints of inability to sit or stand for prolonged periods of time are consistent with his examination." Tr. at 10. Finally, we turn to the only remaining physician's report in the record, that of Dr. Carsner from November, 1981. On physical examination he found: "Straight leg rise is positive at 20° on the right, positive at 35° on the left. Patrick's maneuver carried out without difficulty. Patient is able to bend to 50° and squats with little difficulty. The patient is unable to walk on his heels or toes due to apparent weakness of the right foot.... The right calf is slightly smaller than the left.... The patient cannot extend the toes of his right foot.... Deep tendon reflexes absent at the right ankle." Tr. at 148. He later stated that he thinks Claimant "does have some neuropathy." Tr. at 149. The ALJ relied heavily on this report, stating that: [A] medical report by Dr. Robert L. Carsner ... best reflects claimant's condition in connection with his present impairments. [The report] states: I think this patient does have chronic obstructive pulmonary disease, mild to moderate, and this would certainly be helped by discontinuing all smoking and perhaps the use of bronchodilators, as well as expectorants. He does have history of nerve injury secondary to surgery in the past, and I think he does have some neuropathy secondary to this, but this does not appear to be disabling at the present time. I think he would be limited in his ability to carry out heavy physical work with weight lifting, pushing, pulling; this to include anything over twenty-five pounds. He would also have difficulty bending. I think he very likely does have peptic disease with perhaps esophagitis and this should be helped with the use of antacids as well as Tagamet. This again would be helped by discontinuing his smoking. He is not hypertensive at the present time and there is no evidence of hypertensive cardiovascular disease nor end organ damage secondary to hypertension. I think if he were able to discontinue smoking, prognosis for improvement in regards to primary symptoms would be good. The claimant's primary complaint is pain in his back, tail bone, right hip, and right leg. The medical evidence does show that he has a peripheral sensory neuropathy, which may be due to his diabetes. It is felt that all of his conditions would improve if claimant would quit smoking and follow a weight reduction program. Although Claimant is an obese chain-smoking ex-alcoholic who suffers from a variety of remediable maladies, his initial disability determination was based *71 on only three items: a herniated nucleus pulposus, spina bifida occulta, and neuropathy following surgery. Tr. at 72. There is no substantial evidence in the record that any of these three conditions have improved. Certainly nothing suggests that his herniated nucleus pulposus or his spina bifida occulta have been cured or improved. Dr. Carsner does state that his neuropathy "does not appear to be disabling at the present time." Tr. at 149. This does not constitute substantial evidence. A conclusory statement of disability is, of course, not binding on the Secretary. 20 CFR § 404.1527 (1982). The weight to be given a physician's conclusory statement depends on the extent to which it is supported by specific and complete clinical findings and is consistent with other evidence on the severity and probable duration of the individual's impairments. Id.; Jones v. Heckler, 702 F.2d 616, 621 (5th Cir.1983). Here, Claimant's initial impairments were documented with an electromyogram, a myelogram and a discogram. Tr. at 110-119. No such objective medical findings support Dr. Carsner's statement and no comparison between Dr. Carsner's examination results and Claimant's initial condition of disability has been made to demonstrate how Claimant's condition is improved. Conclusion After giving due consideration to the Motions for Summary Judgment filed by each side, and the briefs, pleadings and transcript of the Social Security Administration proceedings filed herein, the Court is of the opinion that Defendant's Motion for Summary Judgment should be and hereby is DENIED and that Plaintiff's Motion for Summary Judgment should be and hereby is GRANTED. It is so ORDERED.	{ "pile_set_name": "FreeLaw" }
141 Ga. App. 639 (1977) 234 S.E.2d 179 LANKFORD v. TRUST COMPANY BANK et al. 53424. Court of Appeals of Georgia. Argued February 15, 1977. Decided March 18, 1977. Freeman & Hawkins, Albert H. Parnell, Michael J. Goldman, for appellant. Gambrell, Russell, Killorin & Forbes, David A. Handley, Jack O. Morse, Michael N. Mantegna, for appellees. MARSHALL, Judge. Appellant Lankford, plaintiff below, brings this appeal from the grant of motions to dismiss his complaint by the trial court in favor of the appellees, defendants below, the Hyatt Corporation and the Trust Company Bank. Because the court accepted and considered interrogatories and depositions filed by both parties, the issues are before us in the stance of grants of summary judgment in favor of the Hyatt Corporation and the bank. See Code § 81A-112 (b); Dept. of Transportation v. Knight, 238 Ga. 225 (1977). As necessary to this decision, the facts show that an unknown person used Lankford's Master Charge account number to charge room rent at the Regency Hotel on the day following the date that Lankford notified Trust Company Bank that the card had been lost or stolen. Notwithstanding the bank's flagging action on that account, thereafter the bank sent Lankford a Master Charge bill containing the hotel charge. Lankford's wife opened the mail and questioned him about the hotel charge. In spite of his protestations of innocence and insistence of a bank error, his wife refused to believe him, particularly because the bank continued to insist on payment. Thereafter Lankford's wife successfully sued him for divorce upon unstated grounds and was awarded alimony, child support and property. It was disputed whether the check-in clerk at the Regency Hotel simply accepted an oral recitation of the card number by the purchaser of the room or demanded to see a plastic card. Based upon alleged acts of negligence by the Hyatt Corporation in not demanding to see the actual card at time of check-in during March, 1972, and the continued insistence of the bank to collect the charge in spite of its notification that before the charge was incurred the card had been lost, Lankford brought suit against both defendants in March, 1976, seeking compensation for the loss of consortium with his wife and the other consequences of his divorce. It is uncontested that the amount of the hotel charge was approximately $31. Though the bank originally 640 deducted that amount from Lankford's checking account, that sum of money had been refunded to Lankford prior to this suit and is not in issue in this case. Appellant enumerates as error the grant of the motions to dismiss based upon the court's holding that as to the Hyatt Corporation the action was barred by the statute of limitation and as to the appellee bank, there was no cause of action based upon a breach of contract. Held: 1. However one considers the facts of this case, the alleged acts of negligence are separate and distinct as related to the hotel and the bank. The only act of alleged negligence attributable to the hotel was the acceptance by the clerk of the charge account number without demanding to see the plastic charge card. The alleged negligence of the bank was the submission of a charge following the flagging of the account and the continuing efforts to collect the charge for a period of several months after the charge had been billed but protested. The single act of the hotel occurred in March, 1972. Suit was not brought on any of the alleged acts of negligence until March, 1976. In an action for injuries based upon the alleged negligence of a defendant, the statute of limitation commences to run from the breach of the duty, and not from the time when the extent of the resulting injury is ascertained. Brewer v. Southern Gas Corp., 90 Ga. App. 81 (82 SE2d 171) (1954). See Gould v. Palmer & Read, 96 Ga. 798 (22 SE 583) (1894); Riser v. Livsey, 138 Ga. App. 615 (227 SE2d 88) (1976); Schaefer v. Mayor &c. of Athens, 120 Ga. App. 301 (170 SE2d 339) (1969); Sicklesmith v. Citizens Bank of Hapeville, 101 Ga. App. 533 (114 SE2d 319) (1960); Saffold v. Scarborough, 91 Ga. App. 628 (86 SE2d 649) (1955); Dowling v. Lester, 74 Ga. App. 290 (39 SE2d 576) (1946). Actions for injuries to the person shall be brought within two years after the right of action accrues. Code § 3-1004. In this case, the sole alleged act of negligence occurred more than two years prior to the filing of the suit by Lankford. It follows that the trial judge did not err in dismissing the complaint as to the appellee Hyatt Corporation because of the applicability of the statute of limitation. 2. As to the appellee Trust Company Bank, we are 641 dealing with a different basis for the trial judge's ruling. Lankford insists that there was a contractual relationship existing between himself and the bank. Pretermitting the existence of such a relationship, it is of no aid to Lankford in this suit. Assuming the contractual relationship, the bank would have violated it only by seeking the recovery of charges to which it was not entitled. Such a breach would entitle Lankford to recover any improperly collected charges. Such right of recovery, however, in this case is academic at best, inasmuch as Lankford, long before the institution of this suit, had recovered the charge for the hotel bill, and has not sought to recover the charge a second time. Rather than base his recovery upon the improper attempts to collect or the collection of the one charge, Lankford premises his damages indirectly upon his wife's refusal to believe him and for the breakup of his marriage. Damages growing out of a breach of contract, in order to form a basis of recovery, must be such as could be traced solely to the breach, be capable of exact computation, must have arisen according to the usual course of things, and be such as the parties contemplated as a probable result of such breach. The measure of damages in such case is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it entailed. Crawford & Associates v. Groves-Keen, Inc., 127 Ga. App. 646, 650 (194 SE2d 499) (1972). If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrongdoer. Code § 105-2008. Damages must flow from the legal and natural result of the act done. Code § 105-2009. The question of proximate cause is one for a jury except in palpable, clear, and indisputable cases. We think the facts alleged in this complaint bring it within the exception and subject it to be ruled upon as a matter of law. The court must assume this burden where a jury can draw but one reasonable conclusion if the facts alleged are proved, that conclusion being that the acts of the defendant were not the proximate cause of the injury. Stallings v. Ga. *642 Power Co., 67 Ga. App. 435 (20 SE2d 776) (1942). In our opinion, a jury could not reasonably conclude that the appellant's divorce, alimony and property settlement were proximately caused by the improper billing of a single hotel charge. Crankshaw v. Piedmont Driving Club, Inc., 115 Ga. App. 820, 821 (156 SE2d 208) (1967); Covington v. S. H. Kress & Co., 102 Ga. App. 204, 205 (115 SE2d 621) (1960). See Hadden v. Southern Messenger Service, 135 Ga. 372, 374 (69 SE 480) (1902); Sicklesmith v. Citizens Bank of Hapeville, 101 Ga. App. 533, supra. In view of the foregoing, the trial judge did not err in dismissing the complaint as to the appellee Trust Company Bank as failing to state a claim based upon a breach of contract. Judgment affirmed. Deen, P. J., and Webb, J., concur.	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 11-25-2008 Matusow v. Trans Cty Title Agcy Precedential or Non-Precedential: Precedential Docket No. 07-2148 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Matusow v. Trans Cty Title Agcy" (2008). 2008 Decisions. Paper 177. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/177 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 07-2148 _____________ JACQUELINE MATUSOW, Appellant v. TRANS-COUNTY TITLE AGENCY, LLC, JUN CHAN KIM, BERGEN COUNTY SHERIFF, ARTHUR C. LINDERMAN, LYLE ROSENBAUM, and ROSE ROSENBAUM, Appellees On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 06-5723) District Judge: The Honorable Faith S. Hochberg Before: McKEE, RENDELL and TASHIMA * , Circuit Judges ORDER AMENDING OPINION * The Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth Circuit, sitting by designation. The opinion, filed October 16, 2008, is amended by adding a new footnote 4 on slip op. at 8, line 16, after “a Pennsylvania resident,” as follows: Because the status of the parties is jurisdictional, we assume that the District Court has, or will on remand, assure itself that the individual parties are citizens of the respective states of which the complaint alleges that they are residents. All subsequent footnotes are renumbered accordingly. BY THE COURT A. Wallace Tashima Circuit Judge Dated: November 25, 2008 2	{ "pile_set_name": "FreeLaw" }
5 N.Y.3d 707 (2005) MATTER OF KEMP v. KEMP. Court of Appeals of the State of New York. Decided August 25, 2005. Motion for leave to appeal denied.	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EMMA ALTAMIRANO,  Petitioner, No. 03-70737 v.  Agency No. A77-411-293 ALBERTO R. GONZALES,* Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals Argued December 9, 2004 Submitted October 31, 2005 Pasadena, California Filed October 31, 2005 Before: Betty B. Fletcher, Pamela Ann Rymer, and Richard A. Paez, Circuit Judges. Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Rymer *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2). 14843 14846 ALTAMIRANO v. GONZALES COUNSEL Kevin Bove, Esq., Escondido, California, for the petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., Senior Litigation Counsel, M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigra- tion Litigation, U.S. Department of Justice, Washington, DC, for the respondent. ALTAMIRANO v. GONZALES 14847 OPINION PAEZ, Circuit Judge: Emma Altamirano (“Altamirano”) petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming, in a streamlined decision, the Immigration Judge’s (“IJ”) decision denying Altamirano’s motion to terminate removal proceedings against her and finding that Altamirano is inad- missable because she engaged in alien smuggling in violation of § 212(a)(6)(E)(i) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(a)(6)(E)(i) (Supp. V 1999).1 The INS sought to remove Altamirano when she attempted to enter the United States in a vehicle in which an illegal alien was hiding in the trunk. Altamirano does not dispute that she knew the alien was in the trunk when the vehicle attempted to pass through the port of entry. Altamirano contends, how- ever, that because she did not affirmatively assist the alien in attempting to enter the United States, she did not engage in alien smuggling. In addition, Altamirano argues that the BIA impermissibly streamlined her appeal. The government argues, however, that § 212(a)(6)(E)(i)’s prohibition against alien smuggling encompasses Altamirano’s conduct, and therefore that the IJ properly determined that she is inadmissi- ble. The government further argues that the IJ erred in assum- ing that the government bears the burden of proof rather than placing the burden on Altamirano to prove that she was admissible. See id. § 240(c)(2), 8 U.S.C. § 1229a(c)(2). We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of removal. We hold that Altamirano’s mere presence in the vehicle at the port of entry does not constitute alien smuggling under § 212(a)(6)(E)(i) despite her knowl- 1 INA § 212(a)(6)(E)(i) provides that: “Any alien who at any time know- ingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissi- ble.” 8 U.S.C. § 1182(a)(6)(E)(i) (Supp. V 1999). 14848 ALTAMIRANO v. GONZALES edge that an alien was hiding in the trunk of the vehicle. The IJ’s determination of inadmissibility was clearly contrary to the plain meaning of the statutory provision. We therefore grant the petition for review.2 I. Background Emma Altamirano, a citizen of Mexico, is married to Miguel Altamirano, a United States citizen. At the time of the events at issue here, Altamirano resided in the United States pursuant to a grant of parole by the Attorney General pending final resolution of the immediate relative visa petition filed by her husband. Altamirano’s parole status allowed her to depart and reenter the United States. Altamirano and her family frequently made trips back and forth to Mexico. On May 20, 2000, Altamirano, her husband, and their two daughters traveled from Ramona, California to Tijuana, Mexico to purchase pinatas. Early the next day, when Altamirano attempted to reenter the United States, she was detained by immigration officers at the port of entry in San Ysidro, California. Altamirano was returning to the United States in the family car along with her husband, who was driving, and her father-in-law, a permanent United States resi- dent. A fourth individual, Juan Manuel Martinez-Marin, a Mexican citizen, was hiding in the trunk. Altamirano, her hus- band, and her father-in law were all aware that Martinez- Marin was in the trunk when they attempted to enter the United States. At the primary inspection station, the officers inspected the vehicle and discovered Martinez-Marin in the trunk. Altamirano was subsequently denied admission to the United States because she allegedly engaged in alien smug- gling in violation of INA § 212(a)(6)(E)(i). 2 Because the IJ did not make an adverse credibility determination, we accept Altamirano’s testimony as credible. See Shoafera v. INS, 228 F.3d 1070, 1074 n.3 (9th Cir. 2000). ALTAMIRANO v. GONZALES 14849 At the July 30, 2001 removal hearing, Altamirano and her husband testified that they decided to return to California on May 21 because they had forgotten several items at home. Altamirano’s husband explained that he needed to retrieve their daughters’ birth certificates in order for their daughters to reenter the United States and that Altamirano needed to accompany him because she knew where the documents were located. He further testified that Altamirano accompanied him because they are “always together.” When questioned by immigration officers following the primary inspection of the vehicle, Altamirano informed the officers that she knew that her father-in-law had made plans with a friend to transport Martinez-Marin into the United States. She admitted that her husband had told her of the plan the night before.3 She also knew that Martinez-Marin was in the trunk when she got into the vehicle. Altamirano testified, however, that she did not see Martinez-Marin before they were detained; she did not know his name prior to their deten- tion and she did not know his final destination. When the officers discovered Martinez-Marin in the trunk during the primary inspection of the vehicle, they detained Altamirano. Although Altamirano was not charged with a criminal offense, the Immigration and Naturalization Service (“INS”) initiated removal proceedings against her. The INS served her with a Notice to Appear, alleging that she was an “arriving alien” who “knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law” and was subject to removal from the United States pursuant to INA § 212(a)(6)(E)(i). 3 Emma and Miguel Altamirano provided inconsistent testimony regard- ing when each had knowledge of the smuggling effort. The IJ concluded, however, that “the record appears undisputed that respondent knew of the smuggling plan several hours prior to the vehicle’s arrival at the port of entry.” 14850 ALTAMIRANO v. GONZALES Following a hearing on July 30, 2001, the IJ issued an oral decision. The IJ noted that Altamirano testified that “she was not involved in the planning of the smuggling attempt” and “was not involved in the placing of Martinez-Marin into the trunk of the car.” In addition, the IJ found that Altamirano did not know whether her father-in-law would be paid for his assistance and that “her involvement in the smuggling attempt was limited to her knowledge that Martinez-Marin was in the trunk of the vehicle and her presence in the vehicle during the primary and secondary inspections.” On the basis of these findings, the IJ determined that with the “knowledge [that Martinez-Marin was in the trunk], respondent was present in the vehicle and was equally as culpable at that point, with her husband, and her father-in-law, in the effort to assist and aid Mr. Martinez-Marin’s unlawful entry into the United States from Mexico.” The IJ therefore concluded that Altamirano was inadmissible pursuant to INA § 212(a)(6)(E)(i). Altami- rano appealed to the BIA, which, in a streamlined decision, affirmed the results of the IJ’s decision. See 8 C.F.R. § 3.1(e)(4) (2003). In Altamirano’s petition for review, she argues that although she was present in the vehicle and knew that Martinez-Marin was in the trunk, she did not “encourage[ ], induce[ ], assist[ ], abet[ ] or aid[ ]” another alien to enter the United States in violation of § 212(a)(6)(E)(i). Additionally, she challenges the BIA’s decision to streamline her appeal on the ground that the issue before the IJ—whether her presence in the vehicle with her knowledge that Martinez-Marin was in the trunk constituted alien smuggling in violation of § 212(a)(6)(E)(i)—was not controlled by precedent. See id. § 3.1(e)(4)(A). II. Burden of Proof In the IJ’s decision finding Altamirano inadmissible, the IJ concluded that “the government has provided clear, cogent and convincing evidence that respondent has violated Section ALTAMIRANO v. GONZALES 14851 212(a)(6)(E)(i)” of the INA, citing Woodby v. INS, 385 U.S. 276 (1966). The government argues that the IJ erred in con- cluding that the government bears the burden of proof because under INA § 240(c)(2) Altamirano bears the burden of establishing that she is admissible. [1] In removal proceedings, an alien who is “an applicant for admission” bears the burden of establishing that she “is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 1182 of this title; or . . . by clear and convincing evidence, that the alien is lawfully present in the United States pursuant to a prior admission.” INA § 240(c)(2), 8 U.S.C. § 1229a(c)(2) (Supp. V 1999); see also 8 C.F.R. § 240.8(b) (2000) (“Arriving Aliens. In proceedings commenced upon a respondent’s arrival in the United States or after the revocation or expiration of parole, the respondent must prove that he or she is clearly and beyond a doubt enti- tled to be admitted to the United States and is not inadmissi- ble as charged.”). On the other hand, when an alien has been admitted to the United States, “the Service has the burden of establishing by clear and convincing evidence that . . . the alien is deportable.” INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c) (3)(A) (Supp. V 1999). The government argues that Altamirano is a parolee and is therefore an “applicant for admission” who bears the burden of proof. We agree. Under INA § 212(d)(5), the Attorney General has the discretion to “parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.” Id. § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). Parole status, however, “shall not be regarded as an admission of the alien,” id., and is not a “law- ful entry of the alien into the United States.” Id. § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).4 4 INA §101(a)(13) provides, in relevant part: (A) The terms “admission” and “admitted” mean, with respect to 14852 ALTAMIRANO v. GONZALES [2] Accordingly, the IJ erred when he placed the burden of proof on the government. As a parolee under INA § 212(d)(5), Altamirano was an applicant for admission when she attempted to enter the United States on May 21, 2000. She therefore bore the burden of establishing that she was “clearly and beyond doubt entitled to be admitted and is not inadmissi- ble under section 1182.” Id. § 240(c)(2)(A), 8 U.S.C. § 1229a(c)(2)(A). Nonetheless, the improper allocation of the burden of proof does not affect our ultimate disposition of this case. Here, determining whether Altamirano was inadmissible under INA § 212(a)(6)(E)(i) is a matter of statutory construc- tion. Because we conclude that the plain text of the alien smuggling provision does not encompass Altamirano’s con- duct, the allocation of the burden of proof is not dispositive of the ultimate question of Altamirano’s admissibility. III. INA § 212(a)(6)(E)(i) Altamirano challenges the IJ’s determination that she vio- lated § 212(a)(6)(E)(i) because she was present in the vehicle an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. (B) An alien who is paroled under section 1182(d)(5) of this title . . . shall not be considered to have been admitted. 8 U.S.C. § 1101(a)(13) (Supp. V 1999). Further, 8 C.F.R. § 1.1(q) (2000) provides: The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of- entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains such even if paroled pur- suant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for pur- poses of section 235(b)(1)(A)(i) of the Act. ALTAMIRANO v. GONZALES 14853 and knew that Martinez-Marin was in the trunk at the port of entry. When, as here, the BIA affirms the IJ’s decision with- out opinion, we review the IJ’s decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir. 2004) (citing Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003)). “We review purely legal questions concerning the meaning of the immigration laws de novo.” Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir. 2004) (citing Murillo- Espinoza v. INS, 261 F.3d 771, 773 (9th Cir. 2001)). As Altamirano “offers no objections to the IJ’s findings of fact, this case presents a legal question that we review de novo.” Perez-Enriquez v. Gonzales, 411 F.3d 1079, 1081 (9th Cir. 2005) (citing Shivaraman v. Ashcroft, 360 F.3d 1142, 1145 (9th Cir. 2004) and Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995)). The IJ determined that Altamirano’s presence in the vehicle with knowledge that Martinez-Marin was hiding in the trunk constituted a violation of § 212(a)(6)(E)(i). The IJ emphasized that this conclusion was not based on “any theory involving a conspiracy entered into by respondent, her husband, and her father-in-law.” Rather, the IJ found that when Altamirano arrived at the port of entry, she, like her husband and father- in-law, knew that “there was an undocumented and unautho- rized Mexican national in the trunk of the car.” As noted, the IJ concluded that “[w]ith that knowledge, respondent was present in the vehicle and was equally as culpable at that point, with her husband, and her father-in-law, in the effort to assist and aid Mr. Martinez-Marin’s unlawful entry into the United States from Mexico.” In sum, the IJ reasoned, Although it is true that respondent does not appear to have been involved in the planning stages of the smuggling attempt, or that she assisted in the physi- cal acts of placing Mr. Martinez-Marin into the trunk of the vehicle, she nonetheless made herself equally as culpable as her father-in-law and husband, when she agreed, having knowledge of Mr. Martinez- 14854 ALTAMIRANO v. GONZALES Marin’s presence in the trunk of the vehicle, to accompanying her family members to the United States. The IJ’s reasoning, however, is contrary to the alien smug- gling provision. [3] “The starting point for our interpretation of a statute is always its language.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989). “[W]e begin by looking to the plain meaning of the term[s] at issue.” Padash v. INS, 358 F.3d 1161, 1169 (9th Cir. 2004). Section 212(a)(6)(E)(i) pro- vides that, “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E)(i) (Supp. V 1999).5 The plain meaning of this statutory provision requires an affirmative act of help, assistance, or encouragement. Here, because Altamirano did not affirmatively act to assist Martinez-Marin, she did not engage in alien smuggling. That she was present in the vehicle and knew that Martinez-Marin was in the trunk does not amount to a violation of § 212(a)(6)(E)(i). Thus, the IJ’s conclusion that Altamirano’s mere presence and knowledge constituted alien smuggling is “clearly contrary to the plain and sensible meaning of the stat- ute.” Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003). 5 Similarly, INA § 237(a)(1)(E)(i), which relates to admitted aliens, pro- vides: “Any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable.” 8 U.S.C. § 1227(a)(1)(E)(i) (Supp. V 1999). Prior to 1990, the exclusion and depor- tation smuggling provisions applied to those who knowingly assisted the illegal entry of an alien “for gain.” See id. § 212(a)(31), 8 U.S.C. § 1182(a)(31) (1988); id. § 241(a)(13), 8 U.S.C. § 1251(a)(13). The “for gain” requirement was removed with the enactment of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. ALTAMIRANO v. GONZALES 14855 [4] Indeed, when courts or the BIA have determined that an alien is removable under the INA for having engaged in alien smuggling, the alien has provided some form of affirmative assistance to the illegally entering alien. See, e.g., Moran v. Ashcroft, 395 F.3d 1089, 1091-92 (9th Cir. 2005) (stating that alien paid smugglers to bring his wife and child to the United States); Sidhu v. Ashcroft, 368 F.3d 1160, 1162 (9th Cir. 2004) (explaining that alien agreed in advance to help her nephew illegally enter, guided him through immigration at the airport, and presented his fraudulent documents at the air- port); Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000) (stating that alien paid smugglers to bring his wife and child to the United States); see also Olowo v. Ashcroft, 368 F.3d 692, 697 (7th Cir. 2004) (emphasizing that alien deliv- ered plane tickets to three Nigerian citizens and hid their Nigerian passports from the INS inspectors, and also provided false information and false documents to the INS to assist the Nigerian child to enter illegally); Sanchez-Marquez v. INS, 725 F.2d 61, 63 (7th Cir. 1984) (explaining that alien pre- arranged to drive and drove seven aliens from the Texas- Mexico border to San Antonio); Matter of Arthur, 16 I. & N. Dec. 558, 558 (B.I.A. 1978) (describing how petitioner ille- gally transported aliens into the United States from Panama); Matter of Vargas-Banuelos, 13 I. & N. Dec. 810, 812 (B.I.A. 1971) (stating that alien pre-arranged in Mexico to assist aliens to enter the United States, instructed them where to cross the border undetected, told them where to go in the United States, and arranged for a driver to pick them up once they entered); Matter of Corral-Fragoso, 11 I. & N. Dec. 478, 478-79 (B.I.A. 1966) (explaining that alien pre-arranged in Mexico to transport aliens from El Paso, Texas to Chicago, Illinois and drove them in accordance with the arrangements).6 6 We also note the U.S. Department of State Foreign Affairs Manual’s interpretation of § 212(a)(6)(E)(i): The actions for which a “smuggler” might be found ineligible are numerous. They could be as little as offering an alien a job under circumstances where it is clear that the alien will not enter the 14856 ALTAMIRANO v. GONZALES Moreover, the Sixth Circuit recently has held that an alien is not inadmissible under § 212(a)(6)(E)(i) if the alien did not perform an affirmative act of assistance. See Tapucu v. Gon- zales, 399 F.3d 736, 740-42 (6th Cir. 2005). In Tapucu, Morhay Tapucu and three friends shared driving responsibili- ties during a return trip from Toronto, Canada back to Chi- cago where they resided. Id. at 737. When stopped at the port of entry, Tapucu was driving. One member of the group, Kir- kor Deveci, was a Canadian citizen who had been living ille- gally in Chicago. Id. Tapucu testified that he knew that Deveci had been living illegally in the United States, but he believed that Deveci’s family had applied for permanent resi- dence status for him. Id. The IJ concluded that Tapucu engaged in alien smuggling because “he was driving the van at the time it reached the border, because Tapucu knew that Deveci was living illegally in the United States and because Tapucu failed to correct Deveci’s misstatement to the officers that he had a residence in Toronto, Canada.” Id. at 738. [5] On appeal, however, the Sixth Circuit vacated the IJ’s decision, holding that the facts showed that “Tapucu did not commit a single affirmative act designed to assist an illegal effort by Deveci to cross the border and that indeed Tapucu thought Deveci legally could re-enter the country.” Id. at 739. The court held that the alien smuggling provision “requires an affirmative and illicit act of assistance in shepherding some- one across the border.” Id. at 740. The court further empha- sized that there was no authority for holding that “one may be tagged as a smuggler of aliens without committing a single United States legally in order to accept the employment (encour- age and induce), or they might actually involve physically bring- ing an alien into the United States illegally (aid and assist). 9 U.S. DEP’T OF STATE, FOREIGN AFF. MANUAL § 40.86 n.5 (1995). None- theless, some “action” must occur to render an alien inadmissible or excludable on the basis of alien smuggling. No such action took place here. ALTAMIRANO v. GONZALES 14857 affirmative illicit act.” Id. at 741. We agree with the Sixth Cir- cuit’s interpretation of § 212(a)(6)(E)(i). [6] Our conclusion is buttressed by the well-established meaning of aiding and abetting. We consider the traditional criminal law aiding and abetting doctrine here because § 212(a)(6)(E)(i) imports this concept from criminal law and because the alien smuggling provisions of the INA have been generally analyzed as aiding and abetting statutes. See, e.g., Matter of I— M—, 7 I. & N. Dec. 389, 391 (B.I.A. 1957) (“We agree with counsel that the provisions of section 274 cannot be ‘added to’ section 241(a)(13) to make the crime of ‘transporting’ a deportable offense, where there was no ‘aid- ing and abetting the entry.’ We find that respondent did not aid or abet the entry of the assisted aliens.”); see also Cuevas- Cuevas v. INS, 523 F.2d 883, 884 (9th Cir. 1975) (per curiam) (“Petitioner’s plea of guilty[, admitting that he violated 8 U.S.C. § 1325 and 18 U.S.C. § 2,] established that he know- ingly abetted and aided other aliens to enter the United States in violation of law within the meaning of 8 U.S.C. § 1251(a)(13).”); Matter of Contreras, 18 I. & N. Dec. 30, 32 (B.I.A. 1981) (“The applicant’s plea of guilty to the Title 18 U.S.C. 1325 offense[, conspiracy to aid and abet the illegal entry of aliens,] establishes the first element required to show that he knowingly aided and abetted another alien to enter the United States in violation of law.”).7 7 In several other circumstances, courts have looked to criminal law or other areas of civil law to interpret immigration statutes. For example, in Jordan v. De George, 341 U.S. 223 (1951), the Supreme Court held that in deciding whether a crime is one involving “moral turpitude” under the Immigration Act of 1917, the Court must “look to the manner in which the term ‘moral turpitude’ has been applied by judicial decision.” Id. at 227. Noting cases outside the immigration context, the Court stated “[w]ithout exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude.” Id. We also look to criminal law principles to determine whether a criminal conviction constitutes an aggravated felony or a crime of violence for immigration purposes. See, e.g., Penuliar v. Ashcroft, 395 F.3d 1037, 1041-46 (9th Cir. 2005) (apply- ing the analytical framework of Taylor v. United States, 495 U.S. 575 (1990), which governs the categorization of crimes for the purpose of sen- tencing enhancements, to determine whether a crime is an “aggravated fel- ony” or a “crime of violence” under the INA removal provisions). 14858 ALTAMIRANO v. GONZALES [7] It is well-established that “[i]n order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he partici- pate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ ” Nye & Nissen v. United States, 336 U.S. 613, 619 (1949) (quoting United States v. Peoni, 100 F.2d 401, 402 (2nd Cir. 1938) (Hand, J.) (emphasis added)). A defendant cannot be convicted of aiding and abetting absent an affirmative act of assistance in the commission of the crime. See United States v. Atkinson, 966 F.2d 1270, 1274 (9th Cir. 1992) (holding that the district court’s jury instructions on aiding and abetting were proper because they “clearly informed the jury they could convict Atkinson only if they found he took some affirmative step to assist in the commission of a crime”). This common under- standing of aiding and abetting is reflected in Ninth Circuit Model Criminal Jury Instruction 5.1. The model instruction admonishes jurors that: “It is not enough that the defendant merely associated with the person committing the crime, or unknowingly or unintentionally did things that were helpful to that person, or was present at the scene of the crime.” Ninth Cir. Model Crim. Jury Inst. 5.1 (2005).8 8 Ninth Circuit Model Criminal Jury Instruction 5.1 provides, in full: A defendant may be found guilty of [crime charged], even if the defendant personally did not commit the act or acts constituting the crime but aided and abetted in its commission. To prove a defendant guilty of aiding and abetting, the government must prove beyond a reasonable doubt: First, [crime charged] was committed by someone; Second, the defendant knowingly and intentionally aided, coun- seled, commanded, induced or procured that person to commit each element of [crime charged]; and Third, the defendant acted before the crime was completed. It is not enough that the defendant merely associated with the person committing the crime, or unknowingly or unintentionally did things that were helpful to that person, or was present at the scene of the crime. ALTAMIRANO v. GONZALES 14859 [8] Further, we consistently have held that “mere presence at the scene of the crime and knowledge that the crime is being committed is not enough” to sustain a conviction for aiding and abetting. United States v. Bancalari, 110 F.3d 1425, 1430 (9th Cir. 1997); see also United States v. Negrete- Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992); United States v. Rubio-Villareal, 927 F.2d 1495, 1500-02 (9th Cir. 1991); United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986); Diaz-Rosendo v. United States, 364 F.2d 941, 944 (9th Cir. 1966). The prosecution must prove that “the defendant was a participant, and not merely a knowing spectator.” United States v. Gaskins, 849 F.2d 454, 460 (9th Cir. 1988). In United States v. Sanchez-Mata, 925 F.2d 1166 (9th Cir. 1991), for instance, we considered whether there was suffi- cient evidence to support a conviction of aiding and abetting possession with intent to distribute narcotics. Despite evi- dence that Sanchez-Mata was a passenger in a vehicle carry- ing 141 pounds of marijuana, and that he likely knew the marijuana was in the vehicle because of its strong odor, we concluded that “the evidence against Sanchez-Mata for aiding and abetting is nonexistent. Sanchez-Mata’s presence as a passenger in the car cannot support an aiding and abetting the- ory.” Id. at 1169 (emphasis added). [9] Similarly, here, Altamirano’s mere presence in the vehi- cle with knowledge that Martinez-Marin was in the trunk does not amount to aiding and abetting or assisting the illegal entry of an alien. Section 212(a)(6)(E)(i) requires an act of assis- tance or encouragement. There is no evidence of any such affirmative act here. The government argues that Altami- The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping that person commit [crime charged]. The government is not required to prove precisely which defen- dant actually committed the crime and which defendant aided and abetted. 14860 ALTAMIRANO v. GONZALES rano’s presence in the car provided an air of normalcy and legitimacy that assisted in ensuring Martinez-Marin’s illegal entry. This, however, was not the basis for the IJ’s decision. We “may not accept appellate counsel’s post hoc rationaliza- tions for agency action; Chenery requires that an agency’s discretionary order be upheld, if at all, on the same basis artic- ulated in the order by the agency itself . . . .” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962) (cit- ing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). Further, the record does not support this theory. There is no evidence that Altamirano’s presence, or a passenger’s pres- ence in general, would make the immigration officers at the border less suspicious. Nor is there evidence that the immigra- tion officers knew that Altamirano and her husband regularly made trips from the United States to Mexico. It is just as likely that Altamirano’s husband and father-in-law routinely made such trips without Altamirano. We therefore cannot accept the government’s litigation theory, which neither formed the basis for the IJ’s determination nor finds support in the record. [10] Thus, we conclude that Altamirano’s mere presence in the vehicle with knowledge of the plan did not constitute alien smuggling under § 212(a)(6)(E)(i). The IJ’s determination to the contrary clearly contradicted the statutory requirement that a violation involve an affirmative act of assistance or encouragement. We therefore grant the petition for review.9 IV. Conclusion We conclude that Altamirano was an applicant for admis- sion and bears the burden of proof. See 8 U.S.C. § 1129a(c)(2) (Supp. V 1999). Nonetheless, we hold that INA § 212(a)(6)(E)(i) requires an affirmative act of assistance or 9 In light of our disposition, we need not address Altamirano’s argument that the BIA erred in streamlining her appeal. ALTAMIRANO v. GONZALES 14861 encouragement and that the IJ’s conclusion that Altamirano violated § 212(a)(6)(E)(i) without such an act is clearly con- trary to the plain language of the INA. We therefore grant the petition for review and remand to the IJ with instructions to grant Altamirano’s motion to terminate removal proceedings against her. PETITION GRANTED. RYMER, Circuit Judge, concurring in part and dissenting in part: I agree that the immigration judge improperly placed the burden of proof regarding inadmissibility on the government rather than on Altamirano. And while I generally agree with the majority’s construction of § 212(a)(6)(E)(i) of the Immi- gration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6) (E)(i), and the well-established aiding and abetting principles which it embodies, I part company over the application of those principles and the statute to the facts of this case. I do not think the IJ was compelled to find that Altamirano did not affirmatively assist or encourage her husband and father-in-law. The question is not whether Altamirano’s knowledge of illegal activity and mere presence in the car suf- fice to bring her within the terms of the statute, but whether her deliberate presence in the car when it crossed the border, knowing that her husband and father-in-law were smuggling an illegal alien in the trunk of the car, supports a finding that she joined them in the car and stayed in the car for the pur- pose of facilitating the smuggling. It does, because Altami- rano’s getting into the car and not getting out at the border were affirmative acts that assisted the alien smuggling plan by making it less likely that the car would be stopped. Altami- rano knew about her husband’s and father-in-law’s plan to smuggle Martinez-Marin into the country in the trunk of the 14862 ALTAMIRANO v. GONZALES car when she agreed to travel with them from Tijuana back to Ramona at 4:30 a.m. She admitted that no one forced her to go with them. Altamirano also knew that she could have left the car and walked across the border, rather than remain as a passenger, when the car reached the primary inspection sta- tion. And, contrary to the account her husband gave about the reason they were returning to the United States and why Altamirano had to come along, she could not give a coherent explanation of the reason for their trip. Together, these facts support a reasonable inference that Altamirano was fully on board the program, thereby affirmatively helping to bring the illegal alien across the border. I would, therefore, deny the petition.	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Jackie Anderson, Patrick Cockerham, Diann Banks, Herbert Lenton, and Mable Caleb v. Terry Grier, Superintendent of the Houston Independent School District Appellate case number: 01-15-00285-CV Trial court case number: 2010-21712 Trial court: 164th District Court of Harris County This is an accelerated interlocutory appeal. Appellee Terry Grier has filed an “Unopposed Motion for Extension of Time to File Appellants’ Brief and All Other Deadlines in this Appeal.” The motion requests an extension of time of approximately four months, until June 1, 2016, for the filing of appellants’ reply brief in order to facilitate mediation, because the parties have agreed to mediate the underlying dispute. The Court determines that it is appropriate to refer this appeal for resolution by mediation. See Tex. Civ. Prac. & Rem. Code §§ 154.021, 154.022(a), 154.023. Accordingly, the Court orders that this appeal be referred to mediation unless any party to the appeal files an objection with the Clerk of this Court within ten days after receiving this order. See id. § 154.022(b). The parties shall choose a qualified mediator and agree on a reasonable fee for the mediator’s services.* See id. §§ 154.052, 154.054(a). When the parties notify the Clerk of this Court of the name of the mediator, that person shall be deemed appointed by the Court. See id. § 154.051. The parties should provide the mediator with a completed “Notification to Mediator” and the “Appointment and Fee Report—Mediation” form. These documents can be downloaded from the forms page of the Court’s website at http://www.txcourts.gov/1stcoa/practice-before-the- court/forms.aspx. The Court sets the following deadlines: * The Court does not recommend mediators. Mediation information is available from the Dispute Resolution Center of Harris County (713.755.8274) and http://www.co.harris.tx.us/DRC), the Fort Bend Dispute Resolution Center (281.342.5000), the Alternate Dispute Resolution Section of the State Bar of Texas (http://www.texasadr.org/), and other groups. The parties are not required to use a mediator recommended or listed by these groups. • No later than February 17, 2016, the parties shall file with the Clerk of this Court a completed “Parties’ Notification to Court of Mediator.” This document can be downloaded from the forms page of the Court’s website at http://www.txcourts.gov/1stcoa/practice-before-the-court/forms.aspx. • No later than March 18, 2016, the parties shall conduct the mediation. • No later than three days from the conclusion of the mediation, the parties and the mediator shall advise the Clerk of this Court in writing whether the parties did or did not settle the underlying dispute, and the mediator shall file with the Clerk of this Court a completed “Appointment and Fee Report—Mediation” form. This document can be downloaded from the forms page of the Court’s website at http://www.txcourts.gov/1stcoa/practice-before-the-court/forms.aspx. • In the event the underlying dispute is not settled by mediation, appellants’ reply brief will be due April 2, 2016. All parties, or their representative with full settlement authority, shall attend the mediation with their counsel. The mediator shall encourage and assist the parties in reaching a settlement of their dispute, but may not compel or coerce the parties to enter into a settlement agreement. See id. § 154.053(a). All communications relating to the mediation are confidential and not subject to disclosure, except as set forth by law. See id. § 154.073. The Clerk of this Court, however, will file this order, any objection to this order, and the completed “Parties’ Notification to Court of Mediator” and “Appointment and Fee Report—Mediation” forms with the other documents filed in this appeal that are available for public inspection. Unless expressly authorized by the disclosing party, the mediator may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute. See id. § 154.053(b). Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including this Court. See id. § 154.053(c). The Court will consider the agreed fee for the mediator’s services to be reasonable and tax that fee as a cost of the appeal unless the parties agree to another method of payment. See id. § 154.054. Accordingly, the motion to extend is granted in part. The case will be withdrawn from the active submission docket pending receipt of the Appointment and Fee Report. It is so ORDERED. Judge’s signature: /s/ Michael Massengale___________________  Acting individually Date: February 4, 2016	{ "pile_set_name": "FreeLaw" }
220 F.3d 1313 (Fed. Cir. 2000) ALBERT D. GREEN and GEORGE K. SWERDA, Petitioners,v.GENERAL SERVICES ADMINISTRATION, Respondent. 99-3280 United States Court of Appeals for the Federal Circuit DECIDED: July 18, 2000 Appealed from: Merit Systems Protection Board United States Court of Appeals for the Federal CircuitDaniel Minahan, Minahan and Shapiro, P.C., of Lakewood, Colorado, for petitioners. Mark L. Josephs, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Harold D. Lester, Jr., Assistant Director. Of counsel was Anthony H. Anikeeff, Attorney. Before NEWMAN, CLEVENGER, and SCHALL, Circuit Judges. SCHALL, Circuit Judge. 1 Albert D. Green and George K. Swerda ("Petitioners") petition for review of the final decision of the Merit Systems Protection Board ("Board") that dismissed their appeals for lack of jurisdiction. See Green v. General Servs. Admin., Nos. DE-0752-97 -0524-I-1, -0523-I-1, -0525-I-1 (Apr. 28, 1999) ("Green II").1 Petitioners were challenging the General Services Administration's ("agency's") denial of their requests to withdraw from their separation agreements. The Board determined that the agency had a valid reason for denying Petitioners' requests to withdraw from the agreements. See id., 82 M.S.P.R. at 51-52. The Board also determined that Petitioners had not established that their requests were based on extraordinary circumstances or that denials of the requests would result in extreme hardship. See id., 82 M.S.P.R. at 53. Because Petitioners' separations were otherwise voluntary, the Board dismissed their appeals for lack of jurisdiction. See id. We affirm. BACKGROUND 2 * The pertinent facts are not in dispute. While Petitioners were employed by the agency, the agency conducted several buyout programs in order to reduce its workforce. Pursuant to one of these programs, Petitioners were offered voluntary separation incentive payments in exchange for their voluntary separations. A letter describing the program cautioned employees that if they elect to participate in the program they "will be held to that commitment unless . . . [they] can provide management with proof of an extreme hardship or extraordinary circumstances. . . . Please note that few exceptions will be made." Another document describing the program stated that "[a]n example of such an extraordinary circumstance would be the unexpected death of a spouse." 3 Petitioners entered into separation agreements in March of 1995, indicating that they desired to be separated on December 31, 1996, the last day they could separate under the program. After entering into the agreements, but before their separation dates, Petitioners tried to withdraw from their separation agreements. 4 Mr. Green alleges that he first requested to withdraw from his separation agreement in a letter dated July 26, 1996. In this letter, Mr. Green referenced the death of his wife the previous week, and stated that his doctor recommended that he keep working to preserve his health and well-being. Mr. Green also asserted in the letter that his continued employment would benefit the agency because of his unique knowledge and experience. 5 According to the agency, Mr. Green's July 1996 letter never was received by the agency's Buyout Committee. The Buyout Committee based its decision on Mr. Green's request on a March 1997 letter from Mr. Rosser, Director, DFC Service Center, to Gail T. Lovelace, Director, Office of Personnel. In his letter, Mr. Rosser did not mention Mr. Green's July 26 letter or the death of Mr. Green's wife. He referenced instead a September 25, 1996 request by Mr. Green to withdraw from his separation agreement, and recommended that Mr. Green be permitted to remain employed because he had unique knowledge and experience that was of value to the agency. 6 Mr. Swerda requested to withdraw from his separation agreement in a letter dated May 16, 1996, citing an unexpected change in his financial circumstances. Mr. Swerda stated in his letter that he recently had bought a new house and would not be able to afford his house payments and other obligations once he retired. Mr. Swerda explained that these circumstances were unexpected because, after he had committed to buying the house, he learned that he had less money to put towards a down payment than he originally had thought, and his wife learned that she was going to be released from her private-sector job as part of a down-sizing effort. 7 The agency denied Petitioners' requests on administrative grounds. In support of its decisions, the agency referenced its need to reduce its workforce and noted that it viewed the buyout program as the primary means of achieving that goal while minimizing administrative disruption. The agency stated that its policy was "to approve only those few withdrawals which reflect the most extreme circumstances." Because the agency did not find either of Petitioners' circumstances to be extraordinary, it decided to enforce the terms of the separation agreements, although it did extend Petitioners' separation dates to March 31, 1997. 8 In due course, Petitioners separated from the agency and received voluntary separation incentive payments in accordance with their agreements. II 9 Petitioners appealed the denial of their withdrawal requests to the Board. In an initial decision, the administrative judge ("AJ") to whom the case was assigned reversed the agency's decision and ordered the agency to reinstate Petitioners. See Green v. General Servs. Admin., Nos. DE-0752-97-0524-I-1, -0523-I-1, -0525-I-1 (Oct. 31, 1997) ("Green I"). The AJ applied 5 C.F.R. § 715.202(b), which permits an agency to deny an employee's request to withdraw his resignation only if the agency has a valid reason for the denial. See id., slip op. at 7. The AJ determined that the agency had not proved that it had a valid reason for denying Petitioners' requests. See id. Specifically, the AJ concluded that the agency had not proved that granting the requests would have resulted in administrative disruption or would have required the displacement of other employees. See id., slip op. at 17. In reaching this conclusion, the AJ rejected the agency's argument that its articulated policy of granting withdrawal requests in only limited circumstances provided a valid reason for denying Petitioners' requests. See id. 10 The agency petitioned the Board for review of the initial decision. The Board granted the petition and then reversed the AJ's decision and dismissed Petitioners' appeals for lack of jurisdiction. See Green II, 82 M.S.P.R. at 48. The Board, like the AJ, applied 5 C.F.R. § 715.202(b). See id., 82 M.S.P.R. at 51-52. The Board cited Perrine v. General Servs. Admin., 81 M.S.P.R. 155 (1999), for the proposition that the separation agreements alone did not provide a valid reason for denying the withdrawal requests. See Green II, 82 M.S.P.R. at 51-52. The Board nevertheless determined that the agency had established a valid reason for the denials, pointing to the reasons it had relied on inPerrine. See Green II, 82 M.S.P.R. at 51-52. In Perrine, the Board determined that "it was crucial to the success of the [agency's workforce reduction] plan to hold most employees to their buyout commitments." Perrine, 81 M.S.P.R. at 163. "[T]he agency thus had a valid reason for denying requests, except under its hardship policy." Id. The Board here determined that Petitioners had not satisfied the agency's hardship requirement, finding that "the reasons cited by . . . [Petitioners] were not entirely unforeseeable at the time they signed the Separation Agreements and do not approach the hardship example the Agency gave of the unexpected death of a spouse." SeeGreen II, 82 M.S.P.R. at 53. The Board therefore concluded that the agency had properly denied Petitioners' withdrawal requests. See id. Because Petitioners' separations were otherwise voluntary, the Board determined that it lacked jurisdiction over their appeals. See id. 11 Petitioners appeal the Board's decision. We have jurisdiction pursuant to 5 U.S.C. § 7703. DISCUSSION 12 Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Kewley v. Department of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). 13 The scope of the Board's jurisdiction is a legal question that we review de novo. See Tretchick v. Department of Transp., 109 F.3d 749, 751 (Fed. Cir. 1997). "The Board lacks jurisdiction to hear an appeal from an employee who has voluntarily resigned." Id. However, an employee generally has the right to withdraw his resignation before its effective date. See id. Accordingly, if the agency wrongfully denied Petitioners' withdrawal requests, their separations were, in effect, involuntary, and the Board would have jurisdiction over their appeals. See id. at 751-52. 14 * We first address whether 5 C.F.R. § 715.202(b) applies to Petitioners' withdrawal requests. Although both the AJ and the Board applied this regulation, the agency argues that this regulation does not govern Petitioners' withdrawal requests. Specifically, the agency argues that 5 C.F.R. § 715.202(b) applies only when 5 C.F.R. § 715.202(a) applies, and that 5 C.F.R. § 715.202(a) does not apply when a separation agreement is in place. We disagree. 15 The text of 5 C.F.R. § 715.202 is as follows: Resignation 16 (a) General. An employee is free to resign at any time, to set the effective date of his resignation, and to have his reasons for resigning entered in his official records. 17 (b) Withdrawal of resignation. An agency may permit an employee to withdraw his resignation at any time before it has become effective. An agency may decline a request to withdraw a resignation before its effective date only when the agency has a valid reason and explains that reason to the employee. A valid reason includes, but is not limited to, administrative disruption or the hiring or commitment to hire a replacement. Avoidance of adverse action proceedings is not a valid reason. 18 The agency contends that, once an employee has entered into a voluntary separation agreement, he is no longer "free to resign at any time . . . [or free] to set the effective date of his resignation," as set forth in 5 C.F.R. § 715.202(a). Instead, the agency argues, he is bound by the terms of the agreement. We see no difference, however, between the circumstances of an employee who is considering whether to enter into a voluntary separation agreement and an employee who is considering whether to resign voluntarily. Both employees are free to resign or not. Even if the voluntary separation agreement requires the employee to separate on a certain date, an employee who chooses to enter into the agreement is, in effect, choosing that date as his separation date. Moreover, Petitioners' separation agreements contained blanks, apparently completed by Petitioners, for "Desired Date of Separation." This indicates that Petitioners had some control over their separation dates. We also see no difference between the circumstances of an employee who has entered into a voluntary separation agreement and an employee who has tendered his resignation. Both have decided to leave their positions and have set effective dates for their departures. We therefore reject the agency's argument that Petitioners are not encompassed by section 715.202(a), and conclude that Petitioners' withdrawal requests are governed by section 715.202(b). This conclusion is consistent with our decision in Tretchick. There, we applied 5 C.F.R. § 715.202(b) where the employee had entered into a voluntary separation agreement as she was required to do under the terms of a settlement agreement. See Tretchick, 109 F.3d at 751-52. II 19 Having decided that 5 C.F.R. § 715.202(b) applies to Petitioners' withdrawal requests, we must determine whether the agency had a valid reason for denying the requests. See 5 C.F.R. § 715.202(b). 20 Petitioners argue that the agency must demonstrate that the granting of their withdrawal requests would have led to administrative disruption. Petitioners assert that the agency cannot meet this burden because it would have been able to meet its workforce reduction goals even if it had permitted them to withdraw from their separation agreements and remain employed. The agency responds that its policy of granting withdrawal requests under only extraordinary circumstances gave it a valid reason for denying Petitioners' withdrawal requests. 21 In Tretchick, we stated that "[t]he employee's commitment to resign under the terms of a settlement agreement is a valid reason for an agency to refuse to accept her withdrawal." Tretchick, 109 F.3d at 751. Although there are differences between a settlement agreement and Petitioners' voluntary separation agreements, see Perrine, 81 M.S.P.R. at 166 & n.* (Slavet, Vice Chair, concurring), we see no reason why the separation agreements at issue here should not provide a valid reason supporting the agency's denial of Petitioners' withdrawal requests. When the agency initiated its buyout programs, it notified its employees that a decision to enter into a separation agreement should not be made lightly. Indeed, it emphasized several times in several different publications relating to the programs that employees would be held to the agreements unless they met the agency's hardship requirement. Thus, unlike an employee who merely tenders his resignation, Petitioners entered into the separation agreements knowing that they would be held to them unless extraordinary circumstances arose before their separation dates. This limitation on the ability to withdraw from the agreements was, in effect, a term of the separation agreements. The agency therefore had a valid reason for denying Petitioners' withdrawal requests unless Petitioners satisfied the agency's hardship requirement. III 22 The Board interpreted 5 C.F.R. § 715.202(b) as giving the agency discretion in deciding whether an employee has satisfied its hardship requirement and, therefore, in deciding whether to deny an employee's withdrawal request. See Green II, 82 M.S.P.R. at 53. In our view, the Board's determination that the regulation vests the agency with discretion as to whether to permit an employee to withdraw from a separation agreement is correct, because the regulation uses the word "may." See 5 C.F.R. § 715.202(b) ("An agency may permit an employee to withdraw his resignation . . . . An agency may decline a request to withdraw a resignation . . ." (emphasis added).);Hubbard v. Merit Sys. Protection Bd., 205 F.3d 1315 (Fed. Cir. 2000) ("Words such as 'may' . . . show a[n] . . . intent to provide . . . broad discretion" (internal quotations omitted).). The Board determined that the agency did not abuse its discretion when it concluded that Petitioners did not satisfy the agency's hardship requirement. Having carefully considered the facts of the case, we see no reason to disturb that determination. 23 Mr. Green argues that he should have been permitted to withdraw from his separation agreement because his wife had passed away shortly before he submitted his withdrawal request. However, Mr. Green did not rely on his wife's death as the basis for his request. Even in his July 26 letter he emphasized his value to the agency as the reason he should be permitted to remain employed. Moreover, Mr. Green acknowledged that his wife's death did not have any significant impact on his financial situation. Under these circumstances, we see no error in the Board's decision that the agency did not abuse its discretion when it determined that Mr. Green had not satisfied the agency's hardship requirement. 24 Mr. Swerda argues that he should have been permitted to withdraw from his separation agreement because of his changed financial circumstances. Mr. Swerda's circumstances, however, were largely of his own making. Mr. Swerda and his wife purchased their new house after he had entered into the separation agreement, when he should have known that his retirement would have an impact on his financial condition. Mr. Swerda's request letter admits that he could "make it" without his reemployment, but would likely have to get a new job or sell the house. Under these circumstances, we cannot fault the Board's decision to uphold the agency's determination that Mr. Swerda's financial situation did not rise to the level of "extraordinary circumstances" or "extreme hardship" that would have required the agency to grant his withdrawal request. CONCLUSION 25 The Board's decision that the agency did not abuse its discretion when it denied Petitioners' requests to withdraw from their separation agreements is free of legal error and is supported by substantial evidence. Because Petitioners' separations were otherwise voluntary, the Board lacked jurisdiction over their appeals. We therefore affirm the final decision of the Board that dismissed Petitioners' appeals for lack of jurisdiction. AFFIRMED 26 Each party shall bear its own costs. NOTES: 1 The Board consolidated the appeals of three separate petitioners: Mr. Green, No. DE-0752-97-0524-I-1, Mr. Swerda, No. DE-0752-97-0523-I-1, and Ms. Hicklin, DE-0752-97-0525-I-1. Ms. Hicklin did not appeal the Board's decision, which was in her favor.	{ "pile_set_name": "FreeLaw" }
204 F.Supp.2d 178 (2002) Walter P. HUGHES, Plaintiff, v. Thomas McMENAMON, Jr., America Online, Inc., Defendants. Civil Action No. 200110981RBC[1]. United States District Court, D. Massachusetts. May 28, 2002. 179 Walter P. Hughes, Andover, MA, for Plaintiff. Maurice J. Lariviere, Jr., Methuen, Joseph L. Tehan, Jr., Kopelman & Paige, P.C., Katharine I. Goree, Kopelman & Paige, Paul Holtzman, Krokidas & Bluestein, Boston, MA David Ogden, Wilmer Cutler & Pickering, Washington, DC, for Defendants. MEMORANDUM AND ORDER ON DEFENDANT AMERICA ONLINE, INC.'S MOTION FOR SUMMARY JUDGMENT ON THE FORUM SELECTION CLAUSE (# 47) COLLINGS, United States Magistrate Judge. I. INTRODUCTION On April 16, 2002, defendant America Online, Inc. ("AOL") moved pursuant to Fed.R.Civ.P. 56 for the entry of summary judgment in its favor on the basis of the forum selection clause in the contract between it and the plaintiff, Walter P. Hughes ("Hughes"). In support of its motion, AOL filed Defendant America Online, Inc.'s Statement of Undisputed Facts (Local Rule 56.1)(# 48), Defendant America Online, Inc.'s Memorandum in Support of its Motion for Summary Judgment on the Forum Selection Clause (# 49), the Declaration of Carrie Davis (# 51) and the Appendix to Defendant America Online, Inc.'s Memorandum in Support of its Motion for Summary Judgment on the Forum Selection Clause (# 50). Although the period for opposing the motion has elapsed under D. Mass., Local Rule 7.1(B)(2), Hughes has not filed an opposition. AOL's motion (# 47) is in a posture for resolution. For the reasons stated in section IV, infra, the Court will treat AOL's summary judgment motion as a motion to dismiss for failure to 180 state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). II. THE STANDARD The standard to be applied when deciding a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., has often been repeated. It is incumbent upon the court to "accept the complaint's allegations as true, indulging all reasonable inferences in favor of [the plaintiff]." Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir.,1997); Hogan v. Eastern Enterprises/Boston Gas, 165 F.Supp.2d 55, 57 (D.Mass.,2001). Indeed, more than forty years ago the Supreme Court declared that "a complaint should not be dismissed 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 that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Pursuant to Fed.R.Civ.P. 10(c), "[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." Similarly, when "a complaint's factual allegations are expressly linked toand admittedly dependent upona document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6)." Beddall v. State St. Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.,1998); see also Blackstone Realty LLC v. Federal Deposit Insurance Corporation, 244 F.3d 193, 195 n. 1 (1st Cir.,2001). III. THE FACTS On June 8, 2001, Hughes filed suit against AOL and Officer Thomas McMenamon of the Methuen Police Department, alleging various causes of acting arising from AOL's release of Hughes' name, address and age to Officer McMenamon. Complaint (# 1) ¶¶ 22, 45-104. AOL released the information in response to a request from Officer McMenamon, who had received a print-out of a threatening electronic mail message ("e-mail") allegedly sent from an AOL account. # 1 ¶¶ 19, 21. At all times relevant to this action, AOL provided e-mail service to Hughes. # 1 ¶¶ 18, 41. The Terms of Service contract pursuant to which AOL provides e-mail service to its members consists of three portions: the Member Agreement, the Community Guidelines, and the Privacy Policy. # 10, Exh. B, C, D; # 51, Exh. A. Section 8 of the Member Agreement includes a forum selection clause which reads as follows: "You expressly agree that exclusive jurisdiction for any claim or dispute with AOL or relating in any way to your membership or your use of AOL resides in the courts of Virginia ...." # 10, Exh. B; # 51, Exh. A. IV. DISCUSSION AOL originally filed a Fed.R.Civ.P. 12(b)(6) motion (# 9) alleging grounds for dismissal including the forum selection clause. Hughes filed a document titled "Plaintiff's Motion to Defer a Hearing on America Online, Inc.'s Motion to Dismiss" (# 14). In an abundance of caution and in consideration of the pro se status of the plaintiff, the Court construed that document as questioning the authenticity of the document which AOL alleged to be the contract between the parties. See Johnson v. Rodriguez, 943 F.2d 104, 107 (1 Cir., 1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 948, 117 L.Ed.2d 117 (1992) (construe pro se pleadings liberally). In an Order dated March 29, 2002, the Court denied AOL's motion to dismiss without prejudice to filing a motion supported by evidence satisfying the requirements of Fed. R.Civ.P. 56(e). # 44. 181 AOL responded by filing a summary judgment in which it seeks dismissal of the claims asserted against it based on the forum selection clause. Hughes did not file an Opposition, or any other document disputing the authenticity of the document alleged to be the contract between the parties. The contract is integral to the claims made in the Complaint, and its content is relied upon therein. See # 1 ¶¶ 17, 18, 41, 44. Accordingly, the Court may consider the entirety of the contract as part of the pleadings. Beddall, 137 F.3d at 17; see also Blackstone Realty L.L.C., 244 F.3d at 195. In the First Circuit, a motion seeking dismissal of an action for failure to comply with a forum selection clause is considered a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). See Silva v. Encyclopedia Britannica Inc., 239 F.3d 385, 387 (1 Cir., 2001). The proper remedy for an action which is filed in disregard of a valid forum selection clause is dismissal of the action. See Silva, 239 F.3d at 389; LFC Lessors, Inc. v. Pacific Sewer Maintenance Corp., 739 F.2d 4, 8 (1 Cir., 1984). Now that it is clear there is no dispute as to the contract between the parties, the Court will treat AOL's current motion as being brought pursuant to Fed.R.Civ.P. 12(b)(6). See Lambert v. Kysar, 983 F.2d 1110, 1112 n. 1 (1 Cir., 1993) (treating 12(b)(3) motion seeking dismissal based on a forum selection clause as a 12(b)(6) motion); see also Farnham v. Daar, Inc., 184 F.Supp. 809, 812 (W.D.Mo., 1960) (treating summary judgment motion as motion to dismiss in Fed.R.Civ.P. 17(a) context); Rosenfeld v. Continental Building Operating Co., 135 F.Supp. 465, 470 (W.D.Mo., 1955) (same). "The prevailing view towards contractual forum-selection clauses is that `such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be "unreasonable" under the circumstances.'" Silva, 239 F.3d at 387(quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). Forum selection clauses of the type used by AOL, sometimes referred to as "clickwrap" agreements, have been upheld as valid and enforceable. See, e.g., Caspi v. Microsoft Network, L.L.C., 323 N.J.Super. 118, 126, 732 A.2d 528, 532, cert. denied, 162 N.J. 199, 743 A.2d 851 (1999); Celmins v. America Online, Inc., 748 So.2d 1041, 1041-42 (Fla.Dist.Ct.App.1999). It is undisputed that Hughes agreed to the Terms of Service contract when he became a subscriber to AOL's services. It is clear from the facts alleged in the Complaint, taken in the light most favorable to Hughes, that his claims are "claims or disputes with AOL" which relate to his membership and/or his use of AOL's services. # 1 ¶¶ 22, 45-104. The Court rules that the forum selection clause in the Terms of Service contract is enforceable and Hughes' claims are within its scope. See # 10, Exh. B; # 51, Exh. A. Accordingly, Hughes' claims against AOL fail to state claims upon which relief may be granted and AOL is entitled to their dismissal, without prejudice to Hughes refiling them in a Virginia court. V. ORDER For all the reasons stated, it is ORDERED that Defendant America Online, Inc.'s Motion for Summary Judgment on the Forum Selection Clause (# 47) be, and the same hereby is, ALLOWED to the extent that the claims against America Online, Inc. are DISMISSED pursuant to Fed.R.Civ.P. 12(b)(6). The dismissal is without prejudice to bringing the action against America Online, Inc. in a court 182 which is in compliance with the forum selection clause of the contract. NOTES [1] With the parties' consent, on March 20, 2002, this case has been referred and reassigned to the undersigned for all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c).	{ "pile_set_name": "FreeLaw" }
Fonteboa v Nugget Cab Corp. (2014 NY Slip Op 08599) Fonteboa v Nugget Cab Corp. 2014 NY Slip Op 08599 Decided on December 10, 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 December 10, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department PETER B. SKELOS, J.P. RUTH C. BALKIN LEONARD B. AUSTIN BETSY BARROS, JJ. 2014-02329 (Index No. 14029/11) [*1]Jose Fonteboa, plaintiff, vNugget Cab Corp., et al., respondents, Charles Brucculeri, et al., appellants. Mendolia & Stenz (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Arthur R. Simuro and Donald S. Neumann, Jr.], of counsel), for appellants. Phillip J. Rizzuto, P.C. (Marjorie E. Bornes, Brooklyn, N.Y., of counsel), for respondents. DECISION & ORDER In an action to recover damages for personal injuries, the defendants Charles Brucculeri and Catherine Brucculeri appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Gavrin, J.), dated December 20, 2013, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the defendants Nugget Cab Corp. and Aamir Butt, and the motion of the defendants Charles Brucculeri and Catherine Brucculeri for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted. This action arises out of a three-car, chain-reaction collision. The plaintiff, Jose Fonteboa, was the driver of the lead car, which allegedly was stopped at a traffic light. The defendants Catherine Brucculeri and Charles Brucculeri (hereinafter together the Brucculeris) occupied the second vehicle, which was operated by Catherine Brucculeri. According to the deposition testimony of Catherine Brucculeri, she brought the Brucculeri vehicle to a full stop approximately 10 feet behind the plaintiff's vehicle. The defendants Nugget Cab Corp. and Aamir Butt (hereinafter together the Nugget defendants) are the owner and operator, respectively, of the third car, which, according to Catherine Brucculeri's deposition testimony, struck the Brucculeri vehicle in the rear, propelling it into the plaintiff's vehicle. The Brucculeris moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the Supreme Court denied their motion. The Brucculeris appeal. The Brucculeris established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that Catherine Brucculeri brought the Brucculeri vehicle safely to a stop behind the plaintiff's vehicle before the Brucculeri vehicle was struck in the rear a few seconds later by the Nugget defendants' vehicle (see Raimondo v Plunkitt, 102 AD3d 851, 852; Hill v Ackall, 71 AD3d 829, 829-830; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876, 876-877). In opposition, the Nugget defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the Brucculeris' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them (see Escobar v Rodriguez, 243 AD2d 676, 676). SKELOS, J.P., BALKIN, AUSTIN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Black, 2018-Ohio-4878.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27888 : v. : Trial Court Case No. 2016-CR-1151/2 : DION BLACK : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 7th day of December, 2018. ........... MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant ............. -2- FROELICH, J. {¶ 1} Dion Black was convicted after a jury trial in the Montgomery County Court of Common Pleas of possession of heroin in an amount equal to or exceeding 250 grams, a first-degree felony (R.C. 2925.11(C)(6)(f)), and possession of cocaine in an amount of 10 grams or more, but less than 20 grams, a third-degree felony (R.C. 2925.11(C)(4)(c)). The trial court sentenced him to a mandatory maximum sentence of 11 years in prison for possession of heroin and to 12 months in prison for possession of cocaine, to be served concurrently. {¶ 2} Black appeals from his conviction, claiming (1) that his conviction for possession of heroin was based on insufficient evidence and against the manifest weight of the evidence and (2) that the trial court erred in sentencing him as a major drug offender. For the following reasons, the trial court’s judgment will be affirmed. I. Factual and Procedural History {¶ 3} The State’s evidence at trial established the following facts. {¶ 4} On October 7, 2015, United States Postal Inspector Suzanne McDonough noticed a large flat-rate box mailed from Morena Valley, California, an area that was known to her as a “drug source location.” McDonough looked at the time that the package was mailed and investigated the sender’s name and address, as identified on the package. The sender was James Collins at a specific address in Morena Valley; there was no James Collins associated with that address. McDonough also checked whether the name for the addressee was associated with the address to which the package was mailed. The recipient of the package was Brandi Anderson, but there was no such person associated with the address. McDonough did not know whether Brandi -3- Anderson or James Collins was a real person. {¶ 5} McDonough contacted the Dayton Police Department and asked to have a narcotics K-9 check the parcel. McDonough chose several similar packages, hid them in an office or hallway in the postal facility, and placed the suspect package among them. When the police K-9 passed the suspect parcel, the dog alerted on it. McDonough had the handler complete an affidavit that the K-9 had positively alerted on the parcel, and McDonough obtained a federal search warrant to open the parcel. {¶ 6} When McDonough opened the parcel, she saw a candle and potpourri; McDonough discovered approximately 8.9 ounces of heroin inside the candle. McDonough contacted Detective Anthony Hutson of the Montgomery County Sheriff’s Office R.A.N.G.E. Task Force, the regional task force for drugs and gun enforcement, to see if the task force was interested in conducting a controlled delivery of the drugs. {¶ 7} After McDonough brought the package to Hutson’s attention, R.A.N.G.E. Task Force detectives researched the address and names associated with the parcel. Detective Joshua Samples testified that he researched the delivery address using several law enforcement databases, looking at prior calls for service, people who carry that address on their driver’s license or vehicle, and the like. Samples found no connection between the address and the name “Brandi Anderson.” The task force also obtained an anticipatory search warrant for the residence. {¶ 8} On October 8, 2015, McDonough met with R.A.N.G.E. Task Force officers regarding the controlled delivery and execution of the search warrant. Numerous detectives were assigned different duties, such as entry team officers, delivery surveillance officer, and perimeter officers. Later that day, with task force officers -4- nearby, McDonough, as an undercover mail carrier, went to the address listed on the parcel to deliver the package. A man wearing black pajama bottoms (later identified as Black) answered the door, and McDonough stated that she had a parcel for Brandi Anderson. Black was on the phone, and he acknowledged her by nodding. McDonough handed Black the parcel and left the area. {¶ 9} After the package was delivered, R.A.N.G.E. Task Force officers approached the residence to execute the search warrant on the house. When Detective Samples approached the residence, two men were on the porch, one of whom was holding the parcel. Both individuals ran. One man, Perry Thompson, came off the porch but laid down on the front walkway upon seeing other officers; the other, Black, ran around the house with the parcel. {¶ 10} Detective Raymond Swallen, who was assisting with the execution of the warrant, was located at the rear of the house with Detective Jason Leslie. Swallen saw Black running from the right side of the house (from Swallen’s perspective), carrying the parcel like a football. Swallen and Leslie ran towards Black, yelling “Stop, police.” Black threw his cell phone and the parcel over the fence of an adjacent yard. The officers apprehended and handcuffed Black, patted him down for weapons, and after the house was secured, took Black around the front of the house to a police car. Swallen searched Black prior to placing him in a cruiser and located cash, a Social Security card, and what appeared to be crack cocaine in Black’s pants pocket. Hutson, Swallen, and Leslie identified Black at trial. {¶ 11} Upon executing the search warrant, Detective Hutson found paperwork, including a shipping label addressed to Black at that residence, in the living room of the -5- house. A nightstand in a basement bedroom had a shipping label with the sender listed as “Mark Black” from that address. A utility bill with Black’s information on it (but with a different address) was located in a vehicle parked in the driveway. Upon searching the house, the officers also found firearms, a digital scale, empty gel capsules (which Hutson testified was indicative of drug trafficking, mostly heroin), a blender that appeared to have been used to “cut” drugs, and a plate with a knife. {¶ 12} During cross-examination, Detective Hutson testified that Black was subject to two unrelated traffic arrest warrants on October 8, 2015. Hutson agreed that he had seen many people run from the police because of warrants. {¶ 13} The suspected heroin and crack cocaine were submitted to the Miami Valley Regional Crime Laboratory for analysis. Todd Yoak, a forensic chemist, testified that the substances were 16.02 grams, plus or minus 0.02 grams, of cocaine and 251.15 grams, plus or minus 0.02 grams, of heroin. {¶ 14} In July 2016, Black was indicted for possession of heroin (equal to or exceeding 250 grams) with a major drug offender specification and for possession of cocaine (10 grams or more, but less than 20 grams). Black subsequently moved to suppress all physical evidence obtained by law enforcement and any statements he may have made to law enforcement officers. After a hearing, the trial court denied the motion. {¶ 15} A jury trial commenced on December 12, 2017. Prior to opening statements, the State orally moved to amend the indictment to strike the major drug offender specification. The prosecutor explained, “We’ve discussed in chambers how it’s surplus language, that the statute is essentially duplicative of that. So just for the sake of not confusing the jury, we’d ask for the indictment to be amended, thus.” The -6- trial court granted the motion without objection. {¶ 16} During the trial, the State presented the testimony of Postal Inspector McDonough, of Detectives Hutson, Samples, Swallen, and Leslie, and of Yoak. The State also offered several exhibits, including photographs taken during the execution of the search warrant on October 8, 2015, the parcel intercepted by McDonough, the search warrant, gel caps, and the drugs. Black did not present any witnesses, but offered several exhibits that were used during the cross-examination of Hutson. Following deliberations, the jury found Black guilty of both drug offenses, including specific findings that Black possessed the drugs in the amounts alleged in the indictment. {¶ 17} The trial court held a sentencing hearing on January 2, 2018, following a presentence investigation. After hearing Black’s comments and responding to those comments, the trial court reviewed some of the factors set forth in R.C. 2929.12, including that “there is a major drug offender specification here.” The court told Black that “this is a mandatory sentence, given the major drug offender specification.” The court then sentenced Black to 11 years in prison for possession of heroin and to 12 months in prison for possession of cocaine, to be served concurrently. The court found Black to be indigent and waived the mandatory fine, but ordered Black to pay court costs. The trial court’s judgment entry, filed two days later, was consistent with the judge’s oral pronouncement. {¶ 18} Black appeals from his conviction, raising two assignments of error. II. Sufficiency and Manifest Weight of the Evidence {¶ 19} In his second assignment of error, Black claims that his conviction for possession of heroin was based on insufficient evidence and was against the manifest -7- weight of the evidence. Black does not challenge his conviction for possession of cocaine. {¶ 20} A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to sustain the verdict as a matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. {¶ 21} In contrast, “a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. When evaluating whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 22} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. White, 2018-Ohio-3076, __ N.E.3d __, ¶ 38 (2d Dist.), -8- citing State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at 175. {¶ 23} Black was convicted of possession of heroin and cocaine, both in violation of R.C. 2925.11(A). That statute provides: “No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.” {¶ 24} Under R.C. 2901.22(B), “[a] person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.” {¶ 25} “ ‘Possess’ or ‘possession’ means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.” R.C. 2925.01(K). Possession of a drug may be either actual physical possession or constructive possession. State v. Mabry, 2d Dist. Montgomery No. 21569, 2007-Ohio-1895, ¶ 18. “A person has constructive possession of an item when he is conscious of the presence of the object and able to exercise dominion and control over that item, even if it is not within his immediate physical possession.” (Citations omitted.) Mabry at ¶ 18. “Establishment of ownership is not required.” State v. Rastbichler, 2d Dist. Montgomery No. 25753, 2014-Ohio-628, ¶ 33. In determining whether an individual possessed an item, it is necessary to consider all of the facts and circumstances -9- surrounding the incident. Mabry at ¶ 20. {¶ 26} In his appellate brief, Black emphasizes that he was not a resident of the home where the parcel was delivered, that the parcel was not addressed to him, that there was no evidence that he signed for the parcel (thereby demonstrating his knowledge of the arrival of the package), that the parcel was unopened when the task force officers arrived, and that his flight from the officers was explained by his valid arrest warrants for traffic violations. Black thus asserts that the State failed to prove that he knowingly possessed the heroin. {¶ 27} Construing the evidence in the light most favorable to the State, we find sufficient evidence that Black knowingly possessed the heroin contained in the parcel delivered to him. A defendant may be convicted based on direct evidence, circumstantial evidence, or both. State v. Donley, 2017-Ohio-562, 85 N.E.3d 324, ¶ 178 (2d Dist.). Circumstantial evidence has the same probative value as direct evidence. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 482, citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988); State v. Bennett, 2d Dist. Montgomery No. 24576, 2012-Ohio-194, ¶ 11. In fact, in some cases, “circumstantial evidence may be more certain, satisfying, and persuasive than direct evidence.” State v. Jackson, 57 Ohio St.3d 29, 38, 565 N.E.2d 549 (1991). {¶ 28} The State presented evidence that Black took possession of a parcel containing heroin from Postal Inspector McDonough. Prior to taking the parcel, Black had been informed by the postal inspector that the parcel was for Brandi Anderson, a name not associated with the residence. Law enforcement officers further testified that, soon thereafter, Black carried the parcel as he ran from the police and that he threw the -10- parcel and his cell phone over a fence and into a neighbor’s yard prior to his apprehension by law enforcement. Viewing this evidence in the light most favorable to the State, there was sufficient evidence for the jury to conclude that Black actually possessed the parcel of heroin and that his actions in accepting the parcel, fleeing with the parcel, and then discarding it prior to apprehension were circumstantial evidence that he knew the parcel contained heroin. {¶ 29} In support of his argument, Black relies on State v. Blackshear, 8th Dist. Cuyahoga No. 95424, 2011-Ohio-1806. In Blackshear, police officers who were inspecting packages at a Federal Express facility located a package with indicators of its being a drug shipment: the package was heavily taped, shipped priority overnight, was from a known narcotics source city, was paid for in cash, had a handwritten label, listed phone numbers that were disconnected, and had a recipient’s name that did not match the delivery address. A K-9 unit alerted on the package, and upon obtaining a search warrant, the police discovered approximately 3,370 grams of marijuana inside. The police conducted a controlled delivery of the package. Blackshear, who lived at the residence with his father, answered the door, indicated that he was waiting for a package, and signed a log sheet. According to Blackshear, he put the package on the table where mail was usually placed, believing that the package was for his father, and he went back to playing video games with a friend. Two hours later, the police executed the search warrant; they found the package unopened and Blackshear nearby playing video games. Blackshear and his father, who was asleep upstairs when the package was delivered, testified on Blackshear’s behalf and denied knowledge of the parcel’s contents. {¶ 30} On review, the Eighth District found that Blackshear’s conviction was based -11- on insufficient evidence. The court reasoned: The facts in the instant case do not suggest that defendant’s suspicions were aroused or that he deliberately avoided knowledge of the package’s contents. Evidence that defendant signed for the package does not prove that he knowingly committed drug possession or drug trafficking under the circumstances of this case. Indeed, without additional evidence implicating defendant, it is just as likely that defendant’s father “knowingly possessed” the package containing drugs. Defendant was accustomed to signing for packages for his father, who often received boxes in the mail. On the day in question, defendant signed for a package without looking at the shipping label. Defendant did not open the package, because he thought it was for his father. Instead, he placed the box where he usually places his father’s mail, and returned to playing a video game for the next two hours, until the police arrived to search his house. The state failed to establish that defendant knew, or willfully avoided knowing, that the package was addressed to someone named “Jarrett Smith” or that there was anything else suspicious about this package. Det. Bovenzi did not testify that he said anything to defendant that would or should have aroused defendant’s suspicions. Accordingly, there is insufficient evidence in the record that defendant had actual knowledge of the drugs or closed his eyes to criminal activity. We reverse his convictions for drug possession and drug -12- trafficking and vacate the associated two-year prison sentence. Blackshear at ¶ 40-43. {¶ 31} We find Blackshear to be factually distinguishable. Blackshear’s behavior upon receiving the package did not support an inference that he was aware that the package contained marijuana. He had been accustomed to receiving packages for his father, he placed the package on the table where his father’s mail was typically placed, and he returned to playing video games. Two hours later, when the police entered, the package remained on the table and the defendant was still playing video games. {¶ 32} In contrast, Black accepted a package that was identified as being addressed to Brandi Anderson, a person not associated with the address. When the police approached the residence shortly after the delivery of the parcel, Black remained in possession of the parcel and he fled with it, tucking it under his arm like a football. Prior to apprehension by the police, Black threw the package and his cell phone away from himself and over the fence into an adjacent yard. Thus, unlike the defendant in Blackshear, Black’s behavior upon receipt of the parcel and shortly thereafter could reasonably be interpreted as reflecting his knowledge of the contents of the parcel. {¶ 33} Finally, we cannot conclude that Black’s conviction for possession of heroin was against the manifest weight of the evidence. In reaching its verdict, the jury was free to believe all, part, or none of the testimony of each witness and to draw reasonable inferences from the evidence presented. State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. Black’s counsel elicited testimony that Black was subject to unrelated arrest warrants when the police arrived, and counsel argued that Black fled due to the warrants, not the contents of the parcel. However, it was the province of the -13- factfinder to weigh the evidence and determine whether the State had proven, beyond a reasonable doubt, that Black knowingly possessed the heroin. Upon review of the record, we cannot conclude that the jury “lost its way” in crediting the version of events presented by the State and in finding Black guilty of the offense. {¶ 34} Black’s second assignment of error is overruled. III. Sentencing/ Major Drug Offender {¶ 35} In his first assignment of error, Black claims that the trial court erred in sentencing him as a major drug offender when that specification had been removed from the indictment, at the State’s request, at trial. {¶ 36} R.C. 2941.1410, the major drug offender specification statute, was enacted in 1996. See S.B. 269, 1996 Ohio Laws File 185. As originally enacted, R.C. 2941.1410(A) precluded a determination by a court that an offender was a major drug offender unless the charging document included a major drug offender specification. That provision was modified, effective March 23, 2000, to state that, “[e]xcept as provided in sections 2925.03 [trafficking in drugs] and 2925.11 [possession of drugs] of the Revised Code,” the major drug offender determination was precluded absent a major drug offender specification.1 See S.B. 107, 1999 Ohio Laws File 120. {¶ 37} R.C. 2925.11(C)(6) sets forth the penalties for possession of heroin. At the time that R.C. 2941.1410 was enacted, R.C. 2925.11(C)(6)(f) provided: “If the amount of the drug involved exceeds two hundred fifty grams, possession of heroin is a felony of the 1 Effective October 31, 2018, R.C. 2941.1410(A) now states: “Except as provided in sections 2925.03 and 2925.11 and division (E)(1) of section 2925.05 [funding of drug or marijuana trafficking] of the Revised Code * * *.” (Emphasis added.) See Am.Sub.S.B. 1, 2018 Ohio Laws File 95. -14- first degree, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree and may impose an additional mandatory prison term prescribed for a major drug offender under division (D)(3)(b) of section 2929.14 of the Revised Code.” (Emphasis added.) See S.B. 269, 1996 Ohio Laws File 185. The ability to impose an additional mandatory prison term for a major drug offender under R.C. 2925.11(C)(6)(f) was removed in 2011.2 See Am.Sub. H.B. 86, 2011 Ohio Laws File 29. {¶ 38} At the time of Black’s offense in October 2015, R.C. 2925.11(C)(6)(f) read: “If the amount of the drug involved equals or exceeds two thousand five hundred unit doses or equals or exceeds two hundred fifty grams, possession of heroin is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.” (Emphasis added.) R.C. 2925.11(C)(6)(f).3 {¶ 39} Black was charged with and found guilty of violating R.C. 2925.11 in an amount greater than 250 grams. Based on the language of R.C. 2925.11(C)(6)(f), Black was a major drug offender, and the court was required to impose a mandatory 11-year prison term, i.e., a mandatory sentence of the maximum prison term allowed for a first- 2 Effective October 31, 2018, R.C. 2941.1410(B) allows the imposition of an additional 3, 4, 5, 6, 7, or 8-year mandatory prison term under R.C. 2929.14(B) when there is a specification that the offender is a major drug offender and the drug involved is a fentanyl- related compound. See Am.Sub.S.B. 1, 2018 Ohio Laws File 95. 3 As of 2016, R.C. 2925.11(C)(6)(f) now reads: “If the amount of the drug involved equals or exceeds one thousand unit doses or equals or exceeds one hundred grams, possession of heroin is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.” (Emphasis added.) See H.B. 171, 2016 Ohio Laws File 97. -15- degree felony. Under R.C. 2941.1410(A), Black’s indictment was not required to include a major drug offender specification for the court to impose that penalty on Black. {¶ 40} Black’s first assignment of error is overruled. IV. Conclusion {¶ 41} The trial court’s judgment will be affirmed. ............. DONOVAN, J. and TUCKER, J., concur. Copies sent to: Mathias H. Heck Michael P. Allen Jay A. Adams Hon. Timothy N. O’Connell	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MAURICE CALDWELL, No. 16-15473 Plaintiff-Appellant, DC No. v. 3:12-CV-01892- EDL CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO POLICE DEPARTMENT; KITT CRENSHAW; OPINION ARTHUR GERRANS; JAMES CROWLEY, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Elizabeth D. Laporte, Magistrate Judge, Presiding Argued and Submitted October 13, 2017 San Francisco, California Filed May 11, 2018 Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Matthew Frederick Leitman,* District Judge. Opinion by Judge Tashima * The Honorable Matthew Frederick Leitman, United States District Judge for the Eastern District of Michigan, sitting by designation. 2 CALDWELL V. CITY & CTY. OF SAN FRANCISCO SUMMARY Civil Rights The panel affirmed in part and reversed in part the district court’s summary judgment and remanded in an action brought pursuant to 42 U.S.C. § 1983 alleging that San Francisco Police Department officials fabricated evidence against plaintiff during his investigation for murder. Plaintiff spent nearly twenty years in prison as a result of his murder conviction. He brought a § 1983 action after a state court granted his petition for writ of habeas corpus and ordered his release. Plaintiff alleged that a police sergeant deliberately manufactured a “show-up” by exposing him to a witness with the purpose of manipulating that witness into misidentifying plaintiff as the murder suspect. He further alleged that the sergeant deliberately fabricated a statement by plaintiff that placed plaintiff at the site of the shooting. Finally, plaintiff alleged that his interaction with police inspectors during a photo lineup were so coercive that they rose to the level of deliberate fabrication of evidence. In reversing the district court’s grant of summary judgment in favor of the police sergeant, the panel held that drawing all reasonable inferences in favor of plaintiff, he established that the sergeant had a motive to retaliate against him. He further raised a genuine issue as to whether the sergeant arranged the show up, deliberately fabricated the statement and memorialized it in falsified notes. The panel This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CALDWELL V. CITY & CTY. OF SAN FRANCISCO 3 held that plaintiff rebutted any presumption of prosecutorial independence and established a triable issue as to whether the allegedly fabricated identification and falsified statements caused him harm. In affirming the district court’s summary judgment as to the police inspectors, the panel held that their conduct during a photo line-up was not so coercive that it rose to the level of fabricated evidence. COUNSEL Terry Gross (argued), Adam C. Belsky, and Monique Alonso, Gross Belsky Alonso LLP, San Francisco, California, for Plaintiff-Appellant. Sean F. Connolly (argued) and Bradley A. Russi, Deputy City Attorneys; Cheryl Adams, Chief Trial Attorney; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendants-Appellees. 4 CALDWELL V. CITY & CTY. OF SAN FRANCISCO OPINION TASHIMA, Circuit Judge: INTRODUCTION Plaintiff-Appellant Maurice Caldwell spent nearly twenty years in prison for the 1990 murder of Judy Acosta. Upon release,1 Caldwell sued San Francisco Police Department (“SFPD”) officials Kitt Crenshaw, Arthur Gerrans, and James Crowley, under 42 U.S.C. § 1983, for allegedly fabricating evidence against him during the murder investigation. As to Sergeant Crenshaw, Caldwell alleges that the officer deliberately manufactured a “show-up” with Caldwell at a witness’ door. Specifically, Caldwell asserts that Crenshaw deliberately exposed Caldwell to a witness with the purpose of manipulating that witness into misidentifying Caldwell as the murder suspect. The alleged show-up, if it occurred, may have worked. Mary Cobbs, the witness in question, later picked Caldwell out of a photo lineup despite her initial description of the suspect being, in some regards, inconsistent with Caldwell’s physical traits. 1 On December 15, 2010 the Superior Court of California, County of San Francisco, granted Caldwell’s petition for a writ of habeas corpus and ordered his release. Caldwell argued that he was entitled to the writ on the grounds of, among other things, ineffective assistance of counsel, actual innocence and that newly discovered evidence undermined the prosecution’s case. The court held that Caldwell’s trial attorney was ineffective on account of failing to investigate potential alibi and other eyewitnesses that supported Caldwell’s arguments that he was not present and was not the shooter. The court did not rule on Caldwell’s other grounds in support of his petition. CALDWELL V. CITY & CTY. OF SAN FRANCISCO 5 Regarding Inspectors Gerrans and Crowley, Caldwell alleges that their investigative techniques – mostly their interactions with Cobbs during the photo lineup – were so coercive that they rose to the level of deliberate fabrication of evidence. The district court granted all of Defendants’ motions for summary judgment, but for different reasons. As to Crenshaw, the district court held that Caldwell had raised a triable issue as to whether the Sergeant fabricated evidence. The district court concluded, however, that the Sergeant was shielded from liability because the prosecutor’s decision to charge Caldwell was subject to a presumption of independence and, therefore, broke the chain of causation between the alleged wrongdoing and Caldwell’s harm. As to Gerrans and Crowley, the district court held that Caldwell had not raised a triable issue as to whether either or both of them had deliberately fabricated evidence. We hold that because Caldwell rebutted any presumption of prosecutorial independence, he established a triable issue as to whether Crenshaw fabricated evidence against him. Therefore, we reverse and remand as to Crenshaw.2 As to Gerrans and Crowley, we hold that their investigation techniques were not so coercive that they rose to the level of fabricated evidence. Thus, we affirm as to Gerrans and Crowley. 2 Caldwell also brought claims against the SFPD, and the City and County of San Francisco, under Monell v. Department of Social Services, 436 U.S. 658 (1978), but the district court did not reach the issue. The district court should address these claims on remand. 6 CALDWELL V. CITY & CTY. OF SAN FRANCISCO I. FACTUAL AND PROCEDURAL BACKGROUND A. The Acosta Murder and Caldwell’s Conviction On June 30, 1990, a group of four persons, including Judy Acosta and Domingo Bobila, went to a San Francisco housing project to buy drugs. There, a group approached Acosta and Bobila, offering to sell crack. The sale went wrong and one of the dealers pulled out a handgun and shot Acosta in the chest. Bobila tried to flee in his car and a second man began firing a shotgun. Bobila and Acosta were hit by shotgun fire and Acosta died in the car. Caldwell claims that he was not present at the shooting; Defendants claimed that Caldwell was the shotgun shooter. In March 1991, a jury convicted Caldwell of second- degree murder for shooting Acosta with the shotgun. Mary Cobbs testified at trial and identified Caldwell as the shotgun shooter.3 A few months afterwards Cobbs and her children received roundtrip tickets to Disneyland from the San Francisco Secret Witness Program. B. The July 13, 1990 Canvass On July 13, 1990, Inspector Gerrans, Sergeant Crenshaw, and Officer Robert Doss of the SFPD canvassed the housing project where the Acosta murder occurred. The general purpose of the canvass was to, among other things, find witnesses to the murder. The day before, the police had received an anonymous tip that the police should “check out” Caldwell, “who had been shooting off guns in the projects . . . 3 Cobbs passed away in 1998. CALDWELL V. CITY & CTY. OF SAN FRANCISCO 7 for years.” During the canvass, Gerrans mentioned the name Caldwell to Crenshaw and Crenshaw said he knew him. Caldwell and Crenshaw had history. Caldwell had interacted with Crenshaw between six and nine times prior to the 1990 murder investigation. During these stops Caldwell said that Crenshaw would tell him things such as,“[h]e [sic] going to catch me, and when he do catch me, he going to end up killing me or he going to have me in jail for the rest of my life, you know.” Five months before the murder, Caldwell filed a complaint with the Office of Citizen Complaints (“OCC”)4 against Crenshaw. During the OCC’s investigation, Crenshaw admitted telling Caldwell: One day I’m going to be sitting up there and you’re going to be blown away. Something’s going to happen to you because sooner or later I’m going to catch you with a gun and you and I are going to have it out. I’m going to kill you. Next time we’re going to get the drop on you. Gerrans later testified that had he known about Crenshaw and Caldwell’s history, he may have had second thoughts about Crenshaw being involved in the investigation. 4 According to the City and County of San Francisco’s government website, “[t]he OCC was the civilian oversight department for the San Francisco Police Department . . . . The OCC investigated complaints of misconduct and neglect of duty by police officers, could file disciplinary charges against officers, and make policy recommendations.” See DEP’T OF POLICE ACCOUNTABILITY, New! The OCC is now the Department of Police Accountability, SFGOV (Feb. 7, 2017), http://sfgov.org/dpa/news- release/new-occ-now-department-police-accountability. 8 CALDWELL V. CITY & CTY. OF SAN FRANCISCO Gerrans met Cobbs during the course of the canvass. Cobbs had witnessed the shooting and agreed to an interview with Gerrans. During the interview, Cobbs stated that the shooters did not live around her, but that she recognized them from seeing them in the area a few times. Cobbs said she did not know the shooters’ names or nicknames. Cobbs gave a description of the shotgun shooter as a 5'4", 150-pound, African-American man that wore his hair in a jheri curl. Caldwell had an apartment next door to Cobbs’ and may have lived there. 1. The Alleged Show-up at Cobbs’ Door During the July 13, 1990, canvass, Crenshaw saw Caldwell on the street and approached him. In Caldwell’s retelling, Crenshaw knew that Gerrans was interviewing a potential witness and marched Caldwell to Cobbs’ door. At the door Crenshaw knocked, Cobbs answered, and Crenshaw asked if the homicide inspector was there. Caldwell and Cobbs made eye contact. According to Caldwell, once Gerrans came to the door, Crenshaw stated “this is Maurice Caldwell, or Twone, right here. And can I have your keys?” Crenshaw asked for Gerrans’ keys despite having his own car nearby. Andrena Gray, Caldwell’s girlfriend at the time, corroborated Caldwell’s story in a later-filed declaration, stating Crenshaw “forcibly walked [Caldwell] down the street, and stopped in front of the door of an apartment, which I later learned was the apartment of Mary Cobbs.” Caldwell alleges that Crenshaw manufactured this show- up to manipulate Cobbs into falsely identifying Caldwell as the shooter. Defendants do not dispute that Crenshaw knocked on Cobbs’ door while Gerrans was interviewing the CALDWELL V. CITY & CTY. OF SAN FRANCISCO 9 witness, but they all contend that Caldwell was not with Crenshaw at the door. 2. The Conversations between Caldwell and Crenshaw Caldwell and Crenshaw spoke to one another two different times during the canvass. The men tell different stories. First, Crenshaw confronted Caldwell in the street. It was during this encounter on the street that, according to Crenshaw, Caldwell made a “spontaneous statement” about being present at the shooting and dealing drugs. The second encounter between Crenshaw and Caldwell took place in Gerrans’ car and Crenshaw told Caldwell that homicide wanted to talk to him. According to Caldwell, on the street, he asked Crenshaw, “why do you harass me?”5 In the car, Crenshaw asked “what do you know about a murder?” and Caldwell responded, “I don’t know nothing about nothing.” Crenshaw then allegedly asked Caldwell where he was the night of the murder and Caldwell replied that he was at his uncle’s house. From these encounters, Crenshaw later wrote the following notes: Maurice Caldwell stated that he was present at the shooting, but he was down the street. Prior to the shooting. Caldwell was with the suspects dealing drugs. After the shooting Caldwell returned and started yelling at the shooters, he did this because he felt he was going to be blamed. He further stated he knew 5 Gray also filed a declaration that she witnessed the first interaction on the street and corroborates Caldwell’s version. 10 CALDWELL V. CITY & CTY. OF SAN FRANCISCO why I stopped him, because ‘anytime somebody does any shooting it’s usually me.’ ‘But that was before, I don’t do that any more [sic].’ Caldwell denies having said any of this and alleges that Crenshaw fabricated the statement and falsified the notes. C. The July 26, 1990 Photo Lineup On July 25, 1990, Cobbs tried to cancel a scheduled photo lineup, stating that she had been threatened for cooperating with the police. Gerrans convinced Cobbs to come in regardless. On July 26, 1990, Cobbs met with Gerrans and Crowley. Gerrans and Crowley then performed a non-videotaped photo lineup. Recording a photo lineup would have been the department’s “number one choice” in 1990, but there is no evidence that it was required by policy. After Cobbs apparently picked Caldwell out of the photo lineup as the shotgun shooter, the officers turned on a camera and conducted the photo lineup again. Once the camera was rolling, Cobbs picked Caldwell again and said that she had heard that people call him, “Twan.” After the photo lineup, the officers asked Cobbs to recount what she saw the night of the shooting. During Cobbs’ retelling, the officers interjected with statements, such as “this is the man you saw out front of your house the night of the shooting and he had a shotgun. Is that correct?” Later, the officers asked, “[t]he man that you saw, you picked out in this picture here, the man with the shotgun, he was still shooting the shotgun as the car was leaving?” Finally, the CALDWELL V. CITY & CTY. OF SAN FRANCISCO 11 officers referenced Caldwell by name: “When you went to the window, you recognized this man and I’m turning over the picture of Maurice Caldwell SF No. 445392. That’s the man that you recognized. ‘Cuz you saw him in the area before, right?” The officers also discussed that people had threatened Cobbs for cooperating with the police. During Gerrans’ deposition, Caldwell’s attorney asked, “Did you say to [Cobbs] . . . [that] the police department would take efforts to protect her [from threats] if she was able to help you in ID’ing this person as a suspect?” To which Gerrans replied, “I believe that was said.” Gerrans continued “we didn’t go into witness . . . relocation or anything like that. We didn’t promise her anything at that time. We promised we would take care of her to protect her.” D. The Prosecutor’s Actions Assistant District Attorney, Alfred Giannini, prosecuted Caldwell. In support of Defendants’ motion for summary judgment, Giannini filed a declaration describing his investigation in the case. Giannini declared that he authorized charges against Caldwell on September 20, 1990, after reviewing all the evidence available to him. Before the preliminary hearing on December 3, 1990, Giannini interviewed a number of witnesses and did not believe they had been coached. At the preliminary hearing, in response to Caldwell’s attorney’s questioning of Cobbs, Giannini considered, for the first time, whether Cobbs had seen Caldwell during the alleged show-up, but “determined that Ms. Cobbs had not seen Mr. Caldwell, and . . . decided that even if she had, it hadn’t undermined the reliability or veracity of her testimony.” Giannini further stated, that 12 CALDWELL V. CITY & CTY. OF SAN FRANCISCO although he did not elicit any evidence about Caldwell’s July 13, 1990, statement at trial, he initially considered the “inconsistency” between that statement and Caldwell’s September 21, 1990, statement, but “decided it was a minor factor when reviewing the totality of the evidence.” E. The District Court’s Opinion As to Gerrans and Crowley, the district court held that Caldwell had not raised a triable issue on whether either or both of them had deliberately fabricated evidence against Caldwell. As to Crenshaw, the court held that Caldwell had raised a triable issue whether Crenshaw had (1) manufactured the alleged show-up to manipulate Cobbs into identifying Caldwell, and (2) deliberately fabricated a statement by Caldwell, which placed Caldwell at the site of the shooting. The court stated: [Caldwell] has come forth with evidence that Crenshaw was hostile to [Caldwell] and threatened to catch him, get “the drop” on him and kill him. Additionally, Crenshaw knew that Caldwell was a suspect, knew that Gerrans was inside a home talking to someone who might possibly be a witness, and allegedly brought [Caldwell] to that person’s door. It is undisputed that Mary Cobb’s identification of [Caldwell] was a critical component in the state’s case against [Caldwell]. Moreover, although Crenshaw’s notes were not introduced at trial, Plaintiff plausibly argues that the investigation continued to focus on him, at least in part, as a result of Crenshaw’s false report. CALDWELL V. CITY & CTY. OF SAN FRANCISCO 13 Nonetheless, the district court still granted summary judgment to Crenshaw on the basis that Giannini’s presumptively independent decision to charge and prosecute Caldwell broke the chain of causation between the fabricated evidence and Caldwell’s injury. II. STANDARD OF REVIEW This court reviews a grant of summary judgment de novo. See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc). “Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. (citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc)). III. ANALYSIS “[T]here is a clearly established constitutional due process right not to be subject to criminal charges on the basis of false evidence that was deliberately fabricated by the government.” Id. at 1074–75. A plaintiff can prove deliberate fabrication in several ways. Most basically, a plaintiff can produce direct evidence of deliberate fabrication. See Spencer v. Peters, 857 F.3d 789, 793 (9th Cir. 2017) (citing Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010)). Alternatively, a plaintiff can produce circumstantial evidence related to a defendant’s motive. Devereaux, 263 F.3d at 1076. Devereaux noted that to prove a fabrication claim using circumstantial evidence, a plaintiff must: 14 CALDWELL V. CITY & CTY. OF SAN FRANCISCO support[] at least one of the following two propositions: (1) [d]efendants continued their investigation . . . despite the fact that they knew or should have known that [the plaintiff] was innocent; or (2) [d]efendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information. Id. A. Sergeant Crenshaw As an initial matter, Caldwell is supporting his claims against Crenshaw with direct evidence of fabrication. 1. Fabrication Caldwell contends that Crenshaw fabricated evidence against him by (1) manufacturing a show-up with Caldwell at Cobbs’ door to manipulate her into identifying Caldwell as the shooter, and (2) fabricating a statement from Caldwell by falsifying notes of a conversation between the officer and the suspect. Caldwell suggests that Crenshaw fabricated this evidence because he was out to get Caldwell after Caldwell reported the officer to the OCC for alleged abuses. In the light most favorable to the non-moving party, Caldwell has raised a triable issue as to whether Crenshaw deliberately fabricated this evidence. First, Caldwell presents evidence suggesting that Crenshaw had a motive to target him during the 1990 investigation. Crenshaw had stopped Caldwell between six CALDWELL V. CITY & CTY. OF SAN FRANCISCO 15 and nine times prior to the 1990 murder investigation. During these stops Caldwell said that Crenshaw would threaten to kill him or throw him in jail for life. Additionally, five months before the murder, Caldwell filed a complaint with the OCC against Crenshaw as to which Crenshaw admitted that he had threatened Caldwell. While Defendants are correct that retaliatory motive is not an element of a fabrication of evidence claim, these facts, taken in the light most favorable to Caldwell, support the inference that Crenshaw fabricated evidence. a. The Alleged Show-up The district court correctly held that Caldwell raised a triable issue as to whether Crenshaw fabricated evidence by showing-up at Cobbs’ door with Caldwell. To put it simply, there is clearly a dispute of fact about whether this show-up occurred. For one, Defendants concede that there are at least four “versions” of the alleged show-up at Cobbs’ door. In Caldwell’s version, Crenshaw detained Caldwell during the July 13, 1990 canvass and marched him to Cobbs’ apartment, where Caldwell made eye contact with the witness.6 According to Caldwell, once Gerrans came to the door Crenshaw stated “this is Maurice Caldwell, or Twone, right here. And can I have your keys?” Crenshaw asked for Gerrans’ keys despite having his own car in the neighborhood. Defendants dispute that Caldwell was with Crenshaw at Cobbs’ door. Nevertheless, there is support for Caldwell’s version of events. Cobbs’ initial description of the shooter is 6 Gray corroborates Caldwell’s version of the events, thus strengthening our conclusion that there is a triable issue for the jury. 16 CALDWELL V. CITY & CTY. OF SAN FRANCISCO inconsistent with her later selection of Caldwell in the photo lineup. First, Cobbs’ description of the shooter as a 5'4", 150- pound, African-American man with a jheri curl hairstyle is a fairly accurate description of Caldwell, but not exact. Crenshaw described Caldwell as 5'5" and 125-pounds. More importantly, Cobbs first stated that the shooters did not live in the neighborhood and that she did not know their names or nicknames. However, there is evidence in the record that Caldwell was Cobbs’ neighbor and Cobbs later stated she had heard that people called Caldwell “Twan.” Taking these facts in the light most favorable to Caldwell, the inference is that Cobbs would have initially told Gerrans that she recognized the shooter as her neighbor if she thought that Caldwell was the shooter. The fact that Cobbs only later identified Caldwell and his nickname supports the inference that the show-up occurred and influenced her initial recollection of the shooting. There is also a triable issue as to whether Crenshaw brought Caldwell to Cobbs’ front door for the purpose of fabricating evidence against Caldwell. Citing, Perry v. New Hampshire, 565 U.S. 228 (2012), Defendants argue that the show-up did not implicate Caldwell’s due process rights because the facts do not support the notion that it was a police-arranged. Specifically, Defendants contend that Crenshaw could not have arranged the show-up because he did not know that Cobbs was a witness. Defendants’ argument is not convincing. First, Perry is distinguishable in that the defendant conceded that “law enforcement officials did not arrange the suggestive circumstances surrounding [the witness’] identification.” Id. at 240. Second, in contrast to Perry, here there is evidence that Crenshaw purposely put Caldwell in CALDWELL V. CITY & CTY. OF SAN FRANCISCO 17 front of Cobbs to infect her recollection and suggest Caldwell as the shooter. Drawing all reasonable inferences in favor of Caldwell, he established first, that Crenshaw had a motive to retaliate against him for reporting the officer to the OCC. Further, Crenshaw generally understood the purpose of the canvass to be looking for witnesses and evidence, and it is reasonable to infer that Crenshaw knew Gerrans was interviewing Cobbs as a witness. Finally, Caldwell presented evidence that Crenshaw asked for Gerrans’ car keys as a pretext for the show-up even though Crenshaw had his own car in the neighborhood. Taken together, Caldwell establishes a genuine issue as to whether Crenshaw arranged the show-up. b. The Allegedly Fabricated Statement There is also a triable issue as to whether Crenshaw deliberately fabricated a statement from Caldwell and memorialized it in falsified notes. According to Caldwell, Crenshaw first confronted Caldwell in the street and, as witnessed by Gray, all Caldwell said was something to the effect of “why are you harassing me?” After the show-up, Crenshaw brought Caldwell to Gerrans’ car. In the car, Crenshaw asked “what do you know about a murder?” and Caldwell responded, “I don’t know nothing about nothing.” Crenshaw allegedly asked Caldwell where he was the night of the murder and Caldwell replied that he was at his uncle’s house. Crenshaw had a different view of the conversations. Crenshaw later memorialized his version of the interactions in a report. According to Crenshaw, Caldwell made a “spontaneous statement” on the street about being present at the shooting and dealing drugs. The report also claimed that 18 CALDWELL V. CITY & CTY. OF SAN FRANCISCO Caldwell stated he returned to the scene after the shooting to yell at the shooters. Clearly there is a triable dispute about whether Caldwell actually made the statements attributed to him by Crenshaw. Further, the discrepancy between Caldwell and Crenshaw’s accounts of their conversations is the type of direct evidence of fabrication that was at issue in Costanich. In Costanich, the court found evidence of intentional fabrication sufficient to survive summary judgment where “witnesses pointed out that the [investigation] report contained evidence or statements they never made.” Costanich, 627 F.3d at 1112. Here, Caldwell stated in his deposition that “[t]he only thing correct in [the disputed statement] is my name.” Defendants counter that the discrepancies between the accounts do not rise to the level of fabrication and are “[a]t the very worst . . . careless or inaccurate.” As support, Defendants cite Gausvik v. Perez, which held that an affidavit for probable cause that contained errors was not sufficient to establish deliberate fabrication of evidence. 345 F.3d 813, 817 (9th Cir. 2003). The affidavit in Gausvik stated that three children had tested “positive” for sexual abuse when really the tests were only “suggestive” or “consistent” with abuse. Id. Further, the affidavit stated that eight children had accused the suspect, when only two had, but one of them told the officer that the suspect had abused at least eight other children. Id. The court chalked these errors up the officer being careless with the facts, but that the errors did not rise to the level of deliberate fabrication. Id.; Costanich, 627 F.3d at 1112 (not every “recording error[] and misstatement[]” in an investigative record rises to the level of constitutional violation). CALDWELL V. CITY & CTY. OF SAN FRANCISCO 19 Defendants cherry pick facts from Caldwell’s statements to attempt to portray the discrepancies in Crenshaw’s notes as careless errors like those in Gausvik. For example, Caldwell said that he told Crenshaw that he was at his uncle’s house, which is “down the street” from the shooting. Defendants also contend that, because Caldwell later testified that he went to the scene after the shooting, there is no inconsistency with Crenshaw’s note. These arguments are unsupported by the record. What Defendants fail to mention is that Caldwell never admitted that he was with the drug dealers, dealing drugs, or that “anytime somebody does any shooting it’s usually me.” There is a wide gulf between telling someone you were at your uncle’s house nearby when a shooting occurred and telling someone you were “present” for a shooting and were “with the suspects dealing drugs.” We conclude that the potential “errors” are not obviously the product of carelessness and that there is a triable issue as to whether Crenshaw intentionally fabricated his notes. 2. Causation Our inquiry, however, does not end with the conclusion that Caldwell has raised triable issues on whether Crenshaw deliberately fabricated evidence. Caldwell must still come forward with a showing that the fabrication caused him some harm. “To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.” Spencer, 857 F.3d at 798 (citing Costanich, 627 F.3d at 20 CALDWELL V. CITY & CTY. OF SAN FRANCISCO 1111). To establish causation, Caldwell must raise a triable issue that the fabricated evidence was the cause in fact and proximate cause of his injury. See id. Like in any proximate cause analysis, an intervening event may break the chain of causation between the allegedly wrongful act and the plaintiff’s injury. See Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008) (citing RESTATEMENT (SECOND) OF TORTS §§ 440 et seq.). As to what constitutes an injury, a § 1983 plaintiff need not be convicted on the basis of the fabricated evidence to have suffered a deprivation of liberty – being criminally charged is enough. See Devereaux, 263 F.3d at 1074–75 (“[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.” (emphasis added)); cf. NINTH CIR. JURY INSTR. COMM., MANUAL OF MODEL CIVIL JURY INSTRUCTIONS, § 9.33 (2017) (“The defendant [name] deliberately fabricated evidence that was used to [[criminally charge] [prosecute] [convict]] the plaintiff.” (brackets in original)). a. Rebuttable Presumption of Prosecutorial Independent Judgment Typically, in constitutional tort cases the “[f]iling of a criminal complaint immunizes investigating officers . . . because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused’s arrest exists at that time.” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981) (“Smiddy I”), overruled on other grounds by Beck, 527 F.3d at 865. The district court held, and Defendants argue here, that the Smiddy presumption breaks the chain of causation between CALDWELL V. CITY & CTY. OF SAN FRANCISCO 21 Crenshaw’s alleged fabrication of evidence and the harm that Caldwell suffered in being criminally charged. Thus, Defendants contend, Crenshaw is immunized from § 1983 liability. Conversely, Caldwell contends that prosecutorial independence only severs the causal chain where the underlying civil rights violation is based on a lack of probable cause. And that because deliberate fabrication of evidence cases are not dependent on finding a lack of probable cause, no presumption should be at play. See Spencer, 857 F.3d at 801 (rejecting the contention that a plaintiff must “prove that, setting aside the fabricated evidence, probable cause was lacking”); see also Halsey v. Pfeiffer, 750 F.3d 273, 292–93 (3d Cir. 2014) (even where probable cause exists, “we believe that no sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence”). To support his argument that the presumption does not extend to deliberate fabrication cases, Caldwell highlights that the underlying violation in Smiddy I was false arrest and that the Court emphasized that the prosecutor made its “independent judgment decision in determining that probable cause . . . exist[ed] . . . .” Smiddy I, 665 F.2d at 266 (emphasis added).7 7 Caldwell also argues that this Court has never applied the presumption in a fabrication of evidence case and cites a string of cases where this Court applied the Smiddy presumption in false arrest or malicious prosecution cases – claims that require a lack of probable cause. See, e.g., Harper v. City of L.A., 533 F.3d 1010, 1027 (9th Cir. 2008); Newman v. Cty. of Orange, 457 F.3d 991, 993 (9th Cir. 2006)). Defendants respond that this Court did just that in McSherry v. City of Long Beach, 584 F.3d 1129 (9th Cir. 2009). But McSherry is unclear on this point. It is true that McSherry involved a deliberate fabrication of evidence claim and that this Court held that the allegedly fabricated evidence did not influence the prosecutor’s independent decision. Id. at 22 CALDWELL V. CITY & CTY. OF SAN FRANCISCO Alternatively, Caldwell argues that even if the presumption applies, he sufficiently rebutted it. While we recognize that both sides make reasonable arguments as to the applicability of the causation-breaking presumption in fabrication of evidence cases, we need not resolve the parties’ debate. Assuming without deciding that the presumption applies to such claims, we hold that Caldwell sufficiently rebutted any presumption and has established a triable issue as to causation. b. Presumption Rebutted Deliberately fabricated evidence in a prosecutor’s file can rebut any presumption of prosecutorial independence. In Smiddy I, this Court gave a few non-exclusive examples of how a plaintiff might overcome the presumption, including by showing that the officers presented the district attorney with “information known by them to be false.” 665 F.2d at 266–67. A plaintiff can also rebut the presumption by presenting evidence “that the officers knowingly withheld relevant information” from the prosecutor. See Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986) (“Smiddy II”). In sum, if a plaintiff establishes that officers either presented 1137. However, there is no discussion of a presumption of independence that automatically precludes a finding of causation. Instead, the Court held that McSherry had not presented sufficient evidence of causation. See id. at 1142 (“[E]ven examining the evidence in the light most favorable to McSherry, the evidence presented before the district court was simply insufficient to sustain a finding that [the prosecutor’s] investigation and decision making was not independent and was tainted by the alleged fabrication of evidence.”) Thus, the McSherry court engaged in a normal causation analysis at the summary judgment stage, without reference to any presumption. CALDWELL V. CITY & CTY. OF SAN FRANCISCO 23 false evidence to or withheld crucial information from the prosecutor, the plaintiff overcomes the presumption of prosecutorial independence and the analysis reverts back to a normal causation question. As stated above, we hold that Caldwell presents “more than conclusory allegations of the falsehood” of (1) Cobbs’ identification of him, and (2) Crenshaw’s notes. See Blankenhorn v. City of Orange, 485 F.3d 463, 483 (9th Cir. 2007). Further, Caldwell raises a triable issue as to whether Giannini relied on these alleged falsehoods in his decision to charge Caldwell. See id. Thus, Caldwell has rebutted any presumption of prosecutorial independent judgment and has established a triable issue as to causation. First, the allegedly fabricated identification was part of the evidentiary record that Giannini reviewed prior to authorizing charges against Caldwell. And there is no dispute that Cobbs’ identification was a crucial piece of evidence against Caldwell. Further, Giannini himself admitted that the preliminary hearing on December 3, 1990, was the first occasion that he “considered the possibility that Ms. Cobbs had seen Caldwell during her interview with Inspector Gerrans.]” It therefore follows that Giannini did not consider whether the alleged show-up had taken place until more than two months after he had authorized charges against Caldwell.8 A prosecutor’s judgment cannot be said to be 8 Giannini continues, “I determined that Ms. Cobbs had not seen Mr. Caldwell, and I decided that even if she had, it hadn’t undermined the reliability or veracity of her testimony.” We take no position on whether the causal chain was broken after Giannini first learned of and considered the alleged fabrication on December 3, 1990. We hold only that Caldwell sufficiently rebuts any presumption of independence in Giannini’s 24 CALDWELL V. CITY & CTY. OF SAN FRANCISCO independent where the prosecutor considers potentially fabricated evidence without knowing that the evidence might be fundamentally compromised and misleading.9 Therefore, this falsified identification may have infected Giannini’s review of the evidence and rebuts any presumption that his September 20, 1990, decision to charge was independent. See Blankenhorn, 485 F.3d at 483 (plaintiff rebutted presumption of prosecutorial independence where, at the time of charging, the prosecutor only considered police reports and not contradictory evidence that showed the reports might contain fabricated evidence). Second, the allegedly falsified notes were likewise part of the evidentiary record that Giannini reviewed in deciding to charge Caldwell.10 Giannini declared, “[a]lthough I initially September 20, 1990, charging decision and that Caldwell raises a triable issue on causation. A jury will need to consider these causation questions. 9 Defendants argue that McSherry stands for the premise that the existence of fabricated evidence in a prosecutor’s file does not rebut the presumption of independent judgment. However, the officer in McSherry allegedly fabricated some of the evidence after the prosecutor’s initial decision to charge. See McSherry, 584 F.3d at 1133, 1136, 1142. Thus, the allegedly fabricated evidence could not have affected the prosecutor’s decision to charge. 10 The district court rejected Caldwell’s rebuttal arguments on this point by concluding that Gray’s declaration did not corroborate Caldwell’s story about the falsified statements and that, therefore, Caldwell only supported his contention with his own testimony. See Newman, 457 F.3d at 995 (“To rebut the presumption of independent judgment and to survive summary judgment on a malicious prosecution claim, a plaintiff must provide more than an account of the incident in question that conflicts with the account of the officers involved.”). CALDWELL V. CITY & CTY. OF SAN FRANCISCO 25 considered the inconsistency between [the July 13, 1990] statement and Caldwell’s recorded statement of September 21, 1990, during the course of the prosecution, I decided it was a minor factor when reviewing the totality of the evidence.” Again we hold that Giannini’s consideration of potentially fabricated evidence rebuts any presumption of independent judgment and creates a factual issue for the jury. For one, reading the prosecutor’s statement in the light most favorable to Caldwell, a jury could conclude that “considering the inconsistency” did not mean that the prosecutor knew that the statement was allegedly fabricated. Further, even though Giannini decided “during the course of the prosecution” that the inconsistency was a “minor factor,” a jury could reasonably conclude that the prosecutor relied on the falsified statement in deciding to charge Caldwell. As such, we conclude that Caldwell raises a triable issue as to causation for both the allegedly fabricated identification and allegedly falsified statements, even if the presumption of prosecutorial independent judgment extends to deliberate fabrication of evidence claims. We disagree. The district court reasoned that because Gray could not have heard Caldwell’s and Crenshaw’s conversation inside the police car, she did not have personal knowledge of the statements at issue. However, Crenshaw himself testified that Caldwell’s “spontaneous statement” about being present at the shooting and dealing drugs occurred during their first interaction on the street. As such, Gray’s declaration corroborates Caldwell’s claim that he did not say anything about the shooting to Crenshaw. Therefore, Caldwell may use Gray’s declaration to rebut any presumption of prosecutorial independence. 26 CALDWELL V. CITY & CTY. OF SAN FRANCISCO B. Inspectors Gerrans and Crowley Unlike in regards to Crenshaw, Caldwell does not contend that he has direct evidence that Gerrans and/or Crowley deliberately fabricated evidence during the investigation. Instead, Caldwell relies on the second prong of Devereaux to bring his claims. Therefore, he must establish that there is a triable issue as to whether “[d]efendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information.” Devereaux, 263 F.3d at 1076. Caldwell has not met this burden. Caldwell attacks Gerrans’ and Crowley’s investigative actions in a number of ways, most of which relate to their conduct during the July 26, 1990, photo lineup in which Cobbs identified Caldwell as the shooter. Essentially, Caldwell’s theory is that Cobbs’ initial statement on July 13 ruled out Caldwell as the shooter,11 so that her later identification of Caldwell constituted a change that must have been the result of improper coercion during the July 26 photo lineup. Specifically, Caldwell contends that Gerrans and Crowley intentionally did not record the initial portion of the July 26 meeting with Cobbs to cover up their use of the improperly suggestive techniques. The techniques that Caldwell alleges were coercive include: (1) telling Cobbs 11 We disagree that Cobbs’ statements to Gerrans during the canvass ruled out Caldwell as the shooter. As already touched upon, her physical description of the shooter is not exact as to Caldwell, but is not totally inconsistent either. Further, even though Cobbs said the shooters did not live in the area, there is uncertainty about whether Caldwell actually lived in the apartment next door. Finally, even if Cobbs knew Caldwell’s nickname two weeks after the initial interview, this is not conclusive evidence that she knew his moniker during the canvass. CALDWELL V. CITY & CTY. OF SAN FRANCISCO 27 that the “suspect” was in the lineup, (2) “reinforcing” her identification of Caldwell, and (3) offering her protection or financial benefits conditioned upon her picking a suspect out of the lineup or testifying against the suspect. Even considering the facts in the light most favorable to Caldwell, there is no triable issue that Gerrans and Crowley used these investigative techniques or that the techniques were so coercive or abusive that they rose to the level of intentionally fabricated evidence. As a preliminary matter, Caldwell is not contending that Gerrans’ and Crowley’s failure to videotape the initial exchanges with Cobbs during the July 26 photo lineup is, by itself, a constitutional violation. Instead, Caldwell references the decision not to videotape to imply that Gerrans and Crowley must have coached Cobbs during the unrecorded portion of the lineup. Without any evidence that coaching actually occurred during this time, it is not reasonable to draw Caldwell’s requested inference. Regardless, Caldwell also takes issue with some of the inspectors’ techniques during the recorded portion of the photo lineup. 1. Telling Cobbs that a Suspect was in the Lineup First, Caldwell asserts that the officers told Cobbs that “the suspect” was in the photo lineup they presented to her. Caldwell’s only evidence for this is that, the day after the meeting with Cobbs, the officers allegedly told a different witness, Bobila, that there was a suspect in the photo lineup. To support this, Caldwell cites to the following from Bobila’s deposition: [M]y recollection, [the officers] just asked me if I could recognize any of these six pictures 28 CALDWELL V. CITY & CTY. OF SAN FRANCISCO that was put in front of me. Like I said, they pick up a suspect that they think is a suspect, and it’s going to be six pictures that’s similar to the one they arrested, and I pick up the picture because I thought that he looks familiar. Even reading this statement in the light most favorable to Plaintiff, it says nothing about Gerrans and Crowley telling Bobila that a suspect was in the lineup. At best, this shows that Bobila’s understanding was that a suspect was in the lineup, but not how he came to have that understanding. Further, even if the officers had told a different witness that there was a subject in the lineup, it would likely not be enough to raise a triable issue as to whether Gerrans and Crowley also told Cobbs that a suspect was in her photo lineup. 2. “Reinforcing” Cobbs’ Selection of Caldwell Second, Caldwell argues that Gerrans and Crowley improperly “reinforced” Cobbs’ identification of Caldwell in the photo lineup “no less than eight times.” At first, the officers tried to confirm whether the person she selected was the shotgun shooter: “this is the man you saw out front of your house the night of the shooting and he had a shotgun. Is that correct?”Later, the officers asked, “[t]he man that you saw, you picked out in this picture here, the man with the shotgun, he was still shooting the shotgun as the car was leaving?” Finally, the officers referenced Caldwell by name: “[w]hen you went to the window, you recognized this man and I’m turning over the picture of Maurice Caldwell SF No. 445392. That’s the man that you recognized. ‘Cuz you saw him in the area before, right?’” CALDWELL V. CITY & CTY. OF SAN FRANCISCO 29 The officers never actually confirmed that Cobbs picked the correct “suspect,” apart from, possibly, stating Caldwell’s name, which only came towards the end of the discussion. This is different than directly confirming that a witness picked the correct suspect. Further, one of the cases Caldwell cites in support of his assertion, Oliva v. Hedgpeth, 375 F. App’x 697 (9th Cir. 2010) (unpublished), is both non- precedential and distinguishable. Here there is no allegation that Cobbs picked another photo out of the lineup before selecting Caldwell; no indication that Cobbs thought that she was required to select a photo from the lineup. See id. At 698. We do not believe that any “reinforcing” in this case was so coercive or abusive that it was likely to lead to a false identification. 3. Conditioning Benefits on Testifying against Caldwell Third, Caldwell alleges that the officers manipulated Cobbs’ identification by offering her incentives to testify. The alleged incentives came in the form of a promise to relocate her – conditioned on picking a witness – and financial benefits under SFPD’s Secret Witness Program. As to the promise to relocate Cobbs, Caldwell alleges that this was impermissibly suggestive because a jury could conclude that the offer of protection was only on the table if she picked a suspect out of the photo lineup. During Gerrans’ deposition, Caldwell’s attorney asked the officer whether they offered to protect Cobbs if she identified a suspect. To which Gerrans replied, “I believe that was said.” Gerrans continued “we didn’t go into witness . . . relocation or anything like that . . . . We didn’t promise her anything at that time. We promised we would take care of her to protect her.” 30 CALDWELL V. CITY & CTY. OF SAN FRANCISCO This evidence might create a triable issue about whether Gerrans and Crowley conditioned the offer to protect Cobbs on identifying a suspect – even if Gerrans did not promise anything to Cobbs, he still agreed with Caldwell’s attorney that he said the “police would take efforts to protect [Cobbs] if” she identified a suspect. Nonetheless, even if there is a factual dispute as to whether the officer conditioned protection on Cobbs testifying, any conditioning in this case is not so coercive as to lead to fabricated evidence. For example, while paying a witness for testimony may create adverse incentives to provide false statements, paying a witness alone does not violate due process. See United States v. Cuellar, 96 F.3d 1179, 1182 (9th Cir. 1996) (“We, and other courts as well, have consistently held that the government is not precluded from using [paid] informants before or during trial simply because an informant may have a motive to falsify testimony . . . .”); cf. United States v. McQuin, 612 F.2d 1193, 1195 (9th Cir. 1980) (witness “assured payment by the FBI only if there were an arrest and he testified”). If directly paying a witness does not violate a defendant’s due process, offering Cobbs protection if she testified is not so coercive that it would lead to false testimony. A defendant facing a paid or motivated witness can raise those issues during cross-examination. Finally, Caldwell makes a similar argument that, because Cobbs received a trip to Disneyland six months after Caldwell’s conviction, Crowley and Gerrans must have promised Cobbs financial benefits. In support of this theory, Caldwell identifies a letter from United Airlines awarding Cobbs three round trip tickets to Orange County “in support of the Secret Witness Program.” However, there is no CALDWELL V. CITY & CTY. OF SAN FRANCISCO 31 evidence linking Crowley or Gerrans to the Secret Witness Program. There is no suggestion of coercion here. Accordingly, we hold that Gerrans’ and Crowley’s investigative techniques were not so “coercive and abusive that [the officers] knew or should have known that [they] would yield false information.” Devereaux, 263 F.3d at 1076. As such, we affirm summary judgment in favor of Gerrans and Crowley. IV. CONCLUSION For the foregoing reasons we affirm the grant of summary judgment as to Inspectors Gerrans and Crowley, but reverse and remand as to Sergeant Crenshaw. Each party shall bear his own costs on appeal. AFFIRMED in part, REVERSED in part, and REMANDED.	{ "pile_set_name": "FreeLaw" }
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 25 KA 09-01157 PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER KERRY A. COLEMAN, DEFENDANT-APPELLANT. SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered April 6, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the first degree. It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated and the matter is remitted to Monroe County Court for further proceedings on the superior court information. Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree (Penal Law § 215.51 [c]), defendant contends that his guilty plea was not knowingly, voluntarily and intelligently entered. Although that contention is not preserved for our review, we conclude that defendant’s statements during the plea colloquy “cast significant doubt upon his guilt with respect to the crime of [criminal contempt in the first degree as charged in the superior court information (SCI)], and thus this case falls within the exception to the preservation requirement” (People v Jones, 64 AD3d 1158, 1159, lv denied 13 NY3d 860; see People v Lopez, 71 NY2d 662, 666). An essential element of the crime of criminal contempt in the first degree pursuant to Penal Law § 215.51 (c) is that the defendant has violated an order of protection issued pursuant to “sections two hundred forty and two hundred fifty-two of the domestic relations law [regarding orders of protection issued during child custody and divorce proceedings], articles four, five, six and eight of the family court act [regarding child custody, paternity, parental rights and family offenses, respectively, or] section 530.12 of the criminal procedure law [regarding victims of family offenses].” Another essential element of the crime is that defendant has “been previously convicted of the crime of . . . [, inter alia,] criminal contempt in the . . . second degree for violating an order of protection as -2- 25 KA 09-01157 described herein within the preceding five years” (Penal Law § 215.51 [c]). Here, during an attempt to plead guilty, defendant indicated that he had been previously convicted of the crime of criminal contempt in the second degree and that he had an appeal pending with respect to that conviction. He further indicated that such conviction resulted from his actions at a school board meeting and that the order of protection that he was alleged to have violated in this offense was issued during that prior criminal contempt proceeding. County Court stated that it could not accept defendant’s plea because defendant was challenging the predicate conviction. At a subsequent proceeding, defendant agreed with the prosecutor’s statement that defendant was no longer challenging the predicate conviction, and the court accepted his guilty plea. Although the court, before accepting defendant’s plea, questioned him regarding his previous challenge to the predicate conviction, it did not question him concerning the basis for the issuance of the instant order of protection violated by defendant or concerning the basis of defendant’s predicate conviction. We conclude that defendant’s factual recitation negated essential elements of the crime to which he pleaded guilty inasmuch as his colloquy indicated that the order of protection was not issued pursuant to the statutory sections set forth in Penal Law § 215.51 (c), and that the predicate conviction was not based upon a violation of such an order of protection. Thus, the court had a “duty to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary” (People v Lopez, 71 NY2d 662, 666). Consequently, as the People correctly concede, “[a]lthough [the court] made some further inquiries of defendant, none of them [was] even remotely sufficient to determine that the plea was entered intelligently and with knowledge of the nature of the charge” (People v Roy, 77 AD3d 1310, 1311 [internal quotation marks omitted]). We therefore reverse the judgment, vacate the plea, and remit the matter to County Court for further proceedings on the SCI (see People v Jenkins, 94 AD3d 1474, 1475; see also Roy, 77 AD3d at 1310). Defendant further contends that the SCI is jurisdictionally defective because it fails to allege that he violated that part of the order of protection directing him to stay away from the person on whose behalf the order was issued. “Because defendant’s contention is related to the sufficiency of the factual allegations, as opposed to a failure to allege the material elements of the crime, that contention does not survive defendant’s guilty plea” (People v Price, 234 AD2d 978, 978-979, lv denied 90 NY2d 862). Inasmuch as we are vacating the plea, however, we address defendant’s contention, and we conclude that it lacks merit. The SCI is jurisdictionally sufficient because it alleges that defendant committed the crime of criminal contempt in the first degree and tracks the language of the relevant section of the Penal Law (see id.). Thus, if defendant seeks greater specificity, his remedy is to demand a bill of particulars (see People v Starkweather, 83 AD3d 1466, 1466). In light of our determination, we do not address defendant’s -3- 25 KA 09-01157 remaining contentions. Entered: March 15, 2013 Frances E. Cafarell Clerk of the Court	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/15/2017 05:13 PM CDT - 262 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 Greg Stewart et al., appellees, v. Dave Heineman, in his official capacity as Governor of Nebraska, et al., appellants. ___ N.W.2d ___ Filed April 7, 2017. No. S-16-018. 1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. 2. Attorney Fees: Appeal and Error. When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which ruling an appellate court will not disturb on appeal unless the court abused its discretion. 3. Summary Judgment. In the summary judgment context, a fact is mate- rial only if it would affect the outcome of the case. 4. Justiciable Issues. A justiciable issue requires a present, substantial controversy between parties having adverse legal interests susceptible to immediate resolution and capable of present judicial enforcement. 5. Courts: Justiciable Issues. A court decides real controversies and determines rights actually controverted, and does not address or dispose of abstract questions or issues that might arise in a hypothetical or ficti- tious situation or setting. 6. Justiciable Issues: Standing. Standing is a key function in determining whether a justiciable controversy exists. 7. Standing: Jurisdiction. Standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court’s jurisdiction and justify the exercise of the court’s remedial powers on the litigant’s behalf. 8. Actions: Justiciable Issues: Standing. The ripeness doctrine is rooted in the same general policies of justiciability as standing and mootness. As compared to standing, ripeness assumes that an asserted injury is - 263 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 sufficient to support standing, but asks whether the injury is too contin- gent or remote to support present adjudication. 9. Actions: Jurisdiction. An appellate court uses a two-part inquiry to determine ripeness: (1) the jurisdictional question of the fitness of the issues for judicial decision and (2) the prudential question concerning the hardship to the parties of withholding court consideration. 10. Declaratory Judgments. The function of a declaratory judgment is to determine justiciable controversies which either are not yet ripe for adjudication by conventional forms of remedy or, for other reasons, are not conveniently amenable to the usual remedies. 11. Equal Protection: Discrimination. The injury in an equal protection case is the imposition of a barrier that makes it more difficult for mem- bers of one group to obtain a benefit, rather than the ultimate inability to obtain the benefit. 12. Discrimination. When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need only demonstrate that he or she is ready and able to perform and that a discriminatory policy prevents him or her from doing so on an equal basis. 13. Discrimination: Standing. For those persons who are personally sub- ject to discriminatory treatment, stigmatizing injury caused by dis- crimination is a serious noneconomic injury that is sufficient to sup- port standing. 14. Standing. Standing does not require exercises in futility. 15. Actions: Moot Question. An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action. 16. Discrimination: Declaratory Judgments: Injunction: Proof. If a dis- criminatory policy is openly declared, then it is unnecessary for a plaintiff to demonstrate it is followed in order to obtain injunctive or declaratory relief. 17. Actions: Moot Question. A defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. 18. Actions: Moot Question: Proof. A defendant claiming that its volun- tary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. 19. Appeal and Error. A court’s consideration of a cause on appeal is lim- ited to errors assigned and discussed. 20. Attorney Fees: Appeal and Error. On appeal, a trial court’s deci- sion awarding or denying attorney fees will be upheld absent an abuse of discretion. - 264 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 Appeal from the District Court for Lancaster County: John A. Colborn, Judge. Affirmed. Douglas J. Peterson, Attorney General, James D. Smith, Ryan S. Post, and Jessica M. Forch for appellants. Amy A. Miller, of ACLU Nebraska Foundation, Inc., Leslie Cooper, of ACLU Foundation, Inc., and Garrard R. Beeney and W. Rudolph Kleysteuber, of Sullivan & Cromwell, L.L.P., for appellees. Robert McEwen and Sarah Helvey, of Nebraska Appleseed Center for Law in the Public Interest, for amicus curiae Nebraska Appleseed Center for Law in the Public Interest. Daniel S. Volchok and Kevin M. Lamb, of Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., and Robert F. Bartle, of Bartle & Geier Law Firm, for amici curiae Child Welfare League of America et al. Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, K elch, and Funke, JJ. Wright, J. I. NATURE OF CASE The plaintiffs, three same-sex couples, sought, pursuant to 42 U.S.C. § 1983 (2012), to enjoin the defendants, Dave Heineman, the former Governor of the State of Nebraska; Kerry Winterer, in his official capacity as the chief execu- tive officer of the Department of Health and Human Services (DHHS); and Thomas Pristow, in his official capacity as the director of the Division of Children and Family Services, from enforcing a 1995 administrative memorandum and from restricting gay and lesbian individuals and couples from being considered or selected as foster or adoptive parents. The court ordered the memorandum rescinded and stricken and enjoined the defendants and those acting in concert with them from enforcing the memorandum and/or applying a categorical ban - 265 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 to gay and lesbian individuals and couples seeking to be licensed as foster care parents or to adopt a state ward. The court further ordered the defendants and those acting in con- cert to “refrain from adopting or applying policies, procedures, or review processes that treat gay and lesbian individuals and couples differently from similarly situated heterosexual indi- viduals and couples when evaluating foster care or adoption applicants under the ‘best interests of the child’ standard set forth in DHHS’ regulations.” The court awarded the plaintiffs costs and attorney fees. The defendants appeal. They do not assert that it is constitu- tional to discriminate on the basis of sexual orientation in the licensing or placement of state wards in foster care. Instead, the defendants argue that the plaintiffs lack standing because they have not yet applied for and been rejected in obtaining a foster care license or in having a state ward placed in their homes. Alternatively, the defendants argue that there was no case and controversy, because the memorandum that was the focus of the plaintiffs’ complaint ceased to be the policy of DHHS by the time this lawsuit was filed, despite the fact that the memorandum was never rescinded and it remained on the DHHS website. Finally, the defendants claim that the plain- tiffs’ lawsuit became moot when the policy memorandum was removed from the DHHS website 3 weeks after the plaintiffs’ motion for summary judgment was filed. II. BACKGROUND 1. Complaint The complaint, filed on August 27, 2013, centered on an administrative memorandum (Memo 1-95) issued in 1995 by the then Department of Social Services, which subsequently became DHHS in 1996. Memo 1-95 was written by the director of the department and states in relevant part: It is my decision that effective immediately, it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify - 266 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 themselves as homosexuals. This policy also applies to the area of foster home licensure in that, effective imme- diately, no foster home license shall be issued to persons who identify themselves as homosexuals. A similar policy was set forth in Memo 1-95 regarding unmarried heterosexual couples. An addendum to Memo 1-95 directed staff not to specifically ask about an individual’s sexual orientation or marital status beyond those inquiries already included in the licensing application and home study. The stated reason for the policy was this State’s intent to place children in the most “family-like setting” when out-of- home care is necessary. Though Memo 1-95 and the adden- dum stated that staff would be drafting a proposed program and licensing regulation to be brought before a public hear- ing in a more formal manner, such proceedings apparently never occurred. The plaintiffs’ complaint alleged that Memo 1-95 was still “in effect” as of April 1, 2013. It was not disputed by the defend ants that Memo 1-95 had not been “rescinded or replaced.” The complaint alleged that Memo 1-95 set forth a policy prohibiting the Department of Social Services, now DHHS, from issuing foster home licenses to or placing foster chil- dren with persons who identify themselves as homosexuals or unrelated, unmarried adults living together. The plaintiffs alleged that this policy also effectively banned homosexuals from adopting children from state custody, because individuals may adopt children from state care only if they have first been licensed as foster parents. The plaintiffs consist of three homosexual couples who alleged in the complaint that they are able and ready to apply to be foster parents and would do so but for the policy stated in Memo 1-95. One couple, Greg Stewart and Stillman Stewart, further alleged that they were married in 2008 in California. They alleged they had contacted DHHS in October 2012 to inquire about obtaining a foster home license. Greg and Stillman - 267 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 alleged they were told by a DHHS representative that they could not obtain a license because same-sex couples are barred from becoming licensed under DHHS policy. Another couple, Todd Vesely (Todd) and Joel Busch (Joel), alleged that they “began the process of applying” to become foster parents in July 2008. They completed training, a home study, and submitted to background checks. But, in 2010, Todd Reckling, the director of DHHS’ Division of Children and Family Services at that time, informed Todd and Joel that it was DHHS’ policy to bar licensing unrelated adults living together. In their answer, the defendants admitted that Reckling informed this couple of Memo 1-95. The plaintiffs generally alleged that the policy expressed in Memo 1-95 violated equal protection and due process under the state and federal Constitutions and violated 42 U.S.C. § 1983 of the Civil Rights Act. They alleged that prospective foster and adoptive parents were being subjected to differen- tial treatment on the basis of their sexual orientation, and they asserted that sexual orientation constituted a suspect class. The plaintiffs asserted that there was no compelling interest, or even a rational basis, justifying such disparate treatment. The plaintiffs asserted that the policy found in Memo 1-95 imper- missibly burdened their personal liberty and privacy rights to enter into and maintain intimate personal relationships within their own homes. The plaintiffs asserted that they had no adequate remedy at law to redress these wrongs, which were of a continuing nature and would cause irreparable harm. They prayed for a declara- tion that the policy stated in Memo 1-95 is unconstitutional, void, and unenforceable, and an order enjoining the defendants from enforcing Memo 1-95. In addition, the plaintiffs asked for an order “directing Defendants to evaluate applications of gay and lesbian individ- uals and couples seeking to serve as foster or adoptive parents consistently with the evaluation process applied to applicants that are not categorically excluded.” - 268 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 Finally, the plaintiffs asked for attorney fees and further relief as the court deemed proper. The defendants alleged as affirmative defenses that the plaintiffs had failed to state a cause of action and that the defendants had not violated any of the plaintiffs’ constitutional, civil, or statutory rights. The defendants did not affirmatively allege that Memo 1-95 was no longer in effect or enforced. 2. Motions Below The defendants moved to dismiss on the grounds that on the face of the complaint, the plaintiffs lacked standing and stated no claim upon which relief could be granted. The court over- ruled the motion to dismiss. On the issue of standing, the court relied upon Gratz v. Bollinger1 for the proposition that the injury in fact in an equal protection case is the denial of equal treatment resulting from the imposition of a barrier, not the ultimate inability to obtain the benefit. Under Gratz, the plaintiffs need only show they are “‘able and ready’” to apply for a benefit should the discrimi- natory policy that prevents them from doing so be removed.2 The court concluded that because the plaintiffs alleged they were able and ready to apply for foster care licenses, their complaint sufficiently alleged standing. On the issue of failure to state a claim, the court first observed that nothing in Nebraska law sets forth a policy pro- hibiting homosexuals or unmarried couples from fostering or adopting.3 It then concluded that the allegations of disparate treatment were sufficient to state causes of action under equal protection and due process. On December 11, 2014, the defendants moved for sum- mary judgment. On January 27, 2015, the plaintiffs filed 1 Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003). 2 See id., 539 U.S. at 262. 3 See Neb. Rev. Stat. §§ 43-101, 43-107, and 43-109 (Reissue 2016). - 269 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 a cross-motion for summary judgment. On October 16, the plaintiffs moved for attorney fees. The court’s orders on these motions are the subject of the current appeal. 3. Evidence at Summary Judgment Hearing In support of their motion for summary judgment, the plaintiffs submitted affidavits in which they generally con- firmed the truth of their factual allegations made in the com- plaint. The plaintiffs expressed their desire to serve as foster parents and “be subject to the same approval process that is applied to heterosexuals and not be subject to any discrimi- natory approval process based on our sexual orientation.” Greg and Stillman clarified they no longer live in Nebraska, but that they still wish to adopt a Nebraska child out of fos- ter care. Numerous exhibits, including the transcripts of the depositions of several DHHS employees, were also entered into evidence. (a) Todd Reckling Reckling was the director of the Division of Children and Family Services of DHHS when Todd and Joel were com- municating with DHHS about the then almost 2-year delay in making any licensing or placement decision since Todd and Joel had completed all the necessary training and background checks. A letter written in June 2010, by Reckling to Todd and Joel, was entered into evidence. Reckling wrote to Todd and Joel that DHHS policy “allows for an exception” which would have to be made in order for either one of them to foster a child, given that they are two unmarried individuals living together. Reckling gave no indica- tion that such an exception would be made in their case. Even if such an exception were made, Reckling explained, a child could not be placed jointly with or adopted jointly by Todd and Joel. Reckling explained that “‘second parent adoptions’” were not permitted by a second person who is not married to the first and that Todd and Joel could not marry, because the - 270 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 Nebraska Constitution states that only marriage between a man and a woman shall be recognized in Nebraska. (b) Kerry Winterer Todd and Joel were subsequently in contact with Winterer, who has been the chief executive officer of DHHS since July 2009. Winterer sent a letter to Todd and Joel’s attorney in November 2011, which was also entered into evidence. By that time, Todd and Joel had waited over 3 years to foster a child. In the letter, Winterer repeatedly cited to Memo 1-95. Winterer explicitly stated that “Policy Memorandum # 1-95 is still in force.” But in his deposition taken in July 2014, Winterer deferred to Pristow, the director of the Division of Children and Family Services for DHHS at that time, regarding the precise details of the then-current policy and the reasons for it. He noted that Pristow’s practice permitted placement with homosexual appli- cants as long as their placement was approved by Pristow in his capacity as director. Winterer testified that he could imagine no reason for this extra layer of review and approval except to ensure there was no bias against persons who identify themselves as homo- sexual. However, he also noted that because the Nebraska Constitution does not recognize marriage between two persons of the same gender, homosexual couples who have married in another state would be considered as cohabitating, unrelated adults. Winterer then elaborated that there are “stability” con- cerns in placing children with cohabitating, unrelated adults. Winterer stated that the current regulations do not allow for both adults in a cohabitating, unmarried relationship to hold a joint license and that there can only be one license issued per address. Winterer testified he did not believe identifying as homo- sexual was relevant to that person’s qualification as a foster or adoptive parent, but that he could envision sexual orienta- tion being a factor in the best interests analysis, in the event - 271 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 it could cause a problem with the relationship between the biological parent and the foster parent. Winterer stated that Memo 1-95 was “modified by practice and . . . the policy of the current director.” Winterer thought that Memo 1-95 was still used in DHHS training materi- als. Nevertheless, he believed new employees were “informed about what the current practice is and the current process in terms of dealing with applicants.” He was “assuming that [the new practice] has been communicated to [the caseworkers and supervisors in the service areas] through one means or another.” He testified that there was no documentation of any new policy or practice. With regard to the failure to formally rescind Memo 1-95, Winterer said, “I think our attitude would be it’s probably unnecessary because policy evolves and is the expression of practice and policy of the director, who is in charge of mak- ing policy for the division under which this falls.” He also thought it was “probably unnecessary” to rescind Memo 1-95, which “goes back 20 years and was issued by a director of a[n] agency that no longer exists.” He did not specifically discuss any possible distinction between “policy” and “practice.” Finally, Winterer explained that there “may be, shall we say, some . . . implications” in formally rescinding Memo 1-95. Winterer stated that rescinding Memo 1-95 “could draw attention on the part of certain individuals in the state of Nebraska to . . . the issue of gay marriage and some other . . . sensitive issues” and that it could increase scrutiny and “complicate our going about doing our business.” He elabo- rated that he was concerned formal rescission of Memo 1-95 could result in elected officials taking actions that would make it difficult for DHHS to place children with homo- sexual applicants. (c) Thomas Pristow In March 2012, Pristow took over Reckling’s position of director of the Division of Children and Family Services for - 272 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 DHHS, and remained in that position at the time his deposi- tion was taken in September 2014. In his deposition, Pristow indicated that it was his “understanding” that the same licens- ing restrictions existed for single, cohabitating, unmarried, married, heterosexual, or homosexual applicants, even before he adopted any policies or procedures with regard to homo- sexual applicants. He was speaking in terms of a single license, however, and not the ability to obtain a joint license. An email from 2012 indicates that legal advisors before Pristow’s tenure had opined that Memo 1-95 could not be enforced as to licens- ing, because the regulations concerning licensing are silent on the sexual orientation of the applicant. But licensing is different than placement. While a child generally cannot be placed in a nonlicensed home, having a person licensed in a home does not mean a child will be placed there. Sometime in the summer of 2012, Pristow verbally instructed his service area administrators and his deputy director that homosexual applicants could be considered for foster or adop- tive placements. Pristow did not specifically address whether this was a change in “policy” versus a change in “practice,” though most of the questions and answers referred to “policy.” Pristow’s placement protocol, hereinafter referred to as the “Pristow Procedure,” set forth different procedures for homo- sexual applicants than for heterosexual applicants. When a caseworker recommends a placement in the home of a mar- ried, heterosexual couple, that placement is effective if the caseworker’s supervisor agrees with the recommendation. But, under the Pristow Procedure, as described by Pristow, if the caseworker recommends a placement in the home of a homosexual couple or individual, then the placement recom- mendation can only take effect after being approved by the caseworker’s supervisor, the service area administrator, and, finally, Pristow himself. Other DHHS employees clarified that as to homosexual applicants under the Pristow Procedure there are actually five layers of placement review: the caseworker, - 273 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 the caseworker’s supervisor, the administrator, the service area administrator, and then the director (Pristow). According to Pristow, the protocol for an unmarried hetero- sexual adult living with another adult—or for a married, het- erosexual felon—would require only three levels of approval: the caseworker’s, the caseworker’s supervisor, and the service area administrator’s approval to effect the placement recom- mendation. Other DHHS employees clarified that this would be four levels of approval, as it would include the administrator. Such applicants would not require Pristow’s approval. Pristow explained that there was no category of appli- cants, other than homosexuals, that required Pristow’s personal approval before a caseworker’s placement recommendation could be implemented. And Pristow clarified that he did not review denials of placement with homosexual applicants. He only reviewed recommendations for placement. Pristow testified that there was no reason, with respect to child welfare, that a person who identifies as homosexual, or that unmarried persons living together, should be treated dif- ferently than heterosexual, married persons in the licensing or placement of a child in a foster or adoptive home. He said that in his 20 years of experience in children and family services, “gay and lesbian foster parents do just as good on — if not bet- ter than regular foster parents, everything being equal.” Pristow agreed that there was a consensus in the scientific literature that the outcome for children was not adversely affected by being raised by homosexual persons, and he said that he had no reason to doubt that consensus. Pristow explained that Nebraska was a conservative state with a constitutional amendment banning gay marriage. He “take[s] that into account when [he] make[s] these type[s] of placements.” When asked how he takes that into account, Pristow explained, “I make it my decision and not the field’s.” Pristow explained that when reviewing placement recom- mendations with homosexual applicants, he did not consider the sexual orientation of the recommended foster or adoptive - 274 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 parent in making his decision. The applicant’s sexual orienta- tion was only relevant insofar as it was the triggering factor of the extra layer of review. But Pristow also indicated that Nebraska’s laws and the constitutional amendment regarding homosexual couples were somehow taken into account in his decisonmaking: I do work for the State, and I am supportive of its laws and its amendments to the constitution. And I take that in balance when I, you know, make those type[s] of deci- sions about placing children in gay and lesbian foster homes. . . . .... . . . [T]his is a conservative state, and I’m cognizant of that, and I want to make sure that I — that my process is — has foundation, and that, again, it reflects what the best interest of that child is . . . . Pristow, however, denied that he took a “harder look” at placements with homosexual applicants. And he stated that he had no reason to doubt the competency of caseworkers and their supervisors in making best interests decisions. He explained that it is just “a process so that I can take on the responsibility of making that decision from the field so that these placements can be made in accordance with the best interests of the child.” Pristow acknowledged that, as of the time of the deposi- tion in September 2014, Memo 1-95 was still on DHHS’ website and that there was nothing in writing on the website or elsewhere disavowing the policies stated in Memo 1-95. To the contrary, it was his understanding that Memo 1-95 was included in the packet of administrative memorandums that was given to new trainees as they enter into the system. Neither was there anything in writing, to his knowledge, reflecting the Pristow Procedure. But Pristow said that, as new trainees go out into the field, they are supposed to be told of it. Pristow was unsure exactly how thoroughly this was done. He explained: - 275 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 As the new trainee goes out to the field, either through a mentoring protocol that we have or through [his or her] new supervisor, there is — they are — they begin to learn the practice of how we do child welfare in Nebraska. And as this would come up or when it does come up, they are told of the protocol that I put — the policy that I put in place verbally. .... . . . I can’t speak to whether [a caseworker, when approached for the first time by a homosexual applicant] would know [Memo 1-95 is no longer the current prac- tice]. My instructions were to the service area administra- tors when I gave my verbal policy out, and my direction was to make sure that it was disseminated throughout the field. Pristow agreed that there “might be some confusion” for new employees as to whether Memo 1-95 is still DHHS’ policy and practice, but he believed “the field is very competent, very competent in making sure that information is disseminated and that we look out for the best interests of the child and we find the best possible placement for that child regardless of gender — or of orientation.” Pristow acknowledged that four new service area adminis- trators had been hired or promoted into that position since the summer of 2012 and that he did not have a specific discus- sion with those new service area administrators regarding his verbal policy. Pristow said, “The general intent and theme of what I wanted to have happen, though, I’m sure was conveyed through the deputy and in some manner or form as we went through the years.” Pristow testified that it was within his authority to send out a notification to all staff stating that Memo 1-95 no longer represents DHHS policy. He had chosen not to do so. Pristow testified that Memo 1-95 was “still on the website and it’s still in play.” He explained “it hasn’t been rescinded except through verbal instructions by me to my service area administrators.” - 276 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 There was “nothing on the website that would indicate [Memo 1-95 is] no longer policy.” Pristow agreed that a prospective applicant could look at the website and be discouraged by Memo 1-95 from applying to be a foster or adoptive parent. Pristow testified that he delib- erately determined to keep Memo 1-95 on the website and in DHHS’ training materials, and to have the Pristow Procedure be verbal only. Pristow could think of no instance other than Memo 1-95 wherein DHHS has had an administrative memo- randum on its website setting forth a policy that is not, in actu- ality, DHHS’ policy and practice. (d) Other DHHS Employees The depositions of two deputy directors at DHHS, a policy administrator, a field operations administrator, and five serv ice area administrators were also entered into evidence for purposes of the summary judgment motions. At the time the depositions were taken, in October and November 2014, Memo 1-95 was still on the DHHS website. Tony Green, a deputy director at DHHS, testified that it is DHHS’ general prac- tice to update memorandums as needed and that, typically, a memorandum that no longer represents DHHS policy would be removed from the website. The decision to remove or keep a memorandum from the website would be made by the director and the chief executive officer. No other employee opined with any certainty as to the stan- dard procedure for memorandums that cease to represent DHHS’ policy or procedure. However, a copy of a DHHS web page listed, under the broad category of “Archived Administrative & Policy Memos,” the subcategories of “Rescinded Memos” and “Rescinded and Replaced Memos.” Memo 1-95 was not listed under either of those categories. The web page set forth that it was last updated on February 6, 2015. None of the employees deposed were aware of anything in writing on the website or elsewhere, informing staff and poten- tial applicants that Memo 1-95 no longer represented DHHS’ - 277 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 policy or its practice. Neither were any of the employees aware of anything in writing contradicting Memo 1-95 by expressly stating that homosexuals were permitted to serve as foster or adoptive parents. The employees described Memo 1-95 as still the current “policy,” but stated that it did not represent the current “prac- tice.” According to these employees, Memo 1-95 had not been “rescinded” or “modified” by the director, thus it was still “in effect,” or “active.” They all agreed it was not followed, however. The witnesses were unaware of any other instance where DHHS practice was in conflict with an existing pol- icy memorandum. A field operations administrator for DHHS described the Pristow Procedure as “granting an exception on [an] existing memo.” And a document was entered into evidence that had been created in August 2014 by Nathan Busch, a DHHS policy administrator, listing the “Placement Exceptions by Director” from July 2013 to August 2014. Numerous such exceptions listed the “Type of Exception” as “Same-Sex Couple.” The DHHS employees uniformly described the current prac- tice as having five layers of approval for placement of a foster child in the home of same-sex couples or individuals who identify as homosexual. These layers consist of the original recommendation for placement by the caseworker and then approval by the caseworker’s supervisor, the administrator, the service area administrator, and, finally, the director. The DHHS employees testified that felons and unmarried, unrelated adults also require extra layers of approval, but only four. Only homo- sexual applicants required the approval of the director. According to Kathleen Stolz, a service area administrator, Reckling had required director approval of all placements with unmarried couples. And Stolz stated that “we no longer needed to send for approval for placement in an unmarried, unrelated home to the director unless there was a self-disclosure that they were in a same-sex relationship or were gay or lesbian.” The employees believed that under the Pristow Procedure, - 278 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 sexual orientation was not to be taken into account in a best interests analysis. The employees testified that during training, new DHHS hires are no longer given a physical copy of Memo 1-95, or of any of the policy memorandums. Instead, trainees are noti- fied of where to locate the administrative memorandums on the website. There was no indication during new employees’ classroom training that Memo 1-95 is no longer to be followed. The employees explained that the Pristow Procedure is instead discussed in the field during mentoring of new case- workers, as well as through “word-of-mouth” within the serv ice areas. DHHS also holds monthly meetings of service area administrators, and one or two caseworkers or supervisors from each service area attend those meetings. The Pristow Procedure is discussed at these meetings whenever there are new service area administrators. One DHHS deputy director explained that dissemination of the Pristow Procedure is always verbal, “[b]ecause we have a current policy on the — on the issue.” A service area administrator testified that when asked about the status of Memo 1-95 by DHHS staff, she responds that it is on the website; it is “still an administrative memo, and it’s still in effect.” She does not explain the Pristow Procedure unless specifically asked about it. None of the employees deposed could state with certainty that all DHHS employees were aware of the Pristow Procedure. However, none were specifically aware of any current confu- sion as to the Pristow Procedure within DHHS. As to dissemination of the current practice to the approxi- mately 40 agencies that DHHS contracts with to provide foster care services, the DHHS employees explained that there are regular meetings with such agencies. There was testimony that the Pristow Procedure was discussed in at least one of those meetings. But, again, the employees were uncertain whether every contractor knew of the Pristow Procedure. One service area - 279 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 administrator believed there was still confusion within outside contracting agencies about DHHS policy and practice as con- cerns placement with homosexual applicants. The employees agreed that there is a need for more foster parents and that there are no child welfare interests served by excluding homosexual applicants or by requiring extra layers of approval for placements with homosexual licensees. The employees conceded that Memo 1-95 could deter prospective homosexual foster and adoptive parents from pursuing foster care or adoption. According to the DHHS employees, the approval was gen- erally described as strengthening the placement decision as being in the best interests of the children placed within homes of homosexual foster parents—in the event that a particular placement became an “issue.” Busch was unsure exactly what the reason was, but believed Pristow was “referring to the fact that there is a written policy in place that he does not support the practice of.” (e) Internal Communications Internal email correspondence from June 28, 2012, to June 4, 2013, was also offered by the plaintiffs and admitted into evidence in support of their motion for summary judgment. The emails were submitted as evidence of the lack of dissemi- nation and clarity surrounding the Pristow Procedure and the continuing validity of Memo 1-95. In an email dated June 29, 2012, a DHHS employee expressed that he and any contractor needed to follow Memo 1-95 until that policy is changed. And in correspondence with a contracting agency, he explained that the likelihood of place- ment with a same-sex couple was “small as the adults in that home would need to be the best possible placement for a spe- cific child and [the Division of Children and Family Services] would need to take the request to make the placement all the way to Central Office and get [its] agreement.” In various other emails in the months following the announcement of the Pristow Procedure, employees appeared - 280 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 to be aware of the Pristow Procedure, but asked for clarifi- cation on the details. In July 2012, Marylyn Christenson, a DHHS resource development supervisor, expressed confusion, in light of Memo 1-95, about whether homosexual applicants could be licensed. This communication took place because a contracting agency was also confused. Still, Christenson stated that she knew placement approval for a homosexual applicant would have to be from the director. She opined that “we would need to tell these [homosexual individuals interested in foster- ing] that [any placement will require director approval] so they know before they go to the trouble to get [licensed].” In September 2012, a different contracting agency asked for clarification as to whether same-sex couples could foster, given that the “memo from the 90’s seems to be in [e]ffect.” Pristow personally responded to this email, explaining that DHHS’ legal department advised that DHHS cannot deny a license to applicants who meet the regulations, which do not touch upon sexual orientation. But Pristow also explained that licensing “does not guarantee placement as the place- ment would need my prior approval before the placement could occur.” In October 2012, the employee of yet another contract- ing agency still believed that neither party of a same-sex couple could be licensed to foster. A DHHS employee told that employee that one member of the same-sex couple could be licensed, but the DHHS employee was unable to answer the agency’s questions regarding what factors were involved in the placement decision for a licensed member of a same- sex couple. In November 2012, Christenson expressed in an email her belief that Memo 1-95 was “still in force since it’s on the website.” Stolz responded that she thought Memo 1-95 had been removed from the website, but that she would follow up. Christenson responded that she “didn’t know an Admin memo could be removed, w/out a replacement, or notice. It’s been confusing to follow how they are handling that memo.” - 281 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 When, after discussion with Stolz, the resource developer administrator emailed Christenson that they would be going ahead with licensing one of the applicants who is in a same- sex relationship, Christenson stated that “no one has clearly explained to me how we can license a home when [Memo 1-95] is still in effect.” Further emails between Christenson and other employees discussed being unwilling to license homosex- ual applicants, apparently despite communications from their supervisors to do so. An email to Christenson from a DHHS resource developer explained that she was “not comfortable going against policy” and that others should know that Memo 1-95 “which clarifies the policy has not been rescinded so . . . it is basically against policy [to license homosexual applicants] at this point.” In November 2012, Busch stated to the service area admin- istrators that he had been receiving some inquiries about the status of Memo 1-95. He clarified that Memo 1-95 was “still active and has not been rescinded. An exception to [Memo 1-95] must be granted by Director Pristow.” There was testimony that up until approximately September 2014, Christenson and other staff were placing “holds” on all licensed homes where homosexuals or unmarried couples resided. When a home is on hold, no placements can be made in the home until the hold is lifted. These holds were appar- ently meant to “trigger the staff to know that they needed to have either service area or director approval prior to the place- ment to ensure that we were following current practice.” After Stolz became aware of the practice of putting these homes on hold, it ceased. (f) Answers to Interrogatories In the defendants’ answers to interrogatories, they described that it was DHHS’ “policy” to allow only one license per address and to allow a joint license only for married couples. With regard to placements of wards when the foster parent is unmarried and there are other adults living in the home, the defendants explained: - 282 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 [P]lacement of wards when the foster parent is unmarried and there are other adults living in the home if: • The ward is related to the foster parent by blood or adoption • The ward is a former foster child of the foster parent • The foster parent is the legal guardian of the ward, or • The foster parent is responsible to provide physical care to and supervision of the ward, whose placement is supervised by a developmental disability agency. If none of the above criteria are met, DHHS policy also allows for an exception if the local office believes that placement in the home would be appropriate and in the best interest of the child. If the foster parent has identified as gay or lesbian, the Service Area Administrator would then make a request for approval to the Director of the Division of Children and Family Services. The Director would then make a decision on whether placement in the home would be appropriate and in the best interest of the child. If the placement is approved, the ward will be placed with the licensed or approved individual. (Emphasis supplied.) The defendants did not address whether it would recognize same-sex couples as married if they were married in another state. In a response to an interrogatory asking how DHHS would determine an applicant’s sexual orientation, the defendants relied on Memo 1-95 to point out its policy not “‘to ask any specific questions about an individual’s sexual orientation or marital status than is currently asked in the licensing applica- tion, home study, etc.’” The defendants stated that training instructors do not distribute any administrative memorandums during orientation training, but are “expected to review poli- cies on their own.” (g) Memo 1-95 Removed From Website The defendants submitted the affidavit of Green, the act- ing director of the Division of Children and Family Services. - 283 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 Green obtained that position on January 8, 2015. Green averred that Memo 1-95 was removed from the DHHS website on February 20, 2015, approximately 4 weeks after the defendants filed their motion for summary judgment and 3 weeks after the plaintiffs filed their cross-motion for summary judgment. Green did not state that Memo 1-95 had been rescinded. Nor did Green address whether homosexual applicants were still subject to a five-tier approval process for placement. 4. A rguments M ade Below At the hearing on the motions for summary judgment, the plaintiffs argued that DHHS discriminated on the basis of sex- ual orientation. The plaintiffs argued that it did so both by virtue of Memo 1-95 and through DHHS’ five-tier Pristow Procedure. The defendants did not object to the Pristow Procedure as being outside the scope of the pleadings. The plaintiffs pointed out that Memo 1-95 has not been rescinded and is used in new employee training; some DHHS employees and private contracting agencies continue to imple- ment it. The plaintiffs pointed out that Memo 1-95 was removed from the website only 2 months before the summary judgment hearing and that it was still not listed on the web page for rescinded policies. The plaintiffs pointed out that the defend ants have not given an official announcement that they treat heterosexual and homosexual applicants the same. The plaintiffs asserted that the confusion about whether Memo 1-95 still applies discourages homosexual applicants. Further, such applicants were “subject to the whims of new employees coming in and out, even at the top level, as to whether they’re going to apply a policy that’s on the books, or whether they’re going to apply their predecessor’s policy, or how they’re going to treat gay and lesbian applicants.” The plaintiffs argued that the Pristow Procedure is itself discriminatory, because heterosexual applicants, even felons, are subjected to fewer tiers of review than homosexual appli- cants. Since the extra review is only of approvals and not rejections, the extra review cannot be to protect homosexual - 284 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 applicants from discrimination. The plaintiffs pointed out that the only possible change in the outcome for the applicant as a result of such review is that a homosexual applicant who was accepted in an earlier level of review is rejected “further up the chain.” In response to these arguments, the defendants acknowl- edged that Memo 1-95 had not been rescinded, but claimed that rescission was unnecessary. The defendants described Memo 1-95 as “nothing”; it was not DHHS’ policy or pro- cedure, was no longer on the DHHS website, and is not elsewhere “on the books.” The defendants asserted that the plaintiffs’ claims of confusion surrounding Memo 1-95 were speculative and, in any event, “confusion does not equal a con- stitutional violation.” With regard to the Pristow Procedure, the defendants did not deny that the procedure is still in place. But they argued that “equal protection does not require absolute equality” and that there was no discrimination, because the same best interests standard applied to both homosexual and heterosexual appli- cants. Further, the defendants argued that the extra levels of review were not directed at the homosexual applicants, but, rather, were a “mechanism for review of the employees and what they are doing within their placement determinations” in order “to prevent bias by the caseworkers.” Lastly, the defendants argued that nothing has prevented the plaintiffs from applying to be foster parents and that there was no remedy for the court to award. 5. District Court’s Order The court granted summary judgment in favor of the plain- tiffs. The court’s original order, dated August 5, 2015, was modified on September 16, following the court’s consideration of the defendants’ motion to alter or amend the judgment, filed August 17. Both the August 5 and the September 16 orders described the plaintiffs as making both a constitutional chal- lenge to Memo 1-95 and to the discriminatory process of the Pristow Procedure. - 285 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 The court rejected the defendants’ arguments that there is no longer a case and controversy concerning Memo 1-95 because it has not represented DHHS policy or practice since 2012. The court noted that at the time the lawsuit was filed, there was confusion within DHHS surrounding Memo 1-95 insofar as most of the employees deposed believed it to still be DHHS “policy.” And the court stated that although the Pristow Procedure may be the “current policy,” Memo 1-95 has not been formally rescinded or replaced. The court concluded that “DHHS cannot have two conflicting policies that reflect wholly incompatible interpretations of the same regulations.” It found that Memo 1-95 should be stricken in its entirety as in violation of equal protection and due process. The court likewise found that the Pristow Procedure violated equal protection and due process. It noted that the defendants had failed to identify any legitimate government interest to justify treating homosexual individuals and couples differ- ently from heterosexual individuals and couples. Further, the defendants had conceded that no child welfare interests are advanced by treating homosexual applicants differently from heterosexual applicants. It rejected the defendants’ argument that the five-tier approval process was to prevent bias against homosexual individuals and couples, explaining that “[i]f the Defendants wanted to prevent bias against gay and lesbian couples, Defendants would review denials of placements rather than approvals of placements.” The court ordered the defendants to “refrain from adopt- ing or applying policies, procedures, or review processes that treat gay and lesbian individuals and couples differently from similarly situated heterosexual individuals and couples when evaluating foster care or adoption applicants under the ‘best interests of the child’ standard set forth in DHHS’ regulations.” Both orders taxed costs of the action to the defendants. On August 7, 2015, the court granted the plaintiffs an exten- sion of the time to file a motion for attorney fees and costs, which was ultimately filed on October 16. The motion for attorney fees and costs was filed pursuant to 42 U.S.C. § 1988 - 286 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 (2012). The plaintiffs’ attorney filed with the district court 80 pages of affidavits and attached exhibits in support of the motion. Those documents are found in the transcript rather than in the bill of exceptions, because they were not offered as exhibits during a hearing. But a hearing was conducted in which the parties discussed the requested fees and costs. The defendants did not object to the documents supporting the requested fees on the grounds that they were not properly in evidence or otherwise unreliable. The court entered an order on December 15 awarding $28,849.25 in costs and $145,111.30 in attorney fees. III. ASSIGNMENTS OF ERROR The defendants assign that the district court erred by (1) receiving hearsay evidence, (2) granting summary judgment when there were genuine issues of fact, (3) granting summary judgment and issuing an injunction when the plaintiffs did not have standing, (4) deciding a case that was moot, and (5) awarding attorney fees. IV. STANDARD OF REVIEW [1] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.4 [2] When attorney fees are authorized, the trial court exer- cises its discretion in setting the amount of the fee, which ruling an appellate court will not disturb on appeal unless the court abused its discretion.5 V. ANALYSIS The defendants do not contest the underlying merits of the district court’s determination that Memo 1-95 and the Pristow 4 Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014). 5 State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016). - 287 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 Procedure violate equal protection and due process. Instead, the defendants assert there is a material issue of fact whether the plaintiffs’ claims were justiciable. The defendants assert that if the action was not justiciable, the plaintiffs could not be the prevailing parties under 42 U.S.C. § 1988. The defendants also claim the award of attorney fees was an abuse of discre- tion because the evidence of fees was not presented to the dis- trict court in the correct manner. 1. Justiciability [3] We first address whether there was a material issue of fact as to the justiciability of the plaintiffs’ claims. Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.6 In the summary judgment con- text, a fact is material only if it would affect the outcome of the case.7 [4,5] A justiciable issue requires a present, substantial con- troversy between parties having adverse legal interests suscep- tible to immediate resolution and capable of present judicial enforcement.8 A court decides real controversies and deter- mines rights actually controverted, and does not address or dispose of abstract questions or issues that might arise in a hypothetical or fictitious situation or setting.9 (a) Ripeness The defendants’ principle contention is that the plaintiffs lack standing because they have not yet applied for and been denied foster care licenses and placement of state wards in their care. The defendants argue that the plaintiffs thus have 6 Latzel v. Bartek, supra note 4. 7 Id. 8 In re Estate of Reading, 261 Neb. 897, 626 N.W.2d 595 (2001). 9 US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999). - 288 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 not been harmed. And they argue that if the plaintiffs are granted licenses and children are placed in their homes, then they never will be harmed. The defendants assert that the controversy presented by the plaintiffs’ action is, accordingly, purely hypothetical. [6,7] Standing is a key function in determining whether a justiciable controversy exists.10 Standing requires that a litigant have such a personal stake in the outcome of a con- troversy as to warrant invocation of a court’s jurisdiction and justify the exercise of the court’s remedial powers on the liti- gant’s behalf.11 But the defendants do not argue that the plaintiffs are assert- ing merely a general injury to the public. They do not argue that if the plaintiffs were to apply for licenses and be denied the ability to provide foster care, they would lack a personal stake in the outcome of the litigation. The defendants’ standing argument is more accurately considered one of ripeness. [8] The ripeness doctrine is rooted in the same general poli- cies of justiciability as standing and mootness.12 As compared to standing, ripeness assumes that an asserted injury is suf- ficient to support standing, but asks whether the injury is too contingent or remote to support present adjudication.13 It is a time dimension of standing.14 [9] We use a two-part inquiry to determine ripeness: (1) the jurisdictional question of the fitness of the issues for judicial decision and (2) the prudential question concerning the hard- ship to the parties of withholding court consideration.15 We follow the Eighth Circuit, which has explained that 10 Hall v. Progress Pig, Inc., 254 Neb. 150, 575 N.W.2d 369 (1998). 11 City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008). 12 13B Charles Alan Wright et al., Federal Practice and Procedure § 3532.1 (2008). 13 Id. 14 See id. 15 See City of Omaha v. City of Elkhorn, supra note 11. - 289 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 “[t]he ‘fitness for judicial decision’ inquiry goes to a court’s ability to visit an issue. . . . [I]t safeguards against judicial review of hypothetical or speculative disagree- ments. . . . “In addition to being fit for judicial resolution, an issue must be such that delayed review will result in significant harm. ‘Harm’ includes both the traditional concept of actual damages—pecuniary or otherwise—and also the heightened uncertainty and resulting behavior modifica- tion that may result from delayed resolution.”16 Declaratory and injunctive relief, which were sought here, require a justiciable controversy that is ripe for judicial deter- mination.17 Such actions cannot be used to obtain advisory opinions, adjudicating hypothetical or speculative situations that may never come to pass.18 [10] The question of ripeness is to be viewed in light of the relief sought. We have said that a “declaratory judg- ment is by definition forward-looking, for it provides ‘“pre- emptive justice” designed to relieve a party of uncertainty before the wrong has actually been committed or the damage suffered.’”19 We have explained that the function of a declara- tory judgment is to determine justiciable controversies which either are not yet ripe for adjudication by conventional forms of remedy or, for other reasons, are not conveniently ame- nable to the usual remedies.20 The purpose of an injunction, 16 Id. at 80, 752 N.W.2d at 145-46, quoting Nebraska Public Power Dist. v. MidAmerican Energy, 234 F.3d 1032 (2000). 17 See, Ryder Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994); 43A C.J.S. Injunctions § 76 (2014). 18 See, Greater Omaha Realty Co. v. City of Omaha, 258 Neb. 714, 605 N.W.2d 472 (2000); Ryder Truck Rental v. Rollins, supra note 17. See, also, Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166 (2002). 19 See, Hauserman v. Stadler, 251 Neb. 106, 110, 554 N.W.2d 798, 801 (1996); Ryder Truck Rental v. Rollins, supra note 17. 20 See id. See, also, e.g., Central City Ed. Assn. v. Merrick Cty. Sch. Dist., 280 Neb. 27, 783 N.W.2d 600 (2010). - 290 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 similarly, is to restrain actions that have not yet been taken.21 Injunctive relief is generally preventative, prohibitory, or protective.22 We reject the defendants’ contention that the harm at issue in this action is too remote or speculative to be ripe for the protective, forward-looking relief sought and obtained by the plaintiffs. Fundamentally, the defendants mischaracterize the harm the plaintiffs seek to prevent. The harm the plaintiffs wish to avoid is not just the possible, ultimate inability to foster state wards; it is the discriminatory stigma and unequal treatment that homosexual foster applicants and licensees must suffer if they wish to participate in the fos- ter care system. The imminent injury that the court redressed was the plaintiffs’ inability to be treated on equal footing with heterosexual applicants.23 [11] We find several U.S. Supreme Court cases instruc- tive on this issue. The U.S. Supreme Court has specifically rejected the argument that persons claiming denial of equal treatment must demonstrate their ultimate inability to obtain a benefit in order for their claims to be justiciable.24 As noted by the district court below, the Court has explained that the injury in an equal protection case is the imposition of a bar- rier that makes it more difficult for members of one group to obtain a benefit, rather than the ultimate inability to obtain the benefit.25 This proposition directly contradicts the defendants’ argument that the plaintiffs would suffer no harm unless they applied to be foster parents and were ultimately denied place- ment of state wards in their homes. 21 Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838 (1999). 22 Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, supra note 18. 23 See Revelis v. Napolitano, 844 F. Supp. 2d 915 (N.D. Ill. 2012). 24 Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 113 S. Ct. 2297, 124 L. Ed. 2d 586 (1993). 25 See id. - 291 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 [12] The U.S. Supreme Court has applied this proposition in the context of affirmative action bidding programs and school application processes, holding that a plaintiff has standing to make a claim challenging the inability to compete on an equal footing no matter whether the plaintiff would have been admitted to the school or obtained the winning bid but for that unequal treatment.26 The Court has held that when the govern- ment erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to chal- lenge the barrier need only demonstrate that he or she is ready and able to perform and that a discriminatory policy prevents him or her from doing so on an equal basis.27 In other cases, the Court has elaborated on the stigmatic injury that stems from discriminatory treatment. The Court has explained that the discriminatory treatment itself is a seri- ous harm that supports standing. In Heckler v. Mathews,28 for example, the Court addressed the plaintiff’s claim that Social Security laws subjected him to unequal benefits on the basis of gender. The Court found standing, despite the fact that a suc- cessful action would result in the plaintiff’s benefits remaining the same (while, due to the severability of the discriminatory provision, female applicants’ benefits would decrease).29 [13] The Court stated it had “repeatedly emphasized” that discrimination itself, by perpetuating “archaic and ster eotypic notions” or by stigmatizing members of the 26 See, Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville, supra note 24; University of California Regents v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978). 27 See Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville, supra note 24. 28 Heckler v. Mathews, 465 U.S. 728, 104 S. Ct. 1387, 79 L. Ed. 2d 646 (1984). See, also, Barber v. Bryant, 193 F. Supp. 3d 677 (S.D. Miss. 2016); Campaign for Southern Equality v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014). 29 Heckler v. Mathews, supra note 28. - 292 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 disfavored group as “innately inferior” and therefore as less worthy participants in the political community, . . . can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.30 The Court reiterated that when the right invoked is that of equal treatment, the appropriate remedy is a mandate of equal treatment.31 Similarly, in Allen v. Wright,32 the U.S. Supreme Court explained that for those persons who are personally sub- ject to discriminatory treatment, stigmatizing injury caused by discrimination is a serious noneconomic injury that is sufficient to support standing. As for the ripeness questions of whether this harm is too remote and whether delayed review will result in significant harm, the Court held in the bidding cases that the plaintiffs seeking to prevent future deprivation of the equal opportunity to compete need only demonstrate they will “sometime in the relatively near future” bid on a contract governed by such race- based financial incentives.33 [14] In a number of cases in other jurisdictions similar to the case at bar, courts have found plaintiffs to have standing in spite of the absence of any formal application under the challenged program or law.34 This is because standing does not 30 Id., 465 U.S. at 739-40 (citation omitted). 31 Heckler v. Mathews, supra note 28. 32 Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984), abrogated on other grounds, Lexmark Intern. v. Static Control, ___ U.S. ___, 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014). 33 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). 34 Dragovich v. U.S. Department of the Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011). See, also, Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S. Ct. 2485, 125 L. Ed. 2d 38 (1993); Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005); Terry v. Cook, 866 F.2d 373 (11th Cir. 1989); Waters v. Ricketts, 48 F. Supp. 3d 1271 (D. Neb. 2015). - 293 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 require exercises in futility.35 “Courts have long recognized circumstances in which a failure to apply may be overcome by facts which demonstrate the futility of such application.”36 In Teamsters v. United States,37 the U.S. Supreme Court explained that “[i]f an employer should announce his policy of discrimination by a sign reading ‘Whites Only’ on the hiring- office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs.” Thus, the Court rejected the argument that those who failed to apply for the position that discriminatory practices made it difficult to obtain could not share in the “make-whole relief” that was sought in the action.38 Rather, such plaintiffs must show that they should be treated as applicants, or “potential victim[s],” of the discrimination, by showing they were actu- ally deterred by the discriminatory practice and would have applied but for that practice.39 The Court explained that a plaintiff’s desire for a job need not be “translated into a formal application solely because of his unwillingness to engage in a futile gesture.”40 The nonap- plicant is unwilling to subject himself or herself to the humili- ation of certain rejection.41 Such a nonapplicant is as much a victim of discrimination as the applicant.42 Memo 1-95 was a published statement on DHHS’ official website that “heterosexuals only” need apply to be foster 35 Dragovich v. U.S. Department of the Treasury, supra note 34. See, also, e.g., LeClerc v. Webb, supra note 34; Terry v. Cook, supra note 34. 36 Terry v. Cook, supra note 34, 866 F.2d at 378. 37 Teamsters v. United States, supra note 34, 431 U.S. at 365. See, also, e.g., Reno v. Catholic Social Services, Inc., supra note 34. 38 Teamsters v. United States, supra note 34, 431 U.S. at 367. 39 Id. 40 Id., 431 U.S. at 366. 41 See Teamsters v. United States, supra note 34. 42 See id. - 294 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 parents. It is legally indistinguishable from a sign reading “Whites Only” on the hiring-office door. Memo 1-95 clearly excluded same-sex couples and individuals who identified as homosexuals either from being licensed or from having state wards placed in their homes. There is no dispute that all the plaintiffs were ready and able to be foster parents, were aware of and deterred by Memo 1-95, and would have taken further steps to become foster parents but for the bar- rier expressed in Memo 1-95. The plaintiffs considered any further action to be futile and did not wish to subject them- selves to the humiliation of rejection and the stigmatic harm of unequal treatment. There was a barrier to equal treatment and serious non- economic injuries that the plaintiffs would be imminently subjected to upon application to become foster parents. The plaintiffs could only ultimately foster children through an uncertain exception to the absolute ban set forth in Memo 1-95 or through a five-tier review procedure that subjected them to increased scrutiny because of their sexual orienta- tion. In either scenario, the plaintiffs would suffer stigmatic harm stemming from systematic unequal treatment. By seek- ing forward-looking relief, the plaintiffs wished to avoid suffering the discrimination inherent in Memo 1-95 and the Pristow Procedure. What is more, there is no dispute in the record that Todd and Joel actually began the process of applying by completing training, a home study, and background checks. After a sig- nificant delay in the progression of their case, they contacted the director as well as the chief executive officer of DHHS, who both either directly or indirectly confirmed the continu- ing force and effect of Memo 1-95. In addressing the by-then 3-year delay, Winterer relied repeatedly on Memo 1-95 and stated it was “still in force.” In an action where multiple plain- tiffs seek identical injunctive or declaratory relief, once the court determines that one of the plaintiffs has standing, it need - 295 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 not decide the standing of the others in order to determine that the action is justiciable.43 For if one plaintiff prevails on the merits, the same prospective relief will issue regardless of the standing of the other plaintiffs.44 Clearly, Todd and Joel did not need to subject themselves to even more personal rebuffs in order to demonstrate their personal stake in this action and the ripeness of their claim. We agree with the district court that the controversy raised by the plaintiffs is neither hypothetical nor speculative by vir- tue of the fact that the plaintiffs have not yet applied for and been denied foster care licenses and placement of state wards in their homes. And we agree with the district court that the harm at issue is appropriate for the preemptive justice that declara- tory and injunctive relief provide. The plaintiffs were faced with the unavoidable inability to be treated on equal footing if they wished to pursue being foster parents, and the district court’s order effected an immediate resolution of that imminent and serious harm. We find no merit to the defendants’ narrow view that the action presented a hypothetical harm because the plaintiffs have not shown an ultimate inability to become foster parents. 43 Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006); Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012); New Jersey Physicians, Inc. v. President of U.S., 653 F.3d 234 (3d Cir. 2011); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993 (11th Cir. 2004); Save Our Heritage, Inc. v. F.A.A., 269 F.3d 49 (1st Cir. 2001); Mountain States Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996); Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995); Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012); MacPherson v. DAS, 340 Or. 117, 130 P.3d 308 (2006); Cohen v. Zoning Bd. of Appeals, 35 Mass. App. 619, 624 N.E.2d 119 (1993). See, also, e.g., Joan Steinman, The Effects of Case Consolidation on the Procedural Rights of Litigants: What They Are, What They Might Be Part 1: Justiciability and Jurisdiction (Original and Appellate), 42 U.C.L.A. L. Rev. 717 (1995). 44 Patel v. Dept. of Licensing and Regulation, 469 S.W.3d 69 (Tex. 2015). - 296 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 (b) Mootness [15] The defendants alternatively claim the plaintiffs lacked a justiciable claim, because Memo 1-95 no longer represented official DHHS policy or practice by the time the plaintiffs filed this action. In order to maintain an action to enforce private rights, the plaintiff must show that he or she will be benefited by the relief to be granted.45 An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cog- nizable interest in the outcome of the action.46 At the latest, the defendants believe that any issue concerning Memo 1-95 became moot in February 2015, when Memo 1-95 was taken off the DHHS website during the pendency of the parties’ motions for summary judgment. This list of memorandums was designed to be viewed by the public, and new DHHS employees were directed to familiarize themselves with DHHS policy by looking at the memorandums on the website. As late as November 2011, DHHS officials with the authority to declare DHHS policy and procedure represented to same-sex couples that Memo 1-95 was still in force. The continuing presence of Memo 1-95 on the DHHS website at the time this action was filed affirmed these representations. Pristow intentionally avoided formal rescission of Memo 1-95 and, in fact, avoided creating anything in writing dis- avowing it or stating a policy or practice different from that articulated in Memo 1-95. The Pristow Procedure was strictly verbal, and DHHS employees were told about the Pristow Procedure only if and when they were confronted with homo- sexual applicants. Pristow deliberately kept Memo 1-95 on the DHHS website, and the Pristow Procedure was never 45 Id. 46 See Mullendore v. Nuernberger, 230 Neb. 921, 434 N.W.2d 511 (1989). - 297 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 communicated to the public. In fact, it can be surmised that the plaintiffs did not learn of the Pristow Procedure until dis- covery conducted during the current lawsuit. [16] If a discriminatory policy is openly declared, then it is unnecessary for a plaintiff to demonstrate it is followed in order to obtain injunctive or declaratory relief.47 We thus find immaterial any dispute in the record as to whether the Pristow Procedure was a policy versus a practice, whether it “replaced” Memo 1-95, or the level of confusion within DHHS and its contractors concerning DHHS’ policy and prac- tice when this action was filed. A secret change in policy or procedure cannot moot an action based on a published policy statement that has been cited by the agency as excluding the plaintiffs from eligibility. Memo 1-95 was deliberately maintained on the website in order to give the public the impression that it represented official DHHS policy. The defendants cannot now complain that the plaintiffs believed it so, were deterred by the discrimi- natory exclusion set forth so clearly therein, and brought this action to challenge it. [17,18] As for DHHS’ eleventh-hour removal of Memo 1-95 from its website, it is well recognized that “a defendant cannot automatically moot a case simply by ending its unlaw- ful conduct once sued.”48 If voluntary cessation of that kind rendered a case moot, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”49 “‘[A] defendant claiming that its vol- untary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful 47 See U.S. v. Bd. of Educ. of School D. of Philadelphia, 911 F.2d 882 (3d Cir. 1990). 48 Already, LLC v. Nike, Inc., ___ U.S. ___, 133 S. Ct. 721, 727, 184 L. Ed. 2d 553 (2013). 49 Id. - 298 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 behavior could not reasonably be expected to recur.’”50 This standard is “stringent.”51 The defendants made no attempt to meet this standard. Finally, we note that any argument that the plaintiffs’ action is moot because the Pristow Procedure superseded Memo 1-95 ignores the fact that the Pristow Procedure itself was chal- lenged in this action and was encompassed by the injunctive and declaratory relief granted by the district court’s order. The defendants make no argument that the five-tier Pristow Procedure is no longer in effect or that the plaintiffs’ action with regard to the Pristow Procedure is otherwise nonjus- ticiable. In their brief, the defendants make no arguments concerning the Pristow Procedure other than to assert that it superseded Memo 1-95. [19] The defendants mentioned at oral arguments that the Pristow Procedure was not specifically alleged in the plaintiffs’ complaint. Thus, they believed that if they could show that the Pristow Procedure replaced Memo 1-95, there was no action. But this court’s consideration of a cause on appeal is limited to errors assigned and discussed.52 The defendants assigned neither error below nor on appeal asserting that the Pristow Procedure was beyond the scope of the pleadings or that they lacked timely notice of the Pristow Procedure’s being at issue in the case. To the contrary, the plaintiffs argued to the district court that the Pristow Procedure was unconstitutionally dis- criminatory, and the defendants argued that it was not. The plaintiffs, having no apparent way of knowing about the Pristow Procedure before filing their action, alleged as the operative fact in their complaint the discriminatory exclu- sion articulated in Memo 1-95. The defendants raised the 50 Id. (quoting Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)). 51 Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., supra note 50, 528 U.S. at 189. 52 See, Neb. Rev. Stat. § 25-1919 (Reissue 2016); In re Estate of Balvin, 295 Neb. 346, 888 N.W.2d 499 (2016). - 299 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 Pristow Procedure in the hearing on the motions for summary judgment in the hope of mooting the plaintiffs’ claim. The defendants also hoped that a discriminatory process allowing for the possibility of fostering a child was somehow consti- tutional even if the absolute prohibition of Memo 1-95 was not. Finally, the defendants argued that the ultimate possibil- ity of fostering inherent to the Pristow Procedure meant that the plaintiffs could demonstrate no imminent harm—an argu- ment that, if accepted, could have left unequal scrutiny of the Pristow Procedure immune from challenge. At the same time that the defendants relied so heavily on the Pristow Procedure for their defense, they remained silent as to the clearly expanded scope of the operative facts at issue in the plaintiffs’ action. While, in general, we caution plaintiffs to amend their pleadings when discovery reveals new operative facts, the defendants’ maneuverings here are unavailing. We will not reverse the district court’s judgment on the ground that the Pristow Procedure superseded Memo 1-95. Memo 1-95 was openly declared, and DHHS chose not to inform the public that it was no longer followed. Neither did DHHS moot the plaintiffs’ case through its voluntary removal of Memo 1-95 from the website following the motions for summary judgment. And, regardless of the status of Memo 1-95, the plaintiffs were the prevailing parties with regard to the discriminatory nature of the Pristow Procedure. 2. Attorney Fees Beyond the defendants’ arguments attacking the justiciabil- ity of the plaintiffs’ underlying claims, with the ultimate goal of preventing the plaintiffs from being the prevailing parties for purposes of attorney fees, the defendants assert that there was insufficient evidence of attorney fees. The defendants make this argument solely on the ground that the evidence of attorney fees was filed with the clerk of the district court and is found only in the transcript. Evidence of attorney fees was not entered into evidence as exhibits and that evidence is not, therefore, found in the bill of exceptions. - 300 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 The attorney fees in this case were awarded pursuant to 42 U.S.C. § 1988. Section 1988(b) states in relevant part that “[i]n any action or proceeding to enforce a provision of [§] 1983, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .” We have said that affidavits included in the transcript, but not received as evidence and appearing in the bill of exceptions, cannot be considered on appeal by the appellate court.53 Such affidavits must be “preserved” for appellate review in the bill of excep- tions.54 We have explained that offering of a bill of exceptions is necessary at some point if the appellate court is to consider errors assigned by the appellant which require a review of the evidence that was received by the tribunal from which the appeal is taken.55 But the defendants are the appellants in this case; they wish us to consider their assignment of error that the lower court abused its discretion in awarding attorney fees. Generally, in determining whether there is merit to an appellant’s claim that the lower court’s judgment should be reversed, it will be presumed in the absence of a bill of exceptions that issues of fact presented by the pleadings were established by the evidence.56 True, where an appellant argues on appeal that the evidence is insufficient on a point for which an appellee bore the bur- den of proof, we will not simply presume there was evidence before the lower court, which we have no evidence of despite the filing of a bill of exceptions.57 But we have never held 53 See, State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006); State v. Allen, 159 Neb. 314, 66 N.W.2d 830 (1954). 54 State v. Allen, supra note 53, 159 Neb. at 321, 66 N.W.2d at 835. 55 See Marcotte v. City of Omaha, 196 Neb. 217, 241 N.W.2d 838 (1976). 56 See, State v. Allen, supra note 53; McMillan v. Diamond, 77 Neb. 671, 110 N.W. 542 (1906). 57 See, e.g., Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). - 301 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 that an appellant may successfully assert that the evidence was insufficient to support a lower court’s order when the record on appeal affirmatively demonstrates that sufficient evidence was considered by the lower court, with notice to and without objection by the appellant, but that such evidence was received through filing with the clerk of the court rather than at a hear- ing wherein it became part of the bill of exceptions. To the contrary, in Zwink v. Ahlman,58 we expressly rejected the appellants’ contention that the lower court’s judgment was not sustained by the evidence because the necessary evidence was attached to the petition and placed in the transcript, but was not entered as an exhibit to be found in the bill of excep- tions. We observed that the journal of the trial court showed that the evidence in question was considered and that no specific objection was raised on the ground that the evidence was not formally admitted.59 We concluded that under such circumstances, the evidence was to be considered as if made a part of the bill of exceptions.60 We explained that it would be repugnant to the general rules of equity governing the underlying action to dismiss the proceeding because the evidence was “not formally intro- duced in evidence when the transcript shows they were duly filed and the judgment of the trial court shows [the evidence was] considered by it.”61 Furthermore, to remand the cause for retrial because the evidence was not formally introduced when the evidence was before us in the transcript and was considered by the trial court, “would appear a circuitous and useless procedure if a proper decision is possible by consid- ering them as evidence along with the bill of exceptions at this time.”62 58 Zwink v. Ahlman, 177 Neb. 15, 128 N.W.2d 121 (1964). 59 See id. 60 Id. 61 Id. at 19-20, 128 N.W.2d at 124. 62 Id. at 20, 128 N.W.2d at 124-25. - 302 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 Similarly, in Nimmer v. Nimmer,63 we affirmed an award of attorney fees despite the fact that the evidence of those fees was found only as an itemized list of services rendered, attached to the application for fees, and not in the bill of exceptions. We observed that it was clear that there was a hearing on the fees, but no bill of exceptions was created for that hearing. And in Chilen v. Commercial Casualty Ins. Co.,64 we affirmed the award of attorney fees despite the fact that the evidence of such fees, though apparently presented at the hear- ing, was not embodied in the bill of exceptions. The appellant was the party opposing the fees, and we found that with no bill of exceptions, the pleadings were sufficient to support the judgment awarding the fees.65 The defendants’ only argument that there was insufficient evidence to support the lower court’s award of fees is that the evidence of those fees is found in the transcript rather than in the bill of exceptions. However, the appellate record is clear that extensive evidence supporting attorney fees was filed with the clerk of the district court, examined by the district court, and addressed by both parties during the hearing on fees and costs. The defendants did not raise at this hearing any issue regarding the method by which the evidence was brought before the court. They did not raise any objection to the fees other than to assert that they were excessive. The district court clearly found the exhibits adequate and reduced the amount of its award in light of the defendants’ arguments, made upon examination of the evidence found in the transcript. These facts are clearly distinguishable from Lomack v. Kohl- Watts,66 a case relied upon by the defendants. In Lomack, it was the appellant who assigned as error the denial of fees below. 63 Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979). 64 Chilen v. Commercial Casualty Ins. Co., 135 Neb. 619, 283 N.W. 366 (1939). 65 Id. 66 Lomack v. Kohl-Watts, 13 Neb. App. 14, 688 N.W.2d 365 (2004). - 303 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports STEWART v. HEINEMAN Cite as 296 Neb. 262 And there was no indication in the appellate record that the evidence of attorney fees, found only in the transcript, was actually filed with the clerk of the lower court. Neither was there any evidence that the opposing party had notice of the evidence and an opportunity to object to it, or that such evi- dence was considered by the lower court in making its deter- mination regarding fees. [20] On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion.67 Upon the record before us, we cannot conclude that the district court abused its discretion in awarding costs and attorney fees to the plaintiffs. 3. Hearsay We do not need to address the defendants’ assignment of error relating to the admission in evidence of several news paper articles. The defendants assert these articles were inad- missible hearsay. These articles played no role in our determi- nation that the underlying action was justiciable. VI. CONCLUSION We find no merit to the defendants’ claims that the underly- ing action was not justiciable. Nor do we find any merit to the defendants’ claims that the district court abused its discretion in awarding costs and attorney fees, simply because the evi- dence of those fees is found in the appellate transcript rather than in the bill of exceptions. We find no merit to the defend ants’ assignments of error; therefore, we affirm the judgment of the district court. A ffirmed. 67 Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016).	{ "pile_set_name": "FreeLaw" }
200 N.W.2d 542 (1972) Gerald L. BLACKMAN and Judy Ann Blackman, Appellees, v. Laurence C. FOLSOM, and Opal C. Folsom, Appellants. No. 132. Supreme Court of Iowa. September 19, 1972. Kindig, Beebe, McCluhan, Rawlings & Carter, Sioux City, for appellants. Prichard & Prichard, Onawa, for appellees. LeGRAND, Justice. This litigation involves the reformation of a written contract by which defendants sold to plaintiffs a business known as "Opal's Beauty Salon" together with all fixtures, equipment, and good will. Prior to the sale this business had been operated for some time by Opal C. Folsom, one of the defendants. Approximately four years after the sale she opened a new beauty shop near the one sold to plaintiffs, who assert this violated defendants' agreement not to compete. The written contract of sale contained no restriction against competition, but plaintiffs contend it had been omitted by mutual mistake. They brought this action in equity to reform the contract to include the no-competition clause. The trial court found for plaintiffs and ordered the contract reformed to include this provision: "Defendants shall not compete with plaintiffs as owners, operators or beauticians in a beauty shop within 30 miles from Onawa, Iowa, for a period of 10 years from April 1, 1966." Defendants appeal and we affirm the trial court. Agreements not to compete and those imposing restrictions on the circumstances under which one may work are in restraint of trade. As such, they are strictly construed against the one seeking to restrain another from pursuing his profession, *543 business or employment. Usually the paramount issues in these disputes are the reasonableness of the restriction and the circumstances under which relief should be granted. See Kunz v. Bock, 163 N.W.2d 442, 446, 447 (Iowa 1968); Baker v. Starkey, 259 Iowa 480, 489, 144 N.W.2d 889, 894 (1966); Cogley Clinic v. Martini, 253 Iowa 541, 546, 112 N.W.2d 678, 681 (1962); Federated Mutual Implement and Hardware Insurance Co. v. Erickson, 252 Iowa 1208, 1213, 110 N.W.2d 264, 267 (1961). However, as this appeal comes to us, we need not concern ourselves with these matters. Defendants urge only one proposition for reversalerror in considering the testimony of plaintiffs that there was an oral agreement not to compete. They argue this was in violation of the parol evidence rule. We consider the appeal solely on this narrow issue. Plaintiffs' petition asserted the provision not to compete was omitted from the contract by mutual mistake of the parties. They testified they "thought" it was in the signed agreement. They further stated flatly they would not have signed the contract had they realized the clause was not included. No claim is made that plaintiffs are estopped by their own negligence in failing to ascertain the contents of the contract before signing. See Akkerman v. Gersema, 260 Iowa 432, 441, 149 N.W.2d 856, 861 (1967). The attorney who drew the contract was uncertain concerning the matters in dispute. He recalled there was "some discussion" about a no-competition agreement. However, he was unable to say whether the parties instructed him to include such a provision in the contract. Neither defendant testified; nor did they produce other evidence to refute plaintiffs' claim. Plaintiffs must stand or fall on their own testimony of an agreement not to compete whichaccording to themwas to be a part of the written contract ultimately signed. They rely on the equitable doctrine of mutual mistake of fact, which, if shown by clear and satisfactory evidence, permits reformation of a contract to reflect the actual agreement of the parties. Akkerman v. Gersema, supra, 260 Iowa at 438, 149 N.W.2d at 859. As already noted, defendants do not challenge this rule nor do they dispute the sufficiency of the evidence here to establish it by the required quantum of proof. They say only that plaintiffs' testimony may not be considered because it violates the parol evidence rule. We hold, as did the trial court, parol evidence is admissible in an equitable action for reformation of a contract to establish fraud or mistake. In the absence of such a salutary exception to the parol evidence rule, it would be virtually impossible to establish the grounds relied on. 45 Am.Jur., Reformation of Instruments, section 113, page 650; 3 Corbin on Contracts, section 580, page 431, 437; Restatement, Contracts, section 238, page 333-334; 13 Williston on Contracts (Third Ed.Jaeger), section 1552, page 210; Reed v. Harvey, 253 Iowa 10, 22, 110 N.W.2d 442, 449 (1961); Schmidt v. Schurke, 238 Iowa 121, 124, 25 N.W.2d 876, 878 (1947); Olsen v. Olsen, 236 Iowa 313, 317, 18 N.W.2d 602, 604 (1945). Cf. Gordon v. Witthauer, 258 Iowa 617, 138 N.W.2d 918 (1965). We hold the testimony of plaintiffs was properly admitted and considered in determining whether the contract should be reformed because of mutual mistake of fact. The judgment is therefore affirmed. Affirmed. All Justices concur, except RAWLINGS, J., who takes no part.	{ "pile_set_name": "FreeLaw" }
160 B.R. 249 (1993) In the Matter of Clarence B. ROGERS, Jr., Debtor. Clarence B. ROGERS, Jr., as Debtor-in-Possession, Plaintiff, v. ALLIED MEDIA, INC., Defendant. Bankruptcy No. A92-76275-WHD, Adv. No. 93-6336A. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. October 4, 1993. 250 251 William Russell Patterson, Jr., Ragsdale, Beals, Hooper & Seigler, Atlanta, GA, for plaintiff. A. Whitney R. Given, Epstein Becker & Green, P.C., Boston, MA, for defendant. ORDER W. HOMER DRAKE, Jr., Bankruptcy Judge. This matter comes before the Court on the Motion for Entry of Default Judgment, filed on July 20, 1993, by Clarence B. Rogers, Jr., (hereinafter "Plaintiff"), and the Motion to Remove Default, filed on August 20, 1993, by Allied Media, Inc. (hereinafter "Defendant"). The matters involved herein arise in an adversary proceeding commenced by the Plaintiff to compel the turnover of property to the estate, a core proceeding over which the Court has jurisdiction. 28 U.S.C. § 157(b)(2)(E). The Court will base its decision upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT On May 27, 1993, the Plaintiff, as Debtor-in-Possession, filed a Complaint to Compel Turnover of Property to the Estate, alleging that the Defendant is indebted to the Plaintiff in the principal sum of $19,508.89, plus interest. This debt, according to the Plaintiff, is property of the estate and subject to an order for turnover. Furthermore, the Complaint alleged that the Plaintiff is entitled to recover expenses, including reasonable attorneys' fees, due to the Defendant's bad faith and stubbornness in the underlying controversy. On the day this proceeding was commenced, the Plaintiff served by first class mail the Complaint, Summons, and Order and Notice on Roger C. Amato, the Defendant's Chief Executive Officer, at Woodstock, Vermont, and to Jarvis P. Kellogg, counsel for Defendant, in Boston, Massachusetts. Pursuant to the Summons, the Defendant had thirty days to answer or otherwise submit a response to the Complaint. The Defendant requested and received from the Plaintiff an extension to file its response up to and including July 7, 1993. Nevertheless, no answer was forthcoming, so the Plaintiff filed his Motion for Entry of Default Judgment on July 20, 1993. Ten days later, an Entry of Default was recorded by the Clerk of the Bankruptcy Court. The Defendant eventually filed its Answer accompanied by its Motion to Remove Default on August 20, 1993. As grounds for relief, the Defendant argues as follows: Defendant was attempting to resolve this dispute when this action was unexpectedly brought. Defendant, which is based in Vermont, was then required to engage counsel admitted in the State of Georgia and to apprise counsel of the facts of this matter. Defendant's Answer to Plaintiff's Complaint has been submitted herewith for filing with the Court. The Court should allow this Motion to Remove Default since the Plaintiff will not be prejudiced thereby. Defendant's Motion at 1 (Aug. 19, 1993). For these reasons, the Defendant requests that the default be removed. CONCLUSIONS OF LAW The grounds for setting aside an entry of default are set forth in the Federal Rules of Civil Procedure, which specifically provide as follows: For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). Fed.R.Civ.P. 55(c) (applicable to bankruptcy under Fed.R.Bankr.P. 7055) (emphasis added). The Court notes that this Rule sets out 252 two different standards to apply in two separate situations. The "good cause" standard applies to requests to set aside a default entered by the clerk of court, while the Rule 60(b) standard applies to motions to set aside an actual judgment of default entered by a court. The distinction is important since the "good cause" standard is less stringent than the one found in Rule 60(b). EEOC v. Mike Smith Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir.1990); Atlanta Gas Light Co. v. Semaphore Advertising, Inc., 747 F.Supp. 715, 718 (S.D.Ga.1990); Rasmussen v. W.E. Hutton & Co., 68 F.R.D. 231, 233 (N.D.Ga. 1975). The Defendant's Motion currently before the Court is one for removal of the entry of default, and not one to set aside a default judgment. Accordingly, the Court will apply the less stringent "good cause" standard in order to decide whether to grant this request. In determining whether or not good cause exists to set aside an entry of default, courts generally consider the following four factors: (1) whether the defaulting party has acted promptly to vacate the default; (2) whether the defaulting party has presented a plausible excuse explaining the reasons for the default; (3) whether the defaulting party asserts a meritorious defense; and (4) whether the nondefaulting party will be prejudiced by setting aside the default. Turner Broadcasting System, Inc. v. Sanyo Elec., Inc., 33 B.R. 996, 1001 (N.D.Ga.1983), aff'd, 742 F.2d 1465 (11th Cir.1984); see also Ochoa v. Principal Mut. Ins. Co., 144 F.R.D. 418, 420 (N.D.Ga.1992); 9 Collier on Bankruptcy ¶ 7055.05, at 7055-9 (15th ed. 1993) (discussing Turner Broadcasting). Nevertheless, a decision should not be based upon a mechanical application of these principles, Rasmussen, 68 F.R.D. at 233, because a court has much discretion to grant a request to remove the entry of default in view of the circumstances surrounding the case. O'Brien v. R.J. O'Brien & Assocs., 998 F.2d 1394, 1397-98 (7th Cir.1993); Men's Sportswear, Inc. v. Sasson Jeans, Inc. (In re Men's Sportswear, Inc.), 834 F.2d 1134, 1138 (2d Cir.1987); Atlanta Gas Light, 747 F.Supp. at 718; Walter E. Heller Western, Inc. v. Seaport Enter., Inc., 99 F.R.D. 36, 37 (D.Or. 1983). In addition, a court should keep in mind the strong policy consideration of adjudicating cases on their merits, and judgments by default generally are not favored. Ochoa, 144 F.R.D. at 420; Rasmussen, 68 F.R.D. at 233; 9 Collier at 7055-9. A. Prompt Action to Vacate Default The first factor the Court will consider is whether the Defendant has acted promptly in vacating this entry of default. So long as the Defendant has made the request within a reasonable time after the default, its motion merits further consideration. Atlanta Gas Light, 747 F.Supp. at 718. In the proceeding currently before the Court, the Plaintiff filed his request for entry of default, and the Clerk of Court complied on July 30, 1993. The Defendant finally acted to set aside the default by filing its Motion on August 20, 1993, exactly three weeks later. The question for the Court remains, however, whether this three week delay was reasonable. See, e.g., Mike Smith Pontiac, 896 F.2d at 529 (default not set aside where defendant delayed almost four months in bringing motion); Turner Broadcasting, 33 B.R. at 1001-02 (delay of over four months not reasonable); Walter E. Heller, 99 F.R.D. at 37 (response "very soon" after entry of default was reasonable); United States v. Topeka Livestock Auction, Inc., 392 F.Supp. 944, 951 (N.D.Ind.1975) (unreasonable delay of almost a month); Consolidated Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249, 251 (4th Cir.1967) (two and one half month lapse not reasonable promptness). In view of the less stringent standard to be used in cases requesting the removal of default, the Court finds that the passing of less than one month from the time of entry of default to the time of the filing of the Motion is not per se unreasonable. The Plaintiff has argued in his Brief in opposition to the Motion that the Defendant has not acted promptly to vacate the entry of default. Since the Motion for entry of default was made on July 20, 1993, the Defendant was required to respond within ten days according to the Local Rules of 253 this district. See LR 220-1(b)(1) (N.D.Ga. 1993) (applicable to bankruptcy under BLR 705-2 (Bankr.N.D.Ga.1993)). The Defendant's response came outside this ten day limit, so the Plaintiff contends its response to the default could not be characterized as prompt. The Court finds this position to be without merit, since Rule 55(c) sets the applicable standard, not the Local Rules. To determine whether a response is prompt and within a reasonable time, the Court looks to the date of the entry of default and not the date the Motion for default was filed. Nevertheless, promptness in response alone is not enough to set aside a default as the Defendant must make a further showing of good cause to excuse its failure to timely answer the Complaint. See In re State Exchange Fin. Co., 896 F.2d 1104, 1106 (7th Cir.1990). Therefore, the Court will consider the remaining three factors. B. Plausible Excuse for Default The second factor to consider on this Motion to set aside the entry of default is whether the defaulting party has presented a plausible excuse explaining the reasons for default, a factor that takes into account possible culpable conduct of a defendant. The Complaint was filed in this Court on May 27, 1993, and the thirty day period for the Defendant to respond expired on or about June 28, 1993. The Answer actually filed by the Defendant came on August 20, 1993, almost three months after this proceeding was commenced, and almost two months after the time for filing a response expired. The Defendant, however, has presented two reasons why the Court should excuse its delay in not responding to the Complaint within the required thirty days: (1) the action was brought unexpectedly while the parties were attempting to resolve the dispute, and (2) being based in Vermont, the Defendant had to find counsel admitted to practice in the State of Georgia. See Defendant's Motion at 1 (Aug. 19, 1993). The Court finds the first reason asserted by the Defendant to be without merit. The mere fact that the parties to this action may have been involved in negotiations at the time the proceeding was commenced is not a sufficient justification for failing to respond to the Complaint in a timely manner. Topeka Livestock, 392 F.Supp. at 950-51. Furthermore, the fact a party unexpectedly becomes the defendant to a legal action is hardly an unusual circumstance. Since many defendants normally are caught by surprise at the commencement of a legal proceeding, they are given a generous thirty day time period in which to formulate a response. Merely being involved in an unexpected law suit does not justify the party delaying almost three months before filing an answer. Moreover, the Court has doubts about whether the Defendant really was caught by surprise when this proceeding was commenced. Specifically, in a letter dated April 8, 1993, the threat of legal action was made by the Plaintiff if the Defendant failed to satisfy the debt in controversy. See Complaint, Exhibit A (May 27, 1993). Based upon this evidence, the Court finds that the Defendant was on notice of a possible law suit and that it hardly could have been surprised when the Plaintiff actually commenced this proceeding. The second reason the Defendant asserts to justify its delay is equally unconvincing. It is not an unusual situation when a party becomes a defendant to an action commenced in another state. The Court does empathize with the Defendant on the fact that it is located in a state over a thousand miles away from this forum. Nevertheless, the thirty day period in which to respond to the Complaint was more than enough time for it to locate and engage counsel admitted to practice in the State of Georgia.[1] The fact the Defendant is located in Vermont is no excuse for waiting almost three months before filing an answer. The Court notes that the Defendant does not deny that it received the Complaint and Summons when it was served at the time the Plaintiff commenced this proceeding. Therefore, it must be assumed that the Defendant had full knowledge of the Court's 254 thirty day requirement from the beginning, but chose to ignore it. Such culpable conduct is evidence of a willful disregard of court rules, a reason for refusing to remove default. See Ochoa, 144 F.R.D. at 420. Being fully aware of this legal action from its inception, it was incumbent upon the Defendant to respond in a timely manner. As one court has stated, [u]pon proper notification of pending action parties must respond diligently, or face the concededly harsh consequences of a judgment resulting not from consideration of the merits, but from the parties' own inaction. FDIC v. Francisco Inv. Corp., 873 F.2d 474, 478 (1st Cir.1989) (emphasis added); see also O'Brien, 998 F.2d at 1402-03 (refusing to remove default and noting that defendant had actual notice of proceeding by actually being served). The reasons presented by the Defendant do nothing to relieve it of the responsibility to act diligently and to respect the requirement to respond in a timely fashion. Giving credence to the reasons the Defendant asserts to excuse the default "would weaken the integrity of the rules, which are to `be construed to secure the just, speedy, and inexpensive determination of every action'." Mike Smith Pontiac, 896 F.2d at 529 (quoting Fed.R.Civ.P. 1). Therefore, the mere facts that the suit caught the Defendant by surprise and that it needed to locate counsel admitted to practice in this State are inadequate to explain the reasons for the default. By itself, however, a failure to explain the reason for default is not always sufficient to deny a request to set it aside, so the Court will consider the two remaining factors. C. Meritorious Defenses A third factor for the Court to consider is whether the Defendant has asserted a meritorious defense to this proceeding. In addressing this issue, one court has stated: It is well settled that general denials and conclusive statements are insufficient to establish a meritorious defense; the movant must present a factual basis for its claim. Turner Broadcasting, 33 B.R. at 1002 (emphasis added); see also Topeka Livestock, 392 F.Supp. at 951 (noting that it is "absolutely essential" that defendant "claim with specificity" meritorious defenses); Consolidated Masonry, 383 F.2d at 251-51 (defendant failed to present facts to allow court to evaluate merits of defense). Therefore, the defendant must do more than just merely allege that it has a defense to this action. In contrast to the customary response to a complaint, there exists a higher burden of proof to establish a meritorious defense in a motion to remove an entry of default. While a mere denial may suffice in an answer, the defendant must go beyond a mere denial and present more evidence at this stage of the proceeding to justify setting aside the default. In the proceeding currently before the Court, the Defendant has submitted its Answer along with its Motion to set aside the default. It appears that the main defense of the Defendant is that the amount claimed by the Plaintiff is not currently due and owing. Nevertheless, the Defendant does not present any of its own evidence to support this defense and the Answer contains only general denials and conclusive statements which, as noted above, are insufficient to demonstrate a meritorious defense. The Defendant does refer to Exhibit B of the Complaint, however, as evidence that its promise and ability to pay has been predicated upon the Defendant's completion of certain transactions.[2] This evidence is only relevant to the question of the ability of the Defendant to satisfy the Plaintiff's claim, but it does not go to the underlying issue of whether it is actually obligated to pay it.[3] In fact, in its 255 Answer, the Defendant admits that it owes the Plaintiff $19,508.89. See Answer at ¶ 5. Therefore, the Court finds that the Defendant has failed to establish in this Motion that it has a meritorious defense against the Plaintiff's claim. D. Prejudice to Nondefaulting Party The final factor for the Court to consider on this Motion is whether the Plaintiff, as the nondefaulting party, would be prejudiced if the entry of default were set aside. As a general proposition, a mere delay in the ultimate resolution of the issues on the merits does not constitute prejudice to a plaintiff. Francisco Inv. Corp., 873 F.2d at 479; United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir. 1983). When the defendant has failed to present a meritorious defense, however, the threat of prejudice is much greater. Specifically, where it is clear that no meritorious defense exists, the delay in vindicating the plaintiff's rights amounts to an undue prejudice. . . . [T]he expense a plaintiff incurs in prosecuting a suit in which the defendant has defaulted and presented no meritorious defense, unduly prejudices the plaintiff. Turner Broadcasting, 33 B.R. at 1003 (citation omitted). As previously discussed, the Defendant in this proceeding has failed to present any meritorious defenses. In fact, it has admitted in its Answer that it indeed does owe the Plaintiff the amount asserted in the Complaint. Removing the entry of default would delay the vindication of the Plaintiffs rights and would force him to incur the expense of prosecuting a suit in which there exists no meritorious defense. Therefore, the Court concludes that removing the entry of default would unduly prejudice the Plaintiff. E. Summary In view of the discussion of the above factors and the circumstances surrounding this proceeding, the Court finds that the Defendant has failed to show good cause to remove the entry of default. Despite acting promptly to vacate the default, the Defendant has failed to present a plausible excuse explaining the reason for the default and has failed to assert a meritorious defense. Moreover, the Plaintiff will be prejudiced in having to prosecute this action in which no meritorious defense exists. In reaching this conclusion, the Court is particularly swayed by the fact the Defendant waited almost three months to answer the Complaint, despite having knowledge of this proceeding from its inception. Moreover, the fact the Defendant admits in its Answer that it owes the amount sought in the Complaint makes it difficult to find that good cause exists for setting aside the entry of default. In making this decision, the Court is not ignoring the strong policy consideration favoring adjudication of cases on the merits. In fact, the Court strongly agrees that it is much more desirable to address the issues of a proceeding instead of disposing of them on a procedural matter. Nevertheless, this policy is susceptible to strong countervailing considerations. The procedural aspects of a Rule 55 default serve an important purpose in the operation of the federal court system. As one authority has stated, [b]oth the default entry and judgment play an important role in the maintenance of an orderly, efficient judicial system. They are significant weapons for enforcing compliance with the rules of procedure and therefore facilitate the speedy determination of litigation. The default procedure offers a useful remedy to a good faith litigant who is confronted by an obstructionist adversary. It also represents a means of encouraging an unwilling or uncooperative party to honor the rules established for litigation in the federal courts and provides the nondefaulting party an expeditious path to follow when his adversary does not do so or simply abandons the contest. But if default is to be an effective sanction, relief under Rule 55(c) cannot be granted too readily. Atlanta Gas Light, 747 F.Supp. at 718 (emphasis added) (quoting Wright, Miller & *256 Kane, Federal Practice and Procedure: Civil 2d § 2693). The Court agrees with the above statement and will not readily grant the Rule 55(c) relief which the Defendant is seeking. That is not to say this Court would never be willing to do so, but in view of the facts and circumstances of this proceeding, removal of the entry of default would not be appropriate. CONCLUSION The Defendant is in default in this proceeding by waiting almost three months before filing its Answer, and has failed to present any plausible excuse explaining the reasons for this delay. Also, it has not established that a meritorious defense to this action exists, particularly in view of the admission in the Answer that the Defendant owes the amount alleged by the Plaintiff in the Complaint. Moreover, forcing the Plaintiff to prosecute this action would be unduly prejudicial. Therefore, in view of these facts, the Defendant has failed to satisfy the "good cause" standard of Rule 55(c) as required to set aside the entry of default. Accordingly, the Defendant's Motion to Remove Default is hereby DENIED, and the Plaintiff's Motion for Entry of Default Judgment is hereby GRANTED. IT IS SO ORDERED. JUDGMENT BY DEFAULT Default was entered against Defendant Allied Media, Inc. on July 30, 1993. It is accordingly ORDERED that judgment is entered against Defendant Allied Media, Inc. and that Plaintiff have judgment against Allied Media, Inc. in the principal amount of $19,508.89, plus prejudgment interest in the amount of $5,435.80, plus costs in the amount of $120.00. NOTES [1] Based upon the bare essentials contained in the Defendant's Answer, it is obvious that not much effort was needed to prepare the actual response to the Complaint. [2] Apparently, the Defendant will have the ability to pay this claim to the Plaintiff once it sells a radio station located in Baltimore, Maryland. See Answer at ¶ 5. [3] Specifically, Exhibit B is a letter dated February 4, 1993, from the Defendant to the Plaintiff. In this letter, the Defendant acknowledges that it owes the Plaintiff $19,508.89. This letter concludes with the following sentence: "As we close some transactions over the next few weeks and months we should be able to begin payments at that time." This sentence simply states that the Defendant did not have the current ability to pay the debt at that time, but hoped to be able to do so in the future. Nevertheless, it is devoid of any facts suggesting that an agreement may have existed as to when this particular debt would become due and owing.	{ "pile_set_name": "FreeLaw" }
693 S.W.2d 500 (1985) Charles Payne, T. MAYFIELD, Paul Wilson, R.H. Siegfried, Inc., Ernest E. Allerkamp, M. Sumners, & Morris Mayfield, Appellants, v. Rosa Vela de BENAVIDES, et al., Appellees. No. 04-83-00369-CV. Court of Appeals of Texas, San Antonio. March 13, 1985. Rehearing Denied April 10, 1985. 501 Thomas R. Stevens, San Antonio, Shirley A. Hale, Mann, Freed, Trevino & Hall, Laredo, R.F. Hamilton, Tulsa, for appellants. Lawrence A. Mann, Mann, Dickinson & Saldona, Laredo, for appellees. Before CADENA, C.J., and REEVES and TIJERINA, JJ. OPINION REEVES, Justice. This appeal involves the construction of an oil and gas lease, exploration and development damages flowing from a trespass on unleased land, and exemplary damages. The appellants in this cause are Charles Payne, T. Mayfield, Paul Wilson, R.H. Siegfried, Inc., Ernest E. Allercamp, M. Sumners and Morris Mayfield. The appellees in this cause are Rosa Vela de Benavides, Carlos Y. Benavides, Alfonso N. Benavides, Arturo T. Benavides, Beatriz S. Benavides, Individually and as Independent Executrix of the Estate of Roberto M. Benavides, Carlos Y. Benavides, Jr., Trustee, and Arturo N. Benavides, Trustee. Chronologically, the events leading to this suit are as follows: On March 30, 1968, appellees entered into a lease of 2936.9 acres with Mobil Oil Corporation. This lease was known as the "Benavides `B' lease"; it had a primary term of five years and would be perpetuated "so long thereafter as oil, gas or other mineral is produced." In July, 1968, Mobil made a partial assignment of the lease down to depths of 4,200 feet to Ralph Rowden, Ernest A. 502 Allerkamp and the Texas-Wisconsin Oil Company. On January 21, 1972, drilling of a well, designated as the "B-1" was commenced; it was completed as a gas well on February 10, 1972, prior to the expiration of the five-year primary term. On January 24, 1972, Ralph Rowden, Ernest E. Allerkamp and the Texas-Wisconsin Oil Company assigned to appellants mineral rights down to 2,000 feet in and under 320 acres around the B-1 well. On the same date by separate assignment, the parties effected an assignment of an additional 326.9 acres noncontiguous to the 320 acres surrounding the B-1 well. This latter assignment included 126.9 acres in Section 22 on which the appellants later drilled a well which was designated the "C-1." The 126.9 acre tract is located several miles from the 320 acre tract on which the B-1 well is located. Between the two tracts is a 1,400 acre tract in which the appellants have an interest under a 1966 lease. The parties refer to the lease for the 1,400 acres as the "Benavides `A' lease." The rights under this lease are not involved in this controversy. On March 30, 1973, the primary term of the March 30, 1968 lease expired. In 1977, appellants drilled and operated a gas well, the "C-1" well, on the 126.9 acres they claim was perpetuated under the March 30, 1968 lease by production of the "B-1" well. Production of the B-1 well perpetuated the lease as to some acreage. Precisely which acreage was held under the lease by the B-1 production constitutes the central controversy between the parties. Appellees brought a suit to quiet title and for an accounting of gas produced from the C-1 well. Trial was to the court without a jury. The trial court found that the lease had terminated as to the 126.9 acres on which the C-1 well was located. Appellees were awarded actual and exemplary damages; appellants were denied recovery of their drilling and operating expenses. Appellants assert four points of error: (1) The trial court erred in holding that appellants cannot claim, under paragraph 12 of the March 30, 1968 oil and gas lease, acreage upon which the C-1 well is located. (2) The trial court erred in finding that appellants were not good faith trespassers when appellants drilled the C-1 well because there is insufficient evidence to support lack of good faith. (3) The trial court erred in denying appellants the right to recoup and recover their drilling, equipping, completing and operating costs and expenses. (4) The trial court erroneously awarded exemplary damages to appellees. INTERPRETATION OF THE LEASE Paragraph 12 of the March 30, 1968 lease reads as follows: 12. It is agreed that, notwithstanding anything herein contained to the contrary, at the expiration of the primary term hereof this lease shall terminate insofar as it covers all of the above-described land except such land as may be allocated to a well for production purposes; the maximum amount of land to be allocated to an oil well shall not exceed eighty (80) acres plus a tolerance of ten per cent (10%) thereof for each oil well on the lease premises and to a gas well (whether producing or capable of producing gas in paying quantities) shall not exceed 640 acres plus a tolerance of ten per cent (10%) thereof for each gas well and provided also that if Lessee at the expiration of the primary term hereof is engaged in operations for drilling or re-working a well on land covered hereby or on land pooled therewith, this lease shall remain in full force and effect as to all of the land covered hereby so long as such operations are conducted on that well or successive wells with no cessation of more than ninety (90) days between the completion or abandonment of one well and the commencement of drilling or re-working operations on the succeeding well and, upon the cessation of such operations 503 for more than ninety (90) days, this lease shall terminate insofar as it covers all of the above described land except as to the land allocated to a well or wells for production purposes with the production determining the number of acres to be maintained or extended by such well. Appellants claim that under paragraph 12 of the March 30, 1968 lease, the lease could be perpetuated for a maximum of 640 acres. They first claim the 320 acres around the B-1 well; appellees as plaintiffs below took a non-suit as to this acreage. However, appellants maintain that the remainder of the 640 acres specified in paragraph 12 can be claimed on land noncontiguous to the B-1 well. Thus, they claim the B-1 well production perpetuated the March 30, 1968 lease as to the 126.9 acres on which the C-1 well is located. Under the appellees' interpretation of paragraph 12, the lease terminated on March 30, 1973 except as to the land allocated to production of the B-1 well, a total of 320 acres. Interpretation of a written instrument is always a quest for the intention of the parties to it. Fox v. Thoreson, 398 S.W.2d 88, 92 (Tex.1966). However, language used by the parties should be given its plain grammatical meaning unless to do so would definitely defeat the intention of the parties. Id. at 92. The intention of the parties, as that intention is expressed in the lease, is to be ascertained by considering all of the lease provisions. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344 (1957). The intention of the parties is not to be gathered from isolated parts of the instrument but from the four corners of the document. Shown v. Getty Oil Co., 645 S.W.2d 555, 559 (Tex.App.San Antonio 1982, writ ref'd). The plain language of the lease must be given an operative effect in harmony with its plain import. Superior Oil Co. v. Dabney, 147 Tex. 51, 211 S.W.2d 563, 565 (1948). The language of paragraph 12 is clear that 640 acres may be allocated to a gas well. Appellants seize upon this portion of the paragraph to claim acreage not surrounding the B-1 well but lying several miles away. They dismiss as immaterial the fact that the acreage is noncontiguous. However, such an interpretation runs counter to the rules of interpretation elucidated above. The instrument must be interpreted as a whole. Paragraph 12, a special limitation, provides at the conclusion of the primary term, the lease shall terminate except as to "such land as may be allocated to a well for production purposes." The language that follows this clause sets out a maximum amount of land that can be allocated to an oil or gas well. Land allocated to a gas well "shall not exceed 640 acres plus a tolerance of ten per cent (10%)." The 640 acres, then, is merely a maximum allowable. Paragraph 12 was not designed to allow a lessee to pick and choose acreage that can be held under a lease after expiration of the primary term. Under appellants' interpretation of paragraph 12, the lessee could select any number of small units of acreage, in checkerboard fashion, throughout the entire lease hold. The lessee could thereby acquire future drilling rights past the original term for an indefinite period of time. This surely could not be the intent of the parties. The acreage which is to be held under a lease that has expired because of the presence of a producing well is held solely for production purposes relating to that particular well. This is clear from the concluding statement of paragraph 12: "... this lease shall terminate insofar as it covers all of the above described land except as to the land allocated to a well or wells for production purposes with the production determining the number of acres to be maintained or extended by such well." We hold that the trial court correctly found that the March 30, 1968 lease was not perpetuated by production of the B-1 well so as to hold acreage on which the C-1 well is located. Point of error number one is overruled. 504 THE ISSUE OF GOOD FAITH Appellant complains of the sufficiency of the evidence to support a finding that they were bad faith trespassers. In passing upon the factual sufficiency of the evidence to set aside the decision of the fact finder, we weigh all of the evidence presented. We will reverse and remand the cause for a new trial only if we find the decision of the fact finder to be so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1952). To be in good faith in developing a tract of land for oil or gas, one must have both an honest and a reasonable belief in the superiority of one's title. Gulf Production Co. v. Spear, 125 Tex. 530, 84 S.W.2d 452, 457 (1935). "Good faith under one state of facts would not be good faith under a slightly different state of facts." Id., 84 S.W.2d at 457. The essential facts developed at trial in this cause were as follows: 1. Throughout 1973 and 1974, the parties disputed what acreage was held under the terms of the expired Benavides "B" lease. Appellants informed appellees that they had picked 320 acres around the B-1 well and 320 acres in separate tracts for future exploration. In late 1974, counsel for the appellees told appellants that appellees did not consider the March 30, 1968 lease to be in force and effect except for a maximum of 320 acres surrounding the B-1 well. 2. In spite of their claim to a leasehold interest in the 126.9 acres upon which the C-1 well is located, appellants attempted to secure a new lease covering the same acreage as well as additional tracts of land. Negotiations failed and appellee Arturo Benavides told appellant Payne, "Charles, we're too far apart." Consequently, no new lease was effected between the parties as to the tract of land upon which the C-1 well was drilled. 3. In December, 1976, appellants staked the C-1 well location. The well location plat depicting section number 22 is designated "Mayfield Engineering Service `C' Lease150.4 acres." There was no "C" lease, however, and the Benavides "B" lease, when in force during the primary term, covered only 126.9 acres of section 22 in which the C-1 well is located, not 150.4. Thus, the plat designation was in error. 4. In applications to drill the C-1 well which were filed with the Texas Railroad Commission in 1977, appellant Mayfield certified that the proposed C-1 well was to be on the "Rosa V. Benavides `C' lease" covering 307.30 acres and added the explanatory note, "This location on 150.4 acre tract of 307.30 acre leaseacreage is non-contiguous." As noted above, there was no "C" lease and the "B" lease never covered 150.4 acres of section 22. Thus, the above undisputed evidence was presented to the trial court and supports a finding of bad faith. The appellants were aware of appellee's consistent contention, communicated by counsel for the appellees, that the acreage where the C-1 well was drilled was not perpetuated under the March 30, 1968 lease. The appellants, in apparent conflict with their claim to a lease on the acreage by virtue of the March 30, 1968 lease, attempted to secure a new lease to the disputed land. Most significant is the fact that appellants represented to the Railroad Commission that a "Rosa Benavides `C' Lease" existed. Appellants direct our attention to other facts which they contend demonstrate good faith. They emphasize that they believed they had a good claim and the right to drill the C-1 well. They also point to the fact that there was no pending litigation concerning the oil and gas interests at the time they entered to drill the C-1 well. When one enters into possession of land and makes improvements thereon with full knowledge of the pendency of an action to enforce an adverse claim to the premises, one is conclusively considered a trespasser in bad faith. Houston Production Co. v. Mecom Oil Co., 62 S.W.2d 75 (Tex.Comm'n App.1933). The converse of the Mecom rule is not true, however; merely 505 because a suit has not been filed, the entry is not automatically one done in good faith. Rather, it is a circumstance to be considered along with other factors in determining the good faith of the trespasser. See Note, Oil and Gas Right of Trespasser to Compensation for Improvements What Constitutes "Good Faith," 12 TEXAS L.REV. 210 (1934). It is noteworthy that while no suit had been filed when the C-1 well was drilled in 1977, appellants were fully aware of appellees' adverse claim to the acreage. A letter from appellees' counsel in late 1974 stated, "We continue to feel that the extent of the perpetuated rights ... are governed by the terms of the respective leases and we find no basis for belief that the B-1 well can hold up to 640 acres in view of the fact that no more than 320 acres have apparently ever been dedicated to production from the well." Acting with notice of an adverse claim does not prohibit a finding of good faith. Louder v. Schluter, 78 Tex. 103, 14 S.W. 205 (1890) (reversing lower court's denial of cost of improvements), 78 Tex. 103, 13 S.W. 207 (1890) (reversing prior opinion on motion for rehearing because of no evidence). However, it is an additional consideration for the court in viewing the totality of circumstances. Appellants argue that they were in good faith because of certain other factors which weigh against a finding of bad faith: (1) drainage was taking place in the field, (2) they relied upon advice of counsel as to the interpretation of paragraph 12 of the March 30, 1968 lease, (3) appellees accepted royalties from the C-1 well production, (4) appellees knew or should have known of their adverse claim before appellants entered and drilled. It is a disputed fact as to when appellees learned of the C-1 well. Appellant Payne testified that he mentioned to Arturo Benavides the drilling of the C-1 well only after operations had begun. However, Payne testified that appellee Arturo Benavides "knew or should have known" about the drilling because the well location was near Arturo Benavide's ranch house. Arturo Benavides denied any conversations with Payne concerning the C-1 well. He testified that he discovered the existence of the C-1 well operation by chance in October or November of 1978 when he encountered an employee of Mayfield Engineering checking a gauge to a well at a location too far removed from the Benavides "A" lease or "B" lease to be attributable to them. Appellees admit they accepted royalties from the C-1 well production for over a year. However, they claim they were unaware that the royalty checks they received covered more than the production from the wells on the "A" lease and the well on the "B" lease. Only one of the sixty-five checks admitted into evidence made reference to the C-1 lease. It was dated December 16, 1977, payable in the amount of $716.48 to Rosa Vela de Benavides. Rosa Vela de Benavides was approximately ninety years old when she received the check. The check contains a notation on its face: "Benavides leasesR.I.; November Sales; Benavides "C"$103.46." None of the other four checks issued to other royalty interest owners on that same date made reference to the "C" lease. Accompanying the royalty checks were reports which appellants allege contained breakdown of production from the wells. Arturo Benavides testified that he never looked at these reports, however, and merely filed them upon receipt. There is no evidence of the contents of these reports. Regarding reliance upon counsel, appellant Payne testified that he consulted with his personal attorney in Tulsa who advised him that under paragraph 12 of the March 30, 1968 lease, appellants could claim up to 640 acres on noncontiguous acreage. Payne also testified he received similar opinions from "two or three different people." None of these individuals were named, none testified at trial, nor was any written correspondence or document reflecting such legal opinions introduced into evidence. The trial court had before it, 506 then, only Payne's bare assertion that appellants relied upon the advice of counsel. Appellant's expert witness testified that drainage had occurred by other operators producing on land adjoining the disputed acreage. If drainage is occurring, it is reasonable an operator would act to protect leasehold interests as well as the interest of the owners. The test as to when an operator should drill offset wells when drainage is taking place is what a reasonably prudent operator would do under similar facts and circumstances. Chapman v. Sohio Petroleum Co., 297 S.W.2d 885 (Tex.Civ.App.El Paso 1956, writ ref'd n.r.e.). However, if the operator has no leasehold interest, or unreasonably believes a leasehold interest exists, drainage in no way excuses a trespass upon the property of another. Here the trial court found that under the only reasonable interpretation of paragraph 12, appellant drilled the C-1 well without an interest in the acreage upon which it was located. Considering all factors, we hold that the trial court did not err in finding the appellants to be in bad faith as there is sufficient evidence to support such a determination and such is not against the great weight and preponderance of the evidence. RECOVERY OF DRILLING AND OPERATING COSTS As the trial court found appellants to be bad faith trespassers, recovery of development costs was correctly denied. The recovery of drilling and operating costs is predicated on the trespassers showing the trespass was unintentional or committed under a good faith belief as to the superiority of the trespasser's claim. See Bender v. Brooks, 103 Tex. 329, 127 S.W. 168 (1910). When the trespass is done in bad faith, the measure of damages is "the value of the things mined at the time of severance without making deduction for the cost of labor and other expenses incurred in committing the wrongful act ... or for any value he may have added to the mineral by his labor." Cage Brothers v. Whiteman, 139 Tex. 522, 163 S.W.2d 638, 642 (1942). Appellants' point of error number three is overruled. EXEMPLARY DAMAGES The trial court found that the defendant's actions and conduct "reflected a conscious disregard for and indifference to the consequences of drilling and producing the C-1 well without the consent of the plaintiffs." There is evidence to support this finding. Moreover, appellants were found to have been in bad faith. Appellants argue that exemplary damages are not appropriate in this cause; they attempt to distinguish Scurlock Oil Co. v. Joffrion, 390 S.W.2d 526 (Tex.Civ.App.Tyler 1965, no writ), a case where exemplary damages were awarded, in that it was a surface trespass case. We find this distinction to be without merit. See Houston Production Co. v. Mecom, supra at 77. A conscious indifference to and disregard of the rights of others, whether displayed while committing a surface trespass or a subsurface trespass, displayed by one who trespasses in bad faith, is sufficient to support an award for exemplary damages. Trenholm v. Ratcliff, 646 S.W.2d 927 (Tex.1983). The judgment of the trial court is affirmed.	{ "pile_set_name": "FreeLaw" }
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Cincinnati Bar Assn. v. Fernandez, Slip Opinion No. 2018-Ohio-3828.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2018-OHIO-3828 CINCINNATI BAR ASSOCIATION v. FERNANDEZ. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Cincinnati Bar Assn. v. Fernandez, Slip Opinion No. 2018-Ohio-3828.] Attorneys—Misconduct—Multiple violations of the Rules of Professional Conduct—Respondent’s law license indefinitely suspended. (No. 2017-1409—Submitted January 23, 2018—Decided September 25, 2018.) ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme Court, No. 2016-041. __________________ Per Curiam. {¶ 1} Respondent, Justin Enrique Fernandez, of Cincinnati, Ohio, Attorney Registration No. 0062974, was admitted to the practice of law in Ohio in 1994. On September 1, 2016, we publicly reprimanded Fernandez for his failure to provide sufficient information to his client to permit her to make informed decisions about SUPREME COURT OF OHIO his plans to achieve her legal objectives. Cincinnati Bar Assn. v. Fernandez, 147 Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724. {¶ 2} In a formal complaint certified to the Board of Professional Conduct on October 4, 2016, relator, Cincinnati Bar Association, charged Fernandez with multiple violations of the Rules of Professional Conduct arising from his neglect of three client matters, his retention of fees paid by those clients, the overdraft of his client trust account, and his failure to respond to the ensuing disciplinary investigations. {¶ 3} The parties submitted stipulations of fact and misconduct, aggravating and mitigating factors, and three exhibits. Fernandez was the only witness to testify at his hearing before a panel of the board. The panel issued a report in which it made findings of fact, found that Fernandez had committed all but one of the alleged violations, and recommended that he be indefinitely suspended from the practice of law, with certain conditions placed on his reinstatement.1 The board adopted the panel’s findings and recommended sanction. {¶ 4} Fernandez objects and urges us to reject the board’s finding that he acted with a dishonest or selfish motive. Consistent with the recommendation made by relator, he asks us to attribute mitigating effect to his intermittent homelessness and unspecified mental disorders and suspend him from the practice of law for one year. {¶ 5} Having reviewed the record, we adopt the board’s findings of fact and misconduct, aggravating and mitigating factors, and recommended sanction. Therefore, we indefinitely suspend Fernandez from the practice of law in Ohio and impose conditions on his reinstatement. 1. The panel unanimously dismissed an alleged violation of Prof.Cond.R. 5.3(b) (requiring a lawyer who employs and has direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer). 2 January Term, 2018 Misconduct {¶ 6} Between April and June 2015, Fernandez agreed to assist Cleora Jean Smith and Betty Smith Carpenter with the settlement of their debts and to file a Chapter 7 bankruptcy on behalf of Eddie and Amie Foster. As in Fernandez’s prior disciplinary case, these clients were referred to him by Morgan Drexen, Inc., a now defunct California company that provided paralegal and paraprofessional services to his law practice. Fernandez stipulated that Morgan Drexen assisted him in performing “non-formal debt resolution” for his clients. {¶ 7} In April 2015, the United States District Court for the Central District of California enjoined Morgan Drexen’s business operations and froze its assets. Soon thereafter, Morgan Drexen filed for bankruptcy and went out of business. In July 2015, Morgan Drexen’s clients were sent letters informing them that Morgan Drexen had filed for bankruptcy and that the attorney who represented them was no longer affiliated with the company. The letters stated, “All administrative and support services will now be provided directly by employees of the law firm you hired to represent you” and “[r]est assured, none of your money is affected by Morgan Drexen’s bankruptcy because your lawyers, not Morgan Drexen are responsible for [electronically transferring funds from] your account and holding your money in trust.” Those letters were sent on the letterhead of Howard Law, P.C., which bore the California mailing address that Morgan Drexen had used for Fernandez. {¶ 8} The board found that Fernandez had received $926 from Cleora Jean Smith, $2,618 from Betty Smith Carpenter, and $900 from Eddie and Amie Foster to secure his legal services. Fernandez failed to respond to their efforts to communicate with him, and he confirmed that his voicemail prompt instructed his clients to leave no more than one message per week due to his work volume. Not only did he fail to perform any legal services for these three clients, he failed to 3 SUPREME COURT OF OHIO advise the Fosters that they were ineligible to file bankruptcy because their previous one was so recent. Moreover, he failed to refund any money to these four clients. {¶ 9} On October 19, 2015, relator received a notice from U.S. Bank that one of Fernandez’s client trust accounts was overdrawn. In response to that notice and several client grievances, relator sent multiple letters of inquiry to Fernandez by regular and certified mail. Fernandez did not respond to relator’s requests for information. {¶ 10} The parties stipulated and the board found that Fernandez’s conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(2) (requiring a lawyer to reasonably consult with the client about the means by which the client’s objectives are to be accomplished), 1.4(b) (requiring a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation), 1.15(d) (requiring a lawyer to promptly deliver funds or other property that the client is entitled to receive), 2.1 (requiring a lawyer to exercise independent judgment and render candid advice while representing the lawyer’s clients), and 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a demand for information from a disciplinary authority during an investigation). In addition, the parties stipulated and the board found that Fernandez’s conduct with respect to his client trust account violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold funds belonging to a client or third party in a client trust account separate from his own property and to maintain certain records regarding the funds held in that account) and that his failure to respond to relator’s inquiries regarding the overdraft of his client trust account constituted an additional violation of Prof.Cond.R. 8.1(b). {¶ 11} We accept the board’s findings of fact and misconduct. Recommended Sanction {¶ 12} When imposing sanctions for attorney misconduct, we consider all relevant factors, including the ethical duties that the lawyer violated, the 4 January Term, 2018 aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases. {¶ 13} The parties stipulated and the board found that four aggravating factors are present—that Fernandez has a prior disciplinary record, engaged in a pattern of misconduct, committed multiple offenses, and caused harm to his clients, who the board found were particularly vulnerable and in dire need of protection from creditors. See Gov.Bar R. V(13)(B)(1), (3), (4), (8). {¶ 14} The board rejected the parties’ stipulation to two mitigating factors—that Fernandez did not act with a selfish or dishonest motive and that he practiced for more than 20 years without incident before being publicly reprimanded in September 2016. Instead, it found as additional aggravating factors that Fernandez had acted with a selfish and dishonest motive and “utterly failed to respond or cooperate in any way with Relator’s investigation of this matter.” See Gov.Bar R. V(13)(B)(2) and (5). The board also expressed its view that Fernandez’s apparent cooperation after relator filed its complaint should not “ameliorate his willful refusal to respond” to relator’s investigation. {¶ 15} The board rejected relator’s recommendation that Fernandez be suspended from the practice of law for one year as being “woefully inadequate to protect the public.” Instead, the board found that Fernandez had accepted payments from clients and had then failed to perform any work, conduct that is tantamount to theft, for which the presumptive sanction is disbarment. See, e.g., Disciplinary Counsel v. Horan, 123 Ohio St.3d 60, 2009-Ohio-4177, 914 N.E.2d 175, ¶ 22-23. Alternatively, the board noted that this matter could also be viewed as one in which an attorney had neglected entrusted legal matters and compounded that misconduct by failing to cooperate in the ensuing disciplinary investigation. The presumptive sanction for such offenses is an indefinite license suspension. See, e.g., Mahoning Cty. Bar Assn. v. DiMartino, 145 Ohio St.3d 391, 2016-Ohio-536, 49 N.E.3d 1280, 5 SUPREME COURT OF OHIO ¶ 13-14; Disciplinary Counsel v. Golden, 97 Ohio St.3d 230, 2002-Ohio-5934, 778 N.E.2d 564, ¶ 23. {¶ 16} The board acknowledged Fernandez’s testimony that he suffered from mental- health issues and that when he sought the assistance of the Ohio Lawyers Assistance Program (“OLAP”), its professionals recommended that he seek inpatient treatment for those conditions. While the board was sensitive to the possibility that Fernandez may, in fact, be suffering from significant mental or physical illnesses that could affect his ability to practice law in a competent, ethical, and professional manner, it also noted that Fernandez chose not to obtain the recommended treatment for financial reasons. In the absence of medical evidence to substantiate Fernandez’s claimed mental disorder as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7), the board found only that the possibility of its existence rendered the sanction of permanent disbarment “too harsh.”2 The board therefore recommended that we indefinitely suspend Fernandez from the practice of law, order him to make restitution to the affected clients, and place certain conditions on Fernandez’s reinstatement. Objection to the Recommended Sanction {¶ 17} Fernandez objects to the board’s finding that he acted with a dishonest and selfish motive and argues that the finding is contradicted by his own testimony regarding his gambling addiction and other unspecified and untreated mental disorders. He urges us to take judicial notice that a homeless attorney is likely to have impaired judgment and that poor decision-making, not selfishness or dishonesty, caused his behavior. Based on the remaining evidence, Fernandez 2. Gov.Bar R. V(13)(C)(7) provides that a mental-health disorder qualifies as a mitigating factor when all the following factors exist: a diagnosis of a disorder by a qualified healthcare professional, a determination that the disorder contributed to the respondent’s misconduct, a sustained period of successful treatment, and a prognosis from a qualified healthcare professional that the attorney will be able to return to the competent, ethical professional practice of law under specified conditions. 6 January Term, 2018 contends that the appropriate sanction for his misconduct is a one-year suspension. We disagree. {¶ 18} Despite Fernandez’s claims, we find that the record amply demonstrates that he acted with a selfish motive. His business relationship with Morgan Drexen was driven to maximize profit with high-volume representation by using paraprofessionals to perform much of the work with minimal attorney oversight. Fernandez testified that after entering into a business relationship with Morgan Drexen, he typically had between 100 and 400 clients—as a sole practitioner. He relied on Morgan Drexen to communicate with his clients and admitted that he had had had no personal contact with Cleora Jean Smith ten months after he commenced her representation. He took his clients’ money, relied on Morgan Drexen to do the work, and failed to adequately monitor the status of his clients’ legal matters. {¶ 19} When asked if it was possible that there were other clients for whom he charged fees that were not earned, Fernandez stated that he could not give a definitive answer, explaining, “[O]ne of the weak points of the Morgan Drexen interaction with attorneys was attorneys were heavily dependent on the software and information systems and the paraprofessionals that they put together; and I don’t—well, I haven’t ever really closely reviewed any of the software data to see what was done and what wasn’t done.” Ultimately, he admitted that he had just taken on too many clients. {¶ 20} Even more troubling than Fernandez’s lax oversight of his clients’ legal matters was his testimony regarding the management of the client-trust account that Morgan Drexen had established for him. Although Fernandez claimed that the account was his, when he was questioned about who had signature authority for the account, he responded, “Well, I definitely should have had signature authority, but I—I—I hope it doesn’t turn out that there’s other signature authority there. It should have been mine alone.” When asked how he got paid, however, 7 SUPREME COURT OF OHIO Fernandez suggested that others had signature authority for the account, explaining that when a client made a payment, his “paraprofessionals at Morgan Drexen should put the money in the trust account; and then, as the fees are earned, withdraw that money, put [it] in the general business account, and pay [him] from the general business account.” But Fernandez ultimately admitted that he did not know how the money moved because he never reviewed the banking records. His misconduct is far more serious than his neglect of three client matters, his failure to refund unearned fees, and his failure to maintain required trust-account records, because he completely abdicated his duty to safeguard the client funds entrusted to his care. {¶ 21} At the panel hearing, Fernandez testified that he “was having some mental health issues” and had lost his home to foreclosure the year before the charged misconduct began. He has furthermore admitted that he has a gambling problem and that his problems are not of a short-term or acute character, but rather that they have resulted in “repeated bouts of homelessness.” He has presented no evidence that those issues have been diagnosed by a qualified healthcare professional, that they contributed to his misconduct, that he has achieved a sustained period of successful treatment, or that he has received a prognosis from a qualified healthcare professional that he will be able to return to the competent, ethical professional practice of law. See Gov.Bar R. V(13)(C)(7). Furthermore, at oral argument, Fernandez confirmed that he had received no treatment for those issues—despite OLAP’s recommendation that he seek inpatient treatment—and he suggested that if he were not living with a friend, he would still be homeless. {¶ 22} Despite Fernandez’s argument, we find that the record plainly demonstrates that he acted with a selfish—though perhaps not dishonest—motive and that his lax business practices, poor judgment, and mental-health issues present an ongoing danger to the public. We are not unsympathetic to Fernandez’s plight, but given the seriousness of his misconduct and the significant effects he admits that his untreated mental-health issues have had on the management of his personal 8 January Term, 2018 affairs, we are convinced that an indefinite suspension with conditions for reinstatement, followed by a period of monitored probation once he is reinstated, is the appropriate sanction in this case. {¶ 23} Accordingly, Justin Enrique Fernandez is indefinitely suspended from the practice of law in Ohio, and any reinstatement shall be subject to the following conditions: that he (1) submit proof, within 60 days of our order, that he has made restitution of $926 to Cleora Jean Smith, $2,618 to Betty Smith Carpenter, and $900 to Eddie and Amie Foster, (2) complete 12 hours of continuing legal education with an emphasis on law-office and client trust-account management, in addition to the requirements of Gov.Bar R. X, (3) submit to an evaluation by a qualified healthcare professional to investigate the possible existence of a disorder as defined in Gov.Bar R. V(35) and comply with any treatment recommendations made as a result of that evaluation, and (4) show evidence that he has not engaged in further misconduct. Upon reinstatement, Fernandez is to serve a two-year term of monitored probation in accordance with Gov.Bar R. V(21). Costs are taxed to Fernandez. Judgment accordingly. O’CONNOR, C.J., and FRENCH, HALL, and FISCHER, JJ., concur. KENNEDY, J., dissents, with an opinion joined by O’DONNELL and DEWINE, JJ. MICHAEL T. HALL, J., of the Second District Court of Appeals, sitting for O’NEILL, J. _________________ KENNEDY, J., dissenting. {¶ 24} Because the record does not support the findings of the Board of Professional Conduct that respondent, Justin Fernandez, acted with a selfish motive and deserved no credit for his cooperation in the disciplinary process, I dissent from the majority’s decision to adopt its recommendation that we indefinitely suspend 9 SUPREME COURT OF OHIO him from the practice of law. Rather, in my view, the one-year suspension recommended by relator, the Cincinnati Bar Association, is the appropriate sanction in this case. {¶ 25} Fernandez contracted with a California company called Morgan Drexen, Inc., to provide him with outsourced paraprofessional, intake, accounting, and marketing and advertising services. Through this agreement, Morgan Drexen referred prospective clients in Ohio seeking debt relief to Fernandez, and these clients authorized direct deposits from their bank accounts to trust accounts opened and managed by Morgan Drexen. Fernandez might have represented as many as 500 clients at one time, and monthly withdrawals were collected by Morgan Drexen on Fernandez’s behalf until the client had paid a sufficient amount to offer a settlement to the client’s creditors. Morgan Drexen also paid fees to the paraprofessionals and to Fernandez once they were earned. {¶ 26} The United States District Court for the Central District of California enjoined Morgan Drexen’s business operations in April 2015 for charging an unlawful upfront fee for debt-relief services and engaging in deceptive advertising. Consumer Fin. Protection Bur. v. Morgan Drexen, Inc., 101 F.Supp.3d 856, 860- 861, 875 (C.D.Cal.2015). According to the court, Morgan Drexen began contracting with attorneys in 2010 to bundle its services with bankruptcy services in order to continue collecting upfront fees; “Morgan Drexen received 85% to 95% of the fees paid by the customer, and the attorneys received 5% to 15%.” Consumer Fin. Protection Bur. v. Morgan Drexen, Inc., C.D.Cal. No. 8:13-cv 01267-JLS JEM, 2015 WL 12712302, *1 (July 6, 2015), rev’d on other grounds by Consumer Fin. Protection Bur. v. Howard Law, P.C., 671 Fed.Appx. 954 (9th Cir.2016). {¶ 27} Morgan Drexen filed for bankruptcy protection and went out of business the following June, transferring its business-support services to Howard Law, P.C. In July 2015, clients received letters on “Howard Law, P.C.” letterhead informing them of Morgan Drexen’s bankruptcy and advising that their lawyers 10 January Term, 2018 were no longer affiliated with the company but would continue to represent them and hold their money in trust. Fernandez then apparently received support services from Howard Law. {¶ 28} In September 2015, the Cincinnati Bar Association filed an amended complaint charging Fernandez with professional misconduct related to a client who had contacted Morgan Drexen to settle her debts, and on September 1, 2016, we issued a public reprimand based on his failure to have any direct communication with her during the four months that he represented her. Cincinnati Bar Assn. v. Fernandez, 147 Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724, ¶ 1, 19. {¶ 29} On October 4, 2016, the Cincinnati Bar Association filed a second complaint against Fernandez alleging similar misconduct involving three additional clients who had been referred to him by Morgan Drexen. Although he failed to respond to letters of inquiry from the relator, it is not disputed by the parties that he cooperated in the disciplinary process after the investigation stage. Fernandez stipulated to his misconduct, acknowledged his wrongdoing, and admitted that a suspension would be appropriate. In addition, the parties stipulated to aggravating factors (prior discipline, a pattern of misconduct, multiple offenses, and harm to the victims) and mitigating factors (absence of a dishonest or selfish motive and the lack of discipline from Fernandez’s licensure in 1994 to his public reprimand in 2016). {¶ 30} The board found that relator had proved violations of the Professional Rules and the aggravating factors by clear and convincing evidence, but it rejected the stipulation regarding mitigating factors and found three additional aggravating factors: (1) “[t]he victims of Respondent’s misconduct were particularly vulnerable because Respondent deprived these clients of financial resources and neglected their needs at a time that they were in dire need of assistance and protection from creditors,” (2) “Respondent utterly failed to respond or cooperate in any way with Relator’s investigation of this matter,” and (3) 11 SUPREME COURT OF OHIO “Respondent acted with a selfish and dishonest motive.” It also indicated that Fernandez’s conduct in taking fees for work that he failed to perform “is tantamount to theft.” {¶ 31} Based on its findings, the board recommends that we indefinitely suspend Fernandez from the practice of law in Ohio. {¶ 32} There is no doubt that Fernandez fell well short of the professional standards demanded of all attorneys, and this case raises serious questions regarding whether his relationship with Morgan Drexen and its paralegals complied with Prof.Cond.R. 5.3 and 5.4 pertaining to an attorney’s association with nonlawyers. Nonetheless, the record does not contain clear and convincing evidence that Fernandez acted with a selfish motive or failed to cooperate in the disciplinary process. {¶ 33} First, with respect to two of the clients—Betty Smith Carpenter and Cleora Jean Smith—the evidence does not demonstrate that Fernandez collected a fee and then failed to perform the work he agreed to complete. The debt-relief services he supplied to his clients involved their making monthly payments to build up a sufficient reserve over a period time to offer creditors a settlement. Clients reached out directly to Morgan Drexen, gave that company their financial information, and authorized it to withdraw money from their accounts, and the nature of the debt-relief services required a sufficient amount of money to be accumulated over a period of time before an offer could be made to settle the debt with the creditor. These cases could continue for more than five years before settlements could be completed. And although Fernandez received client funds into his trust account and did not issue a refund, the clients did not know what became of their money. For instance, Jack Smith averred that his mother had had $374 per month withdrawn from her account from July 2015 to February 2016, but he had “not been informed of where the money went, or who was paid, or if any settlements with creditors were reached.” Similarly, Cleora Jean Smith stated in her affidavit 12 January Term, 2018 that funds had been withdrawn from her account, but she did not assert that creditors had not been paid or that no work had been completed. {¶ 34} And although attorney Richard A. Goulder’s affidavit indicated that Fernandez had collected $900 to file a bankruptcy for two other clients, Eddie and Amie Foster, and that Fernandez had not refunded that fee, Fernandez testified that Morgan Drexen’s paralegals had performed the intake for his bankruptcy cases and he had never spoken to the Fosters or advised them. Fernandez also testified that he did not believe that he owed any clients money, but he had not reviewed any banking records from his trust account to know where client funds had gone. It does not appear that there has ever been an accounting made, and at most, relator asserted that it was “not aware that any work was performed by Mr. Fernandez.” {¶ 35} The board relied on Disciplinary Counsel v. Horan, 123 Ohio St.3d 60, 2009-Ohio-4177, 914 N.E.2d 175, but that case is distinguishable. There, the attorney fraudulently altered fee applications to seek payment for court-appointed work that she had not performed. She also accepted fees from numerous clients but failed to appear at hearings or complete the work promised; the clients sought refunds but were unable to contact the attorney, who had signed some checks over to a relative. The attorney was also named a guardian ad litem in charge of a minor beneficiary’s trust account, with the funds to be paid to the beneficiary on his 18th birthday, but after turning 18, the beneficiary was unable to locate the money. We disbarred the attorney for stealing from her clients. {¶ 36} There is a distinction between an attorney’s collecting fees with no intention of completing the work and no intention of giving a refund—which is tantamount to theft and evinces a selfish and dishonest motive—and an attorney who agrees to perform work but out of neglect fails to do so. For example, in Columbus Bar Assn. v. Albrecht, 106 Ohio St.3d 301, 2005-Ohio-4984, 834 N.E.2d 812, the attorney accepted retainers and then failed to complete work promised to three clients, but we nonetheless accepted the board’s finding that the attorney 13 SUPREME COURT OF OHIO lacked a dishonest or selfish motive. More recently, in Toledo Bar Assn. v. Crosser, 147 Ohio St.3d 499, 2016-Ohio-8257, 67 N.E.3d 789, the attorney accepted a retainer, failed to perform the work, lied to the client to cover up her neglect, and then failed to timely refund the fee, and we accepted the finding that she acted without a selfish motive. {¶ 37} Accordingly, the board’s analogy of Fernandez’s case to one involving an attorney who misappropriated funds and who acted with a selfish motive is not well taken. The evidence shows that Fernandez relied on Morgan Drexen and its paralegals to help him manage his practice, that Morgan Drexen managed the fees paid by the clients it solicited, and that Morgan Drexen paid Fernandez when he earned his fees. However, since the board rejected the violation of having an improper relationship with nonlawyers, the remaining evidence indicates that Fernandez took on too many clients and neglected their cases. There is insufficient proof that he acted with a selfish motive, however. {¶ 38} The board also justified its recommended sanction on its finding that Fernandez exhibited a “complete failure” to cooperate with the disciplinary investigation. Although Fernandez admitted failing to respond to any of relator’s inquiries before it filed the complaint in this case, he admitted his misconduct and accepted responsibility for it during the course of these proceedings, communicating and cooperating with relator in proceedings before the board, stipulating to the admissibility and truth of the testimony in his victims’ affidavits, and waiving his right to cross-examine them. Further, relator admits in its brief that Fernandez’s cooperation aided the disciplinary process. This court has recognized that an attorney’s eventual cooperation in the disciplinary process is a basis to impose a lesser sanction. See, e.g., Disciplinary Counsel v. Davis, 121 Ohio St.3d 84, 2009-Ohio-500, 902 N.E.2d 25, ¶ 16; Columbus Bar Assn. v. Dice, 120 Ohio St.3d 455, 2008-Ohio-6787, 900 N.E.2d 189, ¶ 10-11; Disciplinary Counsel v. Boulger, 88 Ohio St.3d 325, 327, 725 N.E.2d 1112 (2000). 14 January Term, 2018 {¶ 39} Tellingly, in its independent review of Fernandez’s objection to the board’s recommendation, the majority does not marshal a single decision from this court supporting imposition of an indefinite suspension in this case, and in my view, a lesser sanction is warranted. {¶ 40} This case is analogous to Cincinnati Bar Assn. v. Larson, 124 Ohio St.3d 249, 2009-Ohio-6766, 921 N.E.2d 618. There, the attorney failed to perform work promised to three clients, did not promptly refund unearned fees, and failed to respond to letters of inquiry involving the grievance. He demonstrated problems managing an expanding number of cases, and “his hearing testimony showed that he had made few concrete changes for the future. He repeatedly referred to a general ambition to limit the number of his cases, the counties in which he practiced, and the time he spent out of the office. But these goals remain largely aspirational.” Id. at ¶ 40. But unlike Fernandez, the attorney had also engaged in a course of conduct to conceal his failure to competently pursue claims on the clients’ behalf, and the presumptive sanction for this misconduct was a two-year license suspension; based on the circumstances, we imposed a two-year suspension with 12 months stayed on conditions. Id. at ¶ 19. {¶ 41} In this case, Fernandez accepted more clients than he could competently represent, failed to monitor their cases and keep track of and account for client funds, and effectively allowed nonlawyers to run his practice. However, there is no proof that he misappropriated client funds, acted with a selfish or dishonest motive, or completely failed to cooperate in the disciplinary process. {¶ 42} Accordingly, I would adopt the recommendation of relator in this case and impose a one-year license suspension with reinstatement subject to the conditions recommended by the board. O’DONNELL and DEWINE, JJ., concur in the foregoing opinion. _________________ 15 SUPREME COURT OF OHIO Edwin W. Patterson III, Bar Counsel; Taft, Stettinius & Hollister, L.L.P., and Justin D. Flamm; and Zingarelli Law Office, L.L.C., and Nicholas A. Zingarelli, for relator. Justin Enrique Fernandez, pro se. _________________ 16	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4072 DARRELL AARON ALEXANDER, a/k/a Hollywood, Defendant-Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, District Judge. (CR-97-399-MJG) Submitted: August 10, 1999 Decided: September 8, 1999 Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Warren A. Brown, WARREN A. BROWN, P.A., Baltimore, Mary- land, for Appellant. Lynne A. Battaglia, United States Attorney, James G. Pyne, Assistant United States Attorney, Baltimore, Mary- land, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Darrell Aaron Alexander appeals from his conviction on one count of being a felon in possession of a firearm (18 U.S.C.A. § 922(g)(1) (West Supp. 1999)) and one count of possession with intent to distrib- ute heroin (21 U.S.C. § 841(a)(1) (1994), 18 U.S.C. § 2 (1994)). He claims that the district court erred by denying his motion to suppress all evidence seized by police following an allegedly unlawful stop of his car and by allowing an expert witness to give opinion testimony concerning the reasons why people use police scanners. We find no merit to his claims; consequently, we affirm. Based on information from a confidential informant that Alexan- der, a convicted felon, was trafficking in heroin and had a gun in his car, law enforcement officers followed Alexander as he drove a BMW from Owings Mills Mall towards Baltimore. Unable to stop him for any traffic violations, the officers decided they nevertheless had enough incriminating evidence to justify stopping him. With the help of several marked Baltimore City patrol cars, an agent from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") and a Maryland state police officer in an unmarked patrol car tried to stop Alexander. Initially, Alexander pulled over and the unmarked car stopped in front of him. However, when the ATF agent started to get out of the unmarked car, Alexander accelerated his car, hitting the agent and the unmarked car, throwing the agent into the door jamb of the unmarked car, and damaging the patrol car. Eventually, officers in the marked cars succeeded in stopping Alexander. Under the driver's seat of Alexander's car, they found a loaded pistol. A subsequent search of the apartment the informant said Alexander shared with his girlfriend, pursuant to the girlfriend's consent, revealed heroin, ammunition, Alexander's wallet, and two police scanners. Alexander's first argument on appeal is that the district court erred by denying his motion to suppress the evidence seized from his auto- 2 mobile and the apartment because the initial automobile stop was ille- gal, tainting all evidence subsequently seized as fruit of the poisonous tree. We need not decide whether the initial stop was unlawful because Alexander's actions following the initial stop, namely hitting an ATF agent and an unmarked police vehicle with his car, leaving the scene of an accident where there was property damage and possi- bly bodily injury, and fleeing the Baltimore City Police, justified the second stop. See United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997). Because all the evidence was seized after this second lawful stop, the district court properly denied Alexander's suppression motion. Alexander also contends that the district court erred by allowing Special Agent Will Plummer, who qualified as an expert witness con- cerning the methods of narcotics operations, to testify about why drug dealers would want to listen to police scanners. We find that the dis- trict court did not abuse its discretion by allowing this testimony. See United States v. Brewer, 1 F.3d 1430, 1436 (4th Cir. 1993). For these reasons, we affirm Alexander's convictions. We dispense with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3	{ "pile_set_name": "FreeLaw" }
34 So.3d 13 (2010) BROWN v. STATE. No. 4D09-1367. District Court of Appeal of Florida, Fourth District. January 6, 2010. Decision Without Published Opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
791 F.Supp.2d 994 (2011) Martin TOCCI, Plaintiff, v. Janet NAPOLITANO, Secretary, Department of Homeland Security, Defendant. No. CV-10-1324-HZ. United States District Court, D. Oregon, Portland Division. June 14, 2011. 995 D. Eric Woodard, Kramer & Associates, Portland, OR, for Plaintiff. Dwight C. Holton, United States Attorney, Sean E. Martin, Assistant United States Attorney, United States Attorney's Office, Portland, OR, for Defendant. OPINION & ORDER HERNANDEZ, District Judge: Plaintiff Martin Tocci brings this employment discrimination action against Janet Napolitano, Secretary of the Department of Homeland Security (DHS) which encompasses the Transportation Security Administration (TSA), plaintiff's former employer. Defendant moves to dismiss for failure to state a claim and for lack of subject matter jurisdiction. I grant the motion. BACKGROUND The following facts are taken from the Complaint. Additional facts are discussed below. Plaintiff was hired by the TSA on August 22, 2004, as a security screener. Compl. at ¶ 7. He was suspended on March 18, 2005, based on allegations of misconduct involving a failure to replace food items removed from checked baggage and eating food items while on duty. Id. He was terminated April 12, 2005. Id. At the time of his termination, plaintiff was sixty-five years old. Id. at ¶ 10. He alleges that his termination was based 996 upon his age, and the alleged misconduct was a pretext to justify his termination. Id. STANDARDS I. Motion to Dismiss For Failure to State a Claim On a motion to dismiss, the court must review the sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. American Family Ass'n, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1120 (9th Cir. 2002). However, the court need not accept conclusory allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992). A motion to dismiss under Rule 12(b)(6) will be granted if plaintiff alleges the "grounds" of his "entitlement to relief" with nothing "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]" Id. (citations and footnote omitted). To survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[,]" meaning "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation omitted). Additionally, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. The complaint must contain "well-pleaded facts" which "permit the court to infer more than the mere possibility of misconduct." Id. II. Motion to Dismiss for Lack of Subject Matter Jurisdiction A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (court treats motion attacking substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) ("[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency[.]") (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir.2009); see also Dreier, 106 F.3d at 847 (a challenge to the court's subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits or any other evidence properly before the court). DISCUSSION Plaintiff brings four claims for relief: (1) a claim entitled "wrongful discharge" alleging that he was constructively discharged when he was subjected to an intimidating, hostile, and offensive work environment based on his age; (2) a claim 997 for intentional infliction of emotional distress (IIED); and (3) two claims for age discrimination, with one brought under 29 U.S.C. § 623, the federal Age Discrimination in Employment Act (ADEA), and the other brought under Oregon law pursuant to Oregon Revised Statute § (O.R.S.) 659A.030. Compl. at ¶¶ 15-20. Defendant moves to dismiss the wrongful discharge, IIED, and the O.R.S. 659A.030 claims for lack of jurisdiction. Defendant moves to dismiss the federal ADEA claim for failure to state a claim. I. Wrongful Discharge Claim In his memorandum in opposition to the motion, plaintiff states both that he opposes the motion to dismiss his first claim for wrongful termination, and that he concedes that the Court lacks jurisdiction over this claim because his suspension and termination rendered his hostile work environment claim moot. Pl's Resp. Mem. at pp. 1, 4. However, plaintiff conceded the claim at oral argument, obviating the need to discuss defendant's dismissal arguments. II. IIED Claim Defendant first argues that plaintiff's IIED claim is preempted by the Civil Service Reform Act, 5 U.S.C. § 2302 (CSRA), which provides the exclusive remedy for federal employees to challenge prohibited personnel practices that fall within the definitions established by the CSRA. As the Ninth Circuit explained in a 2008 case, [t]he CSRA creates a "remedial scheme through which federal employees can challenge their supervisors' `prohibited personnel practices.'" Orsay v. U.S. Dep't of Justice, 289 F.3d 1125, 1128 (9th Cir.2002) (quoting 5 U.S.C. § 2302). If the challenged conduct "falls within the scope of the CSRA's `prohibited personnel practices,' then the CSRA's administrative procedures are [the employee's] only remedy." Id. The CSRA's remedial scheme is both exclusive and preemptive because "permit[ting] FTCA claims to supplant the CSRA's remedial scheme" would defeat Congress' purpose of creating "a single system of procedures and remedies, subject to judicial review." Rivera v. United States, 924 F.2d 948, 951 (9th Cir.1991). Accordingly, where Congress has provided a process for processing prohibited personnel practices, other potential employee remedies are preempted. See [U.S. v.] Fausto, 484 U.S. [439] at 455, 108 S.Ct. 668, 98 L.Ed.2d 830 [(1988)]. Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir.2008). "[P]rohibited personnel practices" under the CSRA are defined as any "personnel action" taken by someone in authority that violates one of twelve enumerated practices. 5 U.S.C. § 2302(b). "Personnel action" includes any appointment, promotion, disciplinary or corrective action, detail, transfer, reassignment, reinstatement, restoration, reemployment, performance evaluation, pay or benefits decision, mandatory psychiatric examination, or any other significant change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A)(i)-(xi). Plaintiff contends that defendant intentionally inflicted emotional distress on him by treating him differently because of his age, manifested by a pattern of unspecified discriminatory conduct, statements, and incidents, and culminating in his discharge based on a pretext of wrongful conduct. "The definition of `personnel action' is, necessarily, broad." Mangano, 529 F.3d at 1247. "[The plaintiff's] claim that he was unfairly terminated falls squarely within the definition of a personnel action as a `significant change in duties, responsibilities or working conditions' under 998 the CSRA." Id. Accordingly, here, plaintiff's IIED claim is preempted by the CSRA and this Court lacks subject matter jurisdiction over the claim. See Marrazzo v. Leavitt, 719 F.Supp.2d 1297, 1305 (D.Or. 2010) (court lacked jurisdiction to hear plaintiff's IIED claim based on alleged disability discrimination, due to preemption by the CSRA). I need not address defendant's alternative arguments in support of dismissing the IIED claim. III. Age Discrimination Claims A. State Claim Defendant moves to dismiss the state age discrimination claim for lack of jurisdiction. The remedies for a federal employee's employment discrimination claim against his or her federal employer are found in federal statutes, not in state statutes. Sharr v. Dep't of Transp., 247 F.Supp.2d 1208, 1213 (D.Or.2003) (Title VII or ADEA provided exclusive judicial remedy for discrimination claim in federal employment; analogous state law claim under O.R.S. 659A.030 could not be pursued). Plaintiff concedes that dismissal of this claim is appropriate. Pl's Resp. Mem. at p. 4. B. Federal Claim As to the ADEA claim, defendant argues that plaintiff fails to state a claim on which relief may be granted because plaintiff did not comply with pre-filing administrative prerequisites. A federal employee has two avenues of relief for alleged age discrimination by a federal employer. Forester v. Chertoff, 500 F.3d 920, 924 (9th Cir.2007) (citing 29 U.S.C. § 633a). The employee may pursue administrative remedies in accordance with the requirements of 29 C.F.R. § 1614.105, or, the employee may bypass administrative proceedings and file a civil action directly in federal court. Id.; 29 U.S.C. § 633a(d); 29 C.F.R. §§ 1614.105, 1614.201. Under the first option, the employee is required to initiate contact with "a[n] [Equal Employment Opportunity (EEO)] Counselor" within forty-five days of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five days of the date of that action. 29 C.F.R. § 1614.105(a)(1). Under the second option, the employee must file a notice of intent to file a civil action with the Equal Employment Opportunity Commission (EEOC) within 180 days from the alleged discriminatory conduct, and then wait thirty days before filing the civil action. 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a). In the first option, the contact is with the employing agency's EEO Counselor, meaning, in this case, the EEO Counselor for the TSA. In the second option, the notice is sent to the EEOC, not to the agency's internal EEO Counselor. Defendant contends that plaintiff failed to timely initiate the EEO process required for an administrative remedy and that under the bypass option, plaintiff failed to provide the required notice to the EEOC prior to filing suit. Thus, defendant argues, plaintiff is foreclosed from pursuing the claim under either avenue. Plaintiff disputes defendant's assertions. Although defendant has characterized this motion as a motion to dismiss for failure to state a claim under Rule 12(b)(6), both defendant and plaintiff submitted material outside of the pleadings in support of, or in opposition to, the motion. Rule 12(d) provides for conversion of a Rule 12 motion to dismiss to a Rule 56 motion for summary judgment when the court does not exclude matters outside the pleadings presented by the parties and when all parties are "given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). Here, because both parties have submitted material outside the pleadings, I convert 999 the motion to one for summary judgment. Edwards v. Wells Fargo & Co., 606 F.3d 555, 556 (9th Cir.2010) (court treated motion as one for summary judgment instead of Rule 12(b)(6) motion when district court considered material outside of the pleadings presented in support of and in opposition to the motion); Olsen v. Idaho St. Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.2004) (strict notice by district court of conversion of motion from Rule 12(b)(6) to summary judgment under Rule 56 not required; extra material submitted by and relied on by plaintiff in opposition to the motion showed that plaintiff had sufficient notice that court would treat the motion to dismiss as one for summary judgment). I informed the parties of the nature of the motion at oral argument. The documents in the record show that on June 7, 2005, the TSA sent plaintiff a letter acknowledging plaintiff's request for informal EEO counseling. Pl's Ex. 6 at p. 5. In response to the letter, plaintiff sent the TSA's Office of Civil Rights a "Request for Counseling" form dated June 23, 2005, along with an explanatory statement of his complaint. Id. at pp. 1-4, 6-8. He also submitted an agreement to extend the EEO informal counseling process for sixty days, for a total of ninety days. Pl's Ex. 5. Plaintiff filed a formal administrative complaint of discrimination on September 8, 2005. Pl's Ex. 1. There, plaintiff indicates that his final interview with EEO Counselor Robert F. Wohleber was August 18, 2005. Id. at p. 3. Although the administrative proceeding appears to have taken a somewhat tortured and circuitous path, see Pl's Ex. 3 (Mem. from Raymond Desmone, TSA Manager, Formal Complaints Division, Office of Civil Rights & Liberties explaining the "confusion encountered in the processing of this complaint"), a Final Decision by the DHS was issued on July 26, 2010, dismissing the administrative complaint for failure to initiate contact with the EEO Counselor within forty-five days of the alleged discrimination as required by 29 C.F.R. § 1614.105(a)(1). Pl's Ex. 4; Def's Ex. A to Desmone Decl. Under 29 C.F.R. § 1614.407, plaintiff had ninety days from receipt of the Final Decision to file a civil action related to the administrative complaint initially filed with the agency. Plaintiff's action in this Court was filed within that ninety-day period. Because it is unclear from the Complaint and the briefing whether plaintiff brings his federal ADEA claim as a direct filing under the bypass provision, or as an appeal from the agency's July 26, 2010 Final Decision on his administrative complaint, I address both. 1. Direct Filing Under Bypass Provision I agree with defendant that plaintiff is precluded from pursuing an ADEA claim under the "bypass" provision in 29 U.S.C. § 633a(d). The statute requires a plaintiff to file a notice of an intent to sue with the EEOC within 180 days of the alleged discriminatory practice, and then wait thirty days before filing suit. 29 U.S.C. § 633a(d). The regulation expressly requires written notice to the EEOC at a specified address in Washington, D.C., by mail, personal delivery, or facsimile. 29 C.F.R. § 1614.201(a). In support of the motion, defendant relies on the declarations of Marjorie Borders and Raymond Desmone. Borders, the EEOC's Compliance Branch Chief, Compliance and Control Division Headquarters, Office of Federal Operations, Federal Sector Programs, states that [a] search was conducted of the ADEA notice correspondence files maintained by Federal Sector Programs. Those files are maintained chronologically and accessed through an alphabetical electronic database. ADEA notice files contain notices of intent to sue federal agencies under the ADEA, and related 1000 correspondence from the EEOC to federal agencies and claimants, on notices filed directly with Federal Sector Programs, or notices forwarded to Federal Sector Programs by an EEOC field office, where a notice is erroneously filed with a field office. Our review of those files did not reveal any notice of intent to sue the United States Department of Homeland Security or the Transportation Security Administration filed by Martin Tocci[.] We also reviewed the general correspondence files maintained in the Office of Federal Operations on the Plaintiff, Martin Tocci, and did not locate any notice of intent to sue the United States Department of Homeland Security or the Transportation Security Administration filed by the Plaintiff[.] Borders Decl. at ¶¶ 4, 5. Desmone, Manager of the Formal Complaint Division of the TSA's Office of Civil Rights and Liberties (OCRL), states that OCRL database searches were conducted on March 1, 2011, to determine if any notices of intent to sue under the ADEA were filed within 180 days of the alleged discrimination. Various search methods were employed, including searches by case number, and Mr. Tocci's first and last name. This search revealed that OCRL has no record of having received a notice of intent to sue from Mr. Tocci. Desmone Decl. at ¶ 4. In response, plaintiff simply states that the "EEOC had abundant pre-suit notice of Plaintiff's intention to file a tort claim." Pl's Resp. Mem. at p. 5. In support, plaintiff generally refers to his "Statement of Facts and Exhibits" and then cites specifically to his Exhibit 4. None of the evidence in the record shows that plaintiff complied with the regulation's directive that a notice of intent to sue be mailed, personally delivered, or faxed to the EEOC at the address provided in the regulation. Rather, plaintiff relies on phone bill records to show that various phone calls were made following his suspension and then termination, that he filed his administrative complaint on or about September 8, 2005, and that he continued to pursue his administrative complaint through the Final Decision issued July 26, 2010. Pt's Exs. 1-6. These actions, however, do not substitute for the notice required by the statute and regulation. In Rann v. Chao, 346 F.3d 192 (D.C.Cir.2003), the court addressed whether the plaintiff met the notice requirement of section 633a(d) by submitting a formal complaint to the EEO Office of the Department of Labor, the plaintiff's employing agency. Id. at 197. The court noted that the plain language of the statute requires the filing of a notice of intent to sue with the EEOC itself. Id. at 198. The court also noted that the statute requires the EEOC, upon receipt of a notice of intent to sue, to "promptly notify all persons named therein as prospective defendants in the action and take any appropriate action to assure the elimination of any unlawful practice." Id. (quoting 29 U.S.C. § 633a(d)). The court explained that while notice to the agency's EEO office could lead to notice to all prospective defendants, it would not trigger EEOC action to eliminate unlawful practices. Id. The court further cited the regulation and its express directive to file a notice with the EEOC itself at a specified address in Washington, D.C. Id. The court rejected the plaintiff's reliance on out-of-date cases which suggested that the required intent to sue notice could be sent to the employing agency's EEO Office, because those cases relied on since-repealed regulations. Id. Accordingly, the court held that the plaintiff did not meet the notice requirements of section 633a(d) and thus, could not proceed with his ADEA claim in federal court. 1001 District courts have reached the same result in similar cases. E.g., Byers v. Napolitano, No. 3:10-CV-60, 2010 WL 3386019, at 2 (W.D.N.C. Aug. 25, 2010) (letter written to the TSA did not satisfy notice requirement of section 633a(d) because the statute and regulation require notification to the EEOC, not the TSA, of intent to sue); see also Figueroa v. United States Postal Serv., 422 F.Supp.2d 866 (N.D.Ohio 2006) (letter sent by the plaintiff to EEOC's Office of Federal Operations did not comply with requirements of notice of intent to sue because it failed to include the name of the federal agency that allegedly discriminated against her, the date on which the alleged discrimination occurred, and a statement of the nature of the discrimination); Furthermore, the statute and the regulations provide two separate avenues of relief for federal workers complaining of age discrimination which give an aggrieved federal employee the initial choice of proceeding administratively or in federal court, after satisfying the respective procedural prerequisites. While, in the Ninth Circuit, a federal employee is not required to exhaust his or her administrative remedies before filing a federal court ADEA claim under the bypass provision, Bak v. Postal Serv., 52 F.3d 241, 244 (9th Cir. 1995) (a claimant is not required to exhaust his administrative remedies with regard to an age discrimination claim prior to filing a civil suit), the regulations nonetheless indicate that any pending administrative EEOC proceedings will be dismissed if the complainant files a lawsuit. Bankston v. White, 345 F.3d 768, 775, 776-77 (9th Cir.2003) (citing 29 C.F.R. § 1614.409 and noting that the "significance of the amended EEOC regulation is that there would never be EEOC proceedings going on at the same time as a lawsuit"). Thus, given the statutory structure, the pursuit of an administrative claim is not tantamount to filing, with the EEOC directly, a notice of an intent to actually sue the agency in court. Thus, plaintiff's argument that his administrative complaint satisfied the notice requirements of 29 U.S.C. § 633a(d) and 29 C.F.R. § 1614.201(a), is unavailing. Here, the record indicates that plaintiff made telephone contact with the TSA and perhaps the EEOC within 180 days of the April 12, 2005 discharge, and filed a formal administrative complaint with the TSA in September 2005. These acts do not satisfy the notice requirements of section 633a(d) and the implementing regulation at section 1614.201(a). Moreover, while the relevant timelines are subject to waiver, equitable, or equitable tolling, 29 C.F.R. § 1614.604(c), plaintiff makes no such arguments and the facts do not support the application of any of these doctrines when the record indicates that plaintiff made no attempt to comply with the notice required for the bypass provision. Thus, I dismiss plaintiff's federal ADEA claim to the extent it is based on a direct filing in this Court. 2. Appeal from Agency Final Decision If the record shows that plaintiff failed to comply with the forty-five day requirement in 29 C.F.R. § 1614.105(a)(1) for pre-complaint EEO counseling, he cannot proceed with the ADEA claim under section 1614.407. See Whitman v. Mineta, 541 F.3d 929, 932-33 (9th Cir.2008) (plaintiff's failure to notify EEO Counselor within forty-five days of alleged discriminatory incident made civil ADEA action based on appeal of administrative decision, untimely); Lyons v. England, 307 F.3d 1092, 1105-08 (9th Cir.2002) (failure to contact EEO Counselor within forty five days of incident rendered claim time-barred). The parties agree that plaintiff's employment ended April 12, 2005. Defendant contends that plaintiff's first contact with an EEO Counselor under 29 C.F.R. 1002 § 1614.105(a)(1) was no earlier than June 2, 2005, seven days after May 27, 2005, the end of the forty-five day period allowed to initiate pre-complaint contact with the EEO Counselor. The burden of proof on the timeliness issue falls on defendant. Because the time-limit requirement is not jurisdictional in nature but is akin to a statute of limitations subject to waiver, estoppel, and equitable tolling, defendant's assertion that plaintiff failed to contact the EEO counselor within forty-five days is an affirmative defense. Forester, 500 F.3d at 928-29 (time prescriptions for federal employee's ADEA claim are not jurisdictional); Payan v. Aramark Mgmt Servs. Ltd. Pship, 495 F.3d 1119, 1122-23 (9th Cir.2007) (statute of limitations is an affirmative defense on which the defendant bears the burden of proof). In support of the motion, defendant relies on the Second Declaration of Raymond Desmone in which Desmone states that plaintiff's "Administrative File," maintained at the TSA's Office of Civil Rights and Civil Liberties, contains various documents, kept in the ordinary course of business at the TSA, and that based on those records, the earliest date plaintiff attempted to initiate EEO counseling was June 2, 2005. Desmone Second Declr. at ¶¶ 2-7. Exhibit A to Desmone's Second Declaration is the plaintiff's April 12, 2005 Termination Letter. It expressly states that if plaintiff believes the termination resulted from illegal termination based on age, he may contact the Office of Civil Rights and that if he chooses to do so, he must make that contact within forty-five calendar days of the effective date of the termination. Exh. A to Desmone Second Declr. at p. 2. It also contains the phone number (1-877-336-4872) for making the contact. Id. According to Desmone, notes taken by the Informal Complaint Division show that plaintiff's initial contact with a TSA EEO Counselor was June 2, 2005. Desmone Second Decl. at ¶ 4. Exhibit B to Desmone's Second Declaration are the notes taken from that June 2, 2005 contact. The first page includes contact information for plaintiff and a note that on June 2, 2005, plaintiff called to request an "ARC package." Exh. B to Desmone Second Decl. at p. 1. It also notes that plaintiff "said he called earlier," but the TSA employee informed him that no record of any previous contact could be located. Id. The second page is a form "Contact Sheet" in which handwritten information regarding plaintiff's name, address, and termination date is noted by "RW." Id. at p. 2. The "Initial Contact Date" is recorded as June 2, 2005. Id. The third page is a copy of the "Informal Complaint Processing Information," which again shows the initial contact date of June 2, 2005, the date the "ARC Package" was mailed to plaintiff, the date the package was received back by the Office of Civil rights, the date the EEO counselor was assigned, and the name of the counselor. Id. at p. 3. Desmone explains that "[i]t is a standard practice that EEO staff make notes regarding all contacts with potential claimants, and that such notes are maintained in that individual's Administrative File." Desmone Second Decl. at ¶ 4. Other documents in plaintiff's Administrative File include the Notice of Rights and Responsibilities sent to plaintiff on June 7, 2005, a Notice of Right to File sent to plaintiff on August 19, 2005, and the TSA EEO counselor's report dated October 14, 2005. Id. at ¶¶ 5-7; Exs. C, D, E to Desmone Second Decl. Plaintiff contends he made timely contact within the forty-five day period. In support, plaintiff submits copies of his phone records from AT & T from February 15, 2005, through July 12, 2005. Ex. 2 to PI's Mem. in Opp. Of relevance here are the records showing phone calls made on 1003 or before May 27, 2005. The phone records have been annotated by handwriting of an unidentified person. The annotations of the pre-May 28, 2007 calls are as follows: (1) next to the listing of certain calls made on March 21, 2005, the words "Office of [unintelligible] Ombudsman," (2) next to the listing of certain calls made on April 13, 2005, "EEOC," and (3) next to the listing of certain calls made April 28, 2005, "T.S.A. Human Resources." Ex. 2 to PI's Mem. in Opp. Defendant raises two problems with plaintiff's response. First, defendant correctly notes that these are unauthenticated phone records, and there is no sworn statement from plaintiff attesting to relevant facts such as that he called the numbers listed on the phone records, that those phone numbers are in fact the numbers of the agencies noted in the annotations, that his reason for calling was to seek EEO counseling over alleged discrimination, and that he actually spoke with an employee or left a message explaining his concerns over potential discrimination. "A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir.2002). "[U]nauthenticated documents cannot be considered in a motion for summary judgment." Id. Because plaintiff fails to submit any admissible evidence creating an issue of fact as to his making contact with an EEO counselor before June 2, 2005, defendant's motion must be granted. Defendant also contends that even if plaintiff submitted admissible evidence establishing that he made the calls to the TSA Ombudsperson, the EEOC, or the TSA's Human Resource Department before May 28, 2005, none of those entities would satisfy the requirement that he contact an EEO counselor. Thus, defendant argues that even if the evidence plaintiff relies on were admissible, he nonetheless fails to create an issue of fact as to his pre-May 28, 2005 contact with an EEO counselor. In a recent case, the Ninth Circuit held that a plaintiff does not need to contact the agency's designated EEO counselor to comply with the statute and the regulation. Kraus v. Presidio Trust Facilities Div., 572 F.3d 1039, 1044-46 (9th Cir.2009). In Kraus, the plaintiff complained to her agency's EEO "officer," not the EEO "counselor". The district court concluded that the contact was insufficient. The Ninth Circuit reversed, explaining that the EEOC has long and consistently adhered to an interpretation of 29 C.F.R. § 1614.105 that "a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO Process." Id. at 1044 (quoting EEOC Management Directive 110, at ch. 2, § I.A. n. 1) (emphasis added in Kraus). The court noted that agency decisions implementing the EEOC Management Directive "demonstrate that the EEOC understands the category of `agency officials logically connected with the EEO process' to encompass EEO personnel in positions with a variety of titles other than `Counselors' including EEO `officers[.]'" Id. The court added that "even contact with certain agency officials who are not EEO personnel has been held sufficient to satisfy the regulation's `contact with a Counselor' requirement, provided they are found to be logically connected to the EEO process within the agency." Id. (internal quotation omitted). The court cited several EEOC administrative decisions in support of the proposition that the EEOC had frequently made no distinction between EEO "officers" and EEO "counselors," Id. at 1044 n. 6 (citing 1004 EEO decisions), and further cited to a case in which the Eighth Circuit held that a Department of Agriculture (USDA) employee who contacted the Director of the USDA's Office of Civil Rights had satisfied the EEO counselor contact requirement. Id. at 1045 (citing Culpepper v. Schafer, 548 F.3d 1119, 1122-23 (8th Cir.2008)). However, other cases indicate that simply complaining to one's supervisors or to an agency's human resources department is not sufficient. Johnson v. Henderson, 314 F.3d 409, 415 (9th Cir.2002) (complaining to supervisor does not "satisfy the requirement that the aggrieved employee seek EEO counseling prior to filing a formal complaint"); Gebhardt v. Chu, No. C 10-2807 MEJ, 2010 WL 5211459, at 8-9 (N.D.Cal. Dec. 16, 2010) (human relations specialist not an agency official logically connected with the EEO process when specialist did not have "EEO" in his title). Additionally, the contact must exhibit an intent to actually begin the EEO complaint process. E.g., Pawloski v. Principi, No. 05-724, 2007 WL 1302430, at *2 n. 3 (E.D.Cal. May 2, 2007) ("The requirement that an aggrieved seek EEO counseling is not satisfied by asking hypothetical questions of an EEO counselor" because the employee must manifest an intent to begin the EEO process). The question in the instant case is whether a phone call to the TSA Ombudsman, the EEOC, or the TSA Human Resources department satisfies the requirement that plaintiff contact an EEO counselor. The cases clearly hold that contact with the agency's designated EEO counselor is not required. But, the cases also have not gone so far as to allow contact with any agency official or any official outside the agency. Here, even assuming plaintiff's phone records were admissible, plaintiff's contacts with an agency ombudsman and human resources department are not contacts with an agency official logically connected to the EEO process. Additionally, contacting the EEOC, an entirely separate agency, is not a contact with the agency at issue. Thus, I agree with defendant first that plaintiff fails to submit admissible evidence on the issue, and second, that even if I considered the evidence, it does not create an issue of fact as to plaintiff's contact with a TSA official logically connected to the EEO process, on or before May 27, 2005. At oral argument, plaintiff argued for the first time that there was good cause for his failure to make the required TSA EEO Counselor contact within the forty-five days allowed by the regulation. Plaintiff contended that good cause exists because he was sixty-five years old at the time. Without more, this is an insufficient basis upon which to find good cause capable of excusing plaintiff's compliance with the regulation. CONCLUSION Defendant's motion to dismiss [12] is granted. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
378 S.W.2d 237 (1964) Lowell K. WOOD, Plaintiff-Respondent, v. Nancy V. WOOD, Defendant-Appellant. No. 31726. St. Louis Court of Appeals, Missouri. April 21, 1964. Rehearing Denied April 29, 1964. 238 Charles M. Shaw, Claude Hanks, Clayton, for plaintiff-respondent. Milton F. Napier, Claude W. McElwee, St. Louis, for defendant-appellant. DOERNER, Commissioner. This is an appeal from a final order and judgment modifying that part of a decree of divorce regarding the custody and support of the parties' minor child. The transcript reveals that the custody of their minor son, Lowell K. Wood, Jr., has been the subject of repeated proceedings between the parties since the original decree of divorce was granted to defendant on January 14, 1959. The view we take of the case makes it unnecessary to dwell at length upon the successive modifications of that decree. It is sufficient to say that by the original decree the custody of the child was awarded to defendant, and certain rights of temporary custody were given to plaintiff. Subsequently, by either contested proceedings, or by stipulations consenting thereto, the original decree with respect to custody and child support was modified by orders made on April 14, 1960; November 3, 1961; and January 11, 1963. The order made on the last mentioned date directed that plaintiff was to have the exclusive and undisturbed custody of the child until the " * * middle of the vacation period of 1963 * * "; defendant was to have custody from the middle of the 1963 vacation period until the middle of the 1964 vacation period, " * and each party to have successive rights of custody alternately thereafter." It was further ordered therein that plaintiff and defendant were to have temporary custody on alternate weekends, from 9:00 A.M. on Saturday to 6:00 P.M. on Sunday, "* * except during summer vacation periods when each party shall have unrestricted and undisturbed custody of said child. * * " Matters thus stood until June 7, 1963, when plaintiff filed a motion to modify the decree, in which he alleged that the health, welfare and educational standing of the child had greatly improved during the time the minor was in plaintiff's custody; that the child desired to remain with plaintiff; that the defendant was emotionally unfit to care for the child; that the environment wherein defendant resided was unsatisfactory and improper for the rearing of a minor child; that the conditions had grown worse since the previous order of court, and that to require plaintiff to surrender custody to defendant would greatly affect the child by seriously impairing his education, welfare, and mental and physical health. The prayer was that plaintiff be granted sole and permanent custody. On June 20, 1963 defendant filed an application for the disqualification of the judge presiding in Division No. 16 of the court, in which division the motion was pending, on the grounds of bias and prejudice on the part of the judge, which defendant stated she had first ascertained on the preceding day; and defendant requested the court to call in another judge to sit in the case. The application was presented and denied on the same day. Thereafter, on July 2, 1963, defendant filed an answer to plaintiff's motion to modify wherein she alleged that the matters stated in the motion had been fully adjudicated by the order of January 11, 1963, and were res adjudicata. A trial was held on July 5, and on July 12, 1963, the court entered an order giving plaintiff permanent custody of the child, and providing that defendant was to have temporary custody at certain specified times. Support money was limited to the month during the vacation period when defendant was to have temporary custody. Following an unavailing motion for a new trial, defendant appealed. 239 The first, and in our opinion the decisive, point raised by defendant is that the court erred in failing and refusing to disqualify himself, and in declining to call in another judge, when so requested by defendant. In support of her argument defendant cites Civil Rule 51.03(b), V.A.M.R. and Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. In that case it was held that a motion to modify a divorce decree is a "civil suit" within the meaning of those words as used in the statute superseded by Civil Rule 51.03; and that a proper and timely application to disqualify should be sustained when filed in such a proceeding. Plaintiff concedes that defendant's application was timely filed and presented, and that it was in proper form. Plaintiff also recognizes the force of the ruling in Hayes v. Hayes, supra. But he seeks to distinguish the instant case from its determinative effect on the grounds that prior to the modification by consent on January 11, 1963 (presumably when a motion was pending), the defendant had disqualified one judge and the plaintiff another; that the various motions to modify were all part of one continuing proceeding or cause of action; and that by Civil Rule 51.03(a) only one change of venue or disqualification may be granted to either party in any one cause of action. Parenthetically, we note that the limitation in Civil Rule 51.03(a) is to one change of venue. Whether the limitation governs disqualifications provided for in 51.03(b) we need not decide. The transcript does not show that either party filed an application to disqualify prior to the entry by consent of the order of January 11, 1963. It would make no difference if it did. A motion to modify a decree of divorce is in the nature of an independent proceeding, and the motion is treated as a petition in an original action. North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061; Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. A claim upon which relief can be granted must be stated in the motion. Wilton v. Wilton, Mo.App., 235 S.W.2d 418; Olson v. Olson, Mo.App., 184 S.W.2d 768. The movant must not only plead, but prove, such a change of condition that the welfare and best interests of the child will be beneficially affected by a modification. Thomas v. Thomas, Mo.App., 357 S.W.2d 208; McCoy v. Briegel, Mo.App., 305 S.W.2d 29. And the order is such a final judgment that on a succeeding motion matters which happened before the prior motion are res adjudicata. Hawkins v. Thompson, Mo. App., 210 S.W.2d 747; Wilton v. Wilton, supra. Being a final judgment, a motion for a new trial is necessary; otherwise appellate review is limited to the record proper. Hayes v. Hayes, supra; Olson v. Olson, supra. From these attributes of a motion to modify, it is apparent that regardless of the number which may be filed successively, each is a separate and independent proceeding, in no way related to or connected with a prior motion. As a matter of fact, the motion under consideration in Hayes v. Hayes, supra, was not the first motion to modify the original decree, but the second. It follows that the court erred in overruling the defendant's application for his disqualification. Accordingly, the judgment should be reversed and the cause remanded for a new trial before another judge, in accordance with the Civil Rules. The Commissioner so recommends. PER CURIAM: The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded for a new trial before another judge, in accordance with the Civil Rules. WOLFE, Acting P. J., ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.	{ "pile_set_name": "FreeLaw" }
187 F.2d 856 NATIONAL LABOR RELATIONS BOARDv.STAR METAL MFG. CO., Inc. In re STAR METAL MFG. CO., Inc., et al. No. 9981. United States Court of Appeals Third Circuit. Argued January 5, 1951. Decided March 6, 1951. Julius G. Serot, Washington, D. C., for appellant. Samuel Abramson, Philadelphia, Pa., for appellees. Before BIGGS, Chief Judge, and MARIS and HASTIE, Circuit Judges. BIGGS, Chief Judge. 1 The National Labor Relations Board petitioned this court for an order adjudging Star Metal Manufacturing Co., Inc., its officers and agents, and specifically its president, Abraham S. Levin and his assistant, Jerome P. Heilweil, in civil contempt of this court by reason of their refusal and failure to comply with and obey a decree of this court filed on June 29, 1949. The Board also requested this court to institute sua sponte a prosecution in criminal contempt against Star Metal, Levin and Heilweil by reason of their wilful and deliberate failure and refusal to comply with and obey the decree of this court referred to. We issued a rule to show cause returnable on January 5, 1951 and on that day in open court Levin and Heilweil appeared personally and by counsel and Star Metal appeared by counsel. Levin and Heilweil personally and by counsel admitted that each of them was in civil contempt and each of them pleaded guilty to being in criminal contempt of this court. Star Metal by its counsel made a similar admission as to its being in civil contempt and by its counsel also pleaded guilty to being in criminal contempt. The court heard testimony on behalf of the respondents and on behalf of the Board respecting the penalties which should be imposed. 2 The respondents clearly were guilty of both civil and criminal contempt. Nonetheless Star Metal, after the contempt proceedings had been commenced, had bargained collectively with the union and had executed a contract with its employees as a result of that bargaining. While the attitude of Levin and Heilweil had been contemptuous, nonetheless they expressed sincere regret of their intransigeance and threw themselves upon the mercy of the court. In view of these facts the court concluded that the sentences of the individual respondents should not include terms of imprisonment. The court was of the opinion, however, that the penalties imposed should be sufficient to bring home to the respondents the seriousness of the charges made against them and the illegal nature of their conduct. Accordingly, the court has concluded that Levin shall be fined in the sum of $1,000 for his criminal contempt and that Heilweil shall be fined in the sum of $100 for his criminal contempt. The respondents shall pay to the National Labor Relations Board the sum of $757.86 which represents expenses necessarily incurred by the Board in connection with the prosecution of the petition in civil contempt, including counsel fees and other expenditures incurred in the investigation, preparation, presentation and final disposition of the petition. 3 A decree will be entered accordingly but it will not be in the precise form requested by the Board. We will not include a paragraph which would compel Star Metal, Levin and Heilweil to purge themselves of their civil contempt by bargaining collectively with Office Employees International Union Local No. 14, A. F. of L. In our decree of enforcement entered on June 29, 1949 we included a permanent mandatory injunction which directed such bargaining. That order remains in force and any future refusal to bargain may be made the subject of later contempt proceedings, if necessary. What the Board in substance seeks in this connection is another and additional mandatory injunction to the same effect as that of June 29. To follow the Board's suggestion would draw us into a procedural quagmire if further contemptuous conduct should be shown in the future. For example if we should include a direction to bargain collectively in our contempt order in addition to that already contained in the June 29 decree, would a future violation be a contempt of the contempt order, a species of contempt in the second degree, or should we ignore the provision in our contempt order and rest punishment for the later contempt upon the provisions of the decree of June 29 alone? We will not complicate a legal situation which is now clear enough.	{ "pile_set_name": "FreeLaw" }
March 26 2013 DA 12-0559 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 76N IN THE MATTER OF: K.M. and R.M. Youths in Need of Care. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause Nos. DN-10-015 and DN-10-016 Honorable Katherine M. Bidegaray, Presiding Judge COUNSEL OF RECORD: For Appellant: Elizabeth Thomas, Attorney at Law, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schultz, Assistant Attorney General, Helena, Montana Anne Sheehy Yegen, Assistant Attorney General, Child Protection Unit, Billings, Montana Submitted on Briefs: February 20, 2013 Decided: March 26, 2013 Filed: __________________________________________ Clerk Justice Patricia O. Cotter delivered the Opinion to the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Mother appeals the order terminating her parental rights to her two minor daughters on the ground that the State failed to make reasonable efforts to assist her in successfully completing her treatment plan. FACTUAL AND PROCEDURAL BACKGROUND ¶3 The Department of Health and Human Services, Child and Family Services Division (CFSD) has been involved with J.L. (Mother) and J.M. (Father) since 2006 when their two older children were removed and permanently placed in kinship foster care. In March 2009, Mother gave birth to R.M. CFSD remained actively involved with the family as a result of multiple reports alleging physical neglect of the newborn. During this time neither parent consistently complied with CFSD’s orders or instructions. In May 2010, K.M. was born. ¶4 In July 2010, Mother and Father went out of town for several days leaving R.M. and infant K.M. with babysitters. Mother, who had a prescription for and regularly used methadone, instructed the babysitter to give liquid methadone to K.M. because she feared 2 the baby would go into withdrawal while she was away and not breast-feeding. The authorities were notified but by that time K.M. had received methadone doses for four days. K.M. was hospitalized and released two days later. Both girls were removed from the home. In August 2010, the children were returned to their parents under CFSD’s Temporary Investigative Authority. ¶5 In March 2011, the children were adjudicated youths in need of care and the State was granted temporary legal custody of the children but they continued to reside in the family home. In May 2011, the District Court approved and ordered treatment plans for Mother and Father. Mother and Father thereafter separated. In August 2011, after CFSD received a corroborated report that Mother was using intravenous drugs, the children were again removed from Mother’s care. In October 2011, Mother’s Treatment Plan was extended to give her more time to complete the required goals and tasks, one of which was reunification with the children. ¶6 In April 2012, the State petitioned for permanent legal custody and termination of both parents’ parental rights on the grounds that the parents had not successfully completed their treatment plans and were unlikely to do so within a reasonable time. ¶7 On July 13, 2012, the District Court conducted the first day of the termination hearing. Father relinquished his parental rights and consequently is not a party to this appeal. Following a full day of testimony, the hearing was continued to August 6, 2012. ¶8 On August 17, 2012, the District Court issued its Findings of Fact, Conclusions of Law, and Order Terminating Mother’s Parental Rights and Granting Permanent Legal Custody to Department, With Right to Consent to Adoption to both children. Mother 3 appeals, arguing the State failed to make reasonable efforts to assist her in successfully completing her treatment plan. Notably, she does not appeal the District Court’s conclusion concerning adjudication of the children as youths in need of care, her failure to comply with her Treatment Plan or her lack of success, or whether her conduct rendering her unfit was likely to change in a reasonable time. Addressing Mother’s allegation that the State failed to assist her in successfully completing the Treatment Plan, we disagree for the following reasons. ¶9 The record indicates that CFSD continued working closely with Mother from shortly after R.M.’s birth in March 2009 until April 2012 when it petitioned for termination. It provided resources to Mother to address her chemical dependency needs, her mental health concerns and her parenting skills. The agency reported that Mother frequently failed to attend meetings, was often uncooperative and belligerent, and continued using drugs. She routinely refused mandatory random UA drug testing or was unavailable for testing. She was witnessed (and videotaped) using intravenous drugs in a public grocery store bathroom. Additionally, she was charged with theft for allegedly pawning stolen items. She failed to maintain consistent contact with her social worker and failed to attend, or arrived late for, many counseling sessions. These failures are not the fault of CFSD; these failures are Mother’s for which she alone is responsible. The agency worked with Mother for two years and concluded that the behavior that rendered her unfit to parent her children showed no signs of improving in a reasonable time. The District Court complied with the applicable statutes, including but not limited to, 4 § 41-3-609(1)(f)(i) and (ii), MCA, and the State met its burden under § 41-3-422(5)(a)(iv), MCA. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. Furthermore, there was no abuse of discretion. ¶11 We affirm. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS 5	{ "pile_set_name": "FreeLaw" }
188 N.W.2d 745 (1971) H. H. FISHER and Bert H. Van de Streek, on behalf of themselves and all other taxpayers of the City of Minot, State of North Dakota, Plaintiffs and Appellants, v. The CITY OF MINOT, a municipal corporation, Defendant and Respondent. Civ. No. 8709. Supreme Court of North Dakota. June 23, 1971. 747 Pringle & Herigstad, Minot, for the plaintiffs and appellants. Bosard, McCutcheon, Kerian & Schmidt, Minot, for the defendant and respondent. PAULSON, Judge. This is an appeal from a taxpayers' class action requesting the district court to enjoin the City of Minot from proceeding with the construction of a municipal parking lot in downtown Minot, and to dissolve the special improvement district which was established to fund the construction of such lot. Two other suits were brought against the City of Minot for the same purposes and were consolidated with the instant case for trial. The action came on before the court without a jury on February 22, 1971, and at the close of the plaintiffs' case the court granted the motion of the City of Minot to dismiss the action. Appellants H. H. Fisher and Bert H. Van de Streek appealed from the judgment dismissing the action and demanded a trial de novo of the entire case in this court. This case arose out of the decision of the City of Minot to construct a large surface parking lot in its downtown area which would cover one-half of a city block. For a considerable period of time prior to the City of Minot's decision to construct this parking lot, numerous newspaper articles and local radio and television programs relating to merchants and downtown property owners who sought additional parking were published and broadcast. The City of Minot is operated under a city council-city manager form of government, with fourteen aldermen, a city manager, and a mayor. The sequence of events pertaining to the action taken by the City of Minot is as follows: On June 1, 1970, the City of Minot adopted a resolution creating Parking Improvement District No. 4. On September 30, 1970, the Minot City Engineer, Burt Peckham, submitted to the Minot city council in writing the figures based upon the engineers' and appraisers' estimates of the costs of such parking district. 748 On October 5, 1970, the Minot city council passed a resolution approving the plans, specifications, and estimates of costs of the project. On this same date, a resolution was also passed declaring the necessity of Parking Improvement District No. 4. On October 7 and on October 14, 1970, the resolution of necessity was published in the Minot Daily News, the official newspaper, declaring the necessity of Parking Improvement District No. 4. The minutes of the city council meeting of November 9, 1970, reveal that the area represented by protests against the improvement proposed for Parking Improvement District No. 4 was only 31.1 per cent of the total assessable square footage in the improvement district. Also, on November 9, 1970, a resolution was passed by the city council which stated that the City of Minot had heard the protesting property owners and had determined that there was an insufficiency of protest with reference to Parking Improvement District No. 4. There are three issues raised on this appeal: (1) Did the City of Minot, in creating Parking Improvement District No. 4, act in an arbitrary, unreasonable, or capricious manner? (2) Are those sections of Chapter 40-22, N.D.C.C., under which the City of Minot proceeded, unconstitutional? (3) Is § 40-22-18, N.D.C.C., in violation of the "one man, one vote" principle enunciated by the United States Supreme Court? The relevant constitutional and statutory provisions are as follows: U.S.Const., Art. XIV, § 1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." N.D.Const., § 13. "* * * No person shall * * * be deprived of * * * property without due process of law." N.D.Const., § 130. "Except in the case of home rule cities and villages as provided in this section the legislative assembly shall provide by general law for the organization of municipal corporations, restricting their powers as to levying taxes and assessments, borrowing money, and contracting debts. Money raised by taxation, loan or assessment for any purpose shall not be diverted to any other purpose except by authority of law. * * " § 40-22-01, N.D.C.C. "Power of municipalities to defray expense of improvements by special assessments.Any municipality, upon complying with the provisions of this chapter, may defray the expense of any or all of the following types of improvements by special assessments: * * "5. The acquiring or leasing of the necessary property and easements and the construction of parking lots, ramps, garages, and other facilities for motor vehicles. "In planning an improvement project of a type specified in any one of the foregoing subsections, the governing body may include in such plans any and all items of work and materials which in its judgment are necessary or reasonably incidental to the completion of an improvement project of such type." § 40-22-08, N.D.C.C. "Improvement districts to be created.For the purpose of making an improvement project of one of the types specified in section 40-22-01 749 and defraying the cost thereof by special assessments, a municipality may create water districts, sewer districts, water and sewer districts, street improvement districts, boulevard improvement districts, flood protection districts, and parking districts, and may extend any such district when necessary. The appropriate special improvement district may be created by ordinance or resolution. The district shall be designated by a name appropriate to the type of improvement for the making of which it is created, and by a number distinguishing it from other improvement districts. Nothing herein, however, shall prevent a municipality from making and financing any improvement and levying special assessments therefor under any alternate procedure set forth in this title." § 40-22-09, N.D.C.C. "Size and form of improvement districtsRegulations governing.Any improvement district created by a municipality may embrace two or more separate property areas. Each improvement district shall be of such size and form as to include all properties which in the judgment of the governing body, after consultation with the engineer planning the improvement, will be benefited by the construction of the improvement project which is proposed to be made in or for such district, or by any portion or portions of such project. A single district may be created for an improvement of the type specified in any one of the subsections of section 40-22-01, notwithstanding any lack of uniformity among the types, items or quantities of work and materials to be used at particular locations throughout the district. The jurisdiction of a municipality to make, finance and assess the cost of any improvement project shall not be impaired by any lack of commonness, unity, or singleness of the location, purpose or character of the improvement, or by the fact that any one or more of the properties included in the district is subsequently determined not to be benefited by the improvement, or by a particular portion thereof, and is not assessed therefor. There may be omitted from a water or sewer district, in the discretion of the governing body, properties within the corporate limits which are benefited by the improvement therein but do not abut upon a water or sewer main, without prejudice to the right and power of the municipality subsequently to assess such properties to the extent and in the manner permitted by law." § 40-22-15, N.D.C.C. "Resolution declaring improvements necessaryException for sewer and water mainsContents of resolution.After the plans, specifications, and estimates for an improvement have been filed and approved, the governing body of the municipality, by resolution, shall declare that it is necessary to make the improvements described therein. Such resolution shall not be required, however, if the improvement consists of the construction or alteration of sewer or water mains, unless it is determined that the cost thereof shall be paid in part as is provided in section 40-22-16. The resolution shall refer intelligibly to the plans, specifications, and estimates, and shall be published once each week for two consecutive weeks in the official newspaper of the municipality." § 40-22-18, N.D.C.C. "Protest bar to proceedingInvalid or insufficient protests.If the governing body finds the protests to contain the names of the owners of a majority of the area of the property included within the improvement district the protests shall be a bar against proceeding further with the improvement project described in the plans and specifications. If the governing body finds the protests to contain the names of the owners of a majority of any separate property area included within the district, such protests shall be a bar against proceeding with the portion of such improvement project, the cost of which is to be assessed in whole or in part upon property within such area, but 750 shall not bar against proceeding with the remainder of the improvement project or assessing the cost thereof against other areas within the district, unless such protests represent a majority of the area of the entire district. If the protests are found to be insufficient or invalid, the governing body may cause the improvement to be made and may contract or otherwise provide in accordance with this title for the construction thereof and the acquisition of property required in connection therewith and may levy and collect assessments therefor." Fisher and Van de Streek primarily rely on the estimated cost of the project and the location of the parking lot in raising the issue as to whether or not the City of Minot had acted in these proceedings in an arbitrary or unreasonable or capricious manner. The estimated cost of the project is $1,287,000, or $8,043.75 per parking space, assuming a maximum of 160 parking spaces in the project. Fisher and Van de Streek introduced into evidence a study on municipal parking projects which revealed that a parking lot should be within 300 feet of an automobile driver's destination in order to attract his maximum patronage, and they further contend that proposed Parking Improvement District No. 4 extends such district for many city blocks beyond the 300 feet recommended for maximum efficiency, as set forth in the study designated as Plaintiffs' Exhibit 2 (parking project study). In rebuttal, the City of Minot urges that Fisher and Van de Streek have failed in the proof of their allegation that the city council of Minot was arbitrary, unreasonable, or capriciousboth as to its procedures and as to its actions with reference to Parking Improvement District No. 4. The City of Minot argues that the downtown merchants and property owners of Minot had been contacting the city council for additional downtown parking, that the parking problem in the downtown area of Minot was a matter of public knowledge, and that extensive publicity had been given to the fact that the downtown property owners and merchants were seeking additional parking facilities. Fisher and Van de Streek concede that the City of Minot has complied with the procedural steps required by the applicable sections of Chapter 40-22, N.D.C.C. The trial court included in its findings that the City of Minot had followed the correct statutory procedure: in the establishment of Parking Improvement District No. 4; in the preparation of plans, specifications, and estimates of costs for such parking district; in the adoption of such plans, specifications, and estimates of costs by the city council; in the adoption of the resolution of necessity and in the publication of such resolution; in the public hearing on protests in connection with such parking district; and in the determination by the city council that such protests as were registered were insufficient. The trial court also found that the actions of the city council in the course of establishing Parking Improvement District No. 4 were not arbitrary, unreasonable, or capricious, nor did such actions constitute an abuse of discretion on the part of the city council; and that, to the stage of the proceedings that the City of Minot has presently reached in the establishment of Parking Improvement District No. 4, the Minot city council has exercised its legislative power as a municipal corporation and this legislative power has been properly used by the city council of the City of Minot. This court has repeatedly held that where an appellant demands a trial de novo and a retrial of the entire case in an appeal from an action tried to the court without a jury, the findings of the trial court will be given appreciable weight by the Supreme Court, especially where such judgment is based upon the testimony of witnesses who appeared in person before the trial court. Koistinen v. Farmers Union Oil Company of Rolla, 179 N.W.2d 327 (N.D.1970); Renner v. Murray, 136 N.W. 2d 794 (N.D.1965); Goheen v. Gauvey, 122 N.W.2d 204 (N.D.1963); Strobel v. 751 Strobel, 102 N.W.2d 4 (N.D.1960). A review of the record reveals that the evidence amply supports the findings of the trial court that the City of Minot did not act in an arbitrary, unreasonable, or capricious manner in the proceedings thus far completed with reference to Parking Improvement District No. 4. Fisher and Van de Streek have contended that those statutes in Chapter 40-22, N. D.C.C., under which the City of Minot proceeded, are unconstitutional and void, in that such statutes deny Fisher and Van de Streek due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States and of § 13 of the Constitution of the State of North Dakota. There is no question among the party litigants that the City of Minot, in proceeding under the applicable sections of Chapter 40-22, N.D.C.C., was acting in compliance with these sections which were enacted by the North Dakota Legislature to enable a city to create special improvement districts, including parking lot improvement projects. The United States Supreme Court affirmed the opinion of the North Dakota Supreme Court in Webster v. City of Fargo, 181 U.S. 394, 21 S.Ct. 623, 45 L.Ed. 912, 916 affirming 9 N.D. 208, 82 N.W. 732, 56 L.R.A. 156 (1900). In Webster v. City of Fargo, supra 181 U.S. at 395, 21 S.Ct. at 624, the United States Supreme Court held: "But we agree with the supreme court of North Dakota in holding that it is within the power of the legislature of the State to create special taxing districts, and to charge the cost of a local improvement, in whole or in part, upon the property in said districts, either according to valuation or superficial area or frontage, and that it was not the intention of this court, in Norwood v. Baker [172 U.S. 269, 19 S.Ct. 187, 43 L. Ed. 443] to hold otherwise." The legislature, in exercise of its general powers, may direct, subject to constitutional restrictions, that the cost of local improvements be assessed upon property benefited, and this power may be delegated to municipalities. Ellison v. City of LaMoure, 30 N.D. 43, 151 N.W. 988 (1915). See Murphy v. City of Bismarck, 109 N.W.2d 635 (N.D.1961); Stark v. City of Jamestown, 76 N.D. 422, 37 N.W.2d 516 (1949); State ex rel. Shaw v. Frazier, 39 N.D. 430, 167 N.W. 510 (1918). Fisher and Van de Streek admit that notice was given by publication of the resolution of necessity, but they assert that such notice was insufficient, and that personal service should have been employed, especially where both Fisher and Van de Streek were residents of the City of Minot. Fisher and Van de Streek contend that the following cases hold that under the Fourteenth Amendment to the United States Constitution, notice by publication is not sufficient to terminate legal rights when the name and address of the individual to whom said notice is directed are readily available to the party sending the notice, and the notice should have been sent to those entitled to receive notice: Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962). In the instant case, at this stage of the proceedings for the establishment of Parking Improvement District No. 4, the resolution of necessity was published pursuant to § 40-22-15, N.D.C.C., and the personal rights or the property rights of Fisher and Van de Streek have not been in any way jeopardized, nor have they been deprived of any constitutional rights. This court, in syllabus paragraph 9, in State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514, 515, 519 (1953), held: "In ascertaining the intent and general purpose as well as the meaning of a constitution or a part thereof it should be 752 construed as a whole, and all doubt as to the constitutionality of a statute including doubts arising from the constitution as well as from the statute should be resolved in favor of the validity of the statute and the statute will be upheld unless it clearly appears that it violates some provision of the constitution." The Supreme Court of Nebraska in Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157, 158 (1963), in syllabus paragraph 4, held: "In this jurisdiction an opportunity to be heard with right of review upon the question of assessments for benefits is all that is required to satisfy the due process provisions of the Constitutions of Nebraska and the United States." We adopt the reasoning of the Nebraska court and therefore conclude that Fisher and Van de Streek were not deprived of any constitutional rights by the City of Minot when it gave notice to the property owners in the assessment district by publication of the resolution of necessity pursuant to the terms and provisions of § 40-22-15, N.D.C.C. The City of Minot contends that Fisher and Van de Streek's challenge to the validity of the proceedings is premature because it was made prior to the completion of a list of the benefits and assessments of the project by the special assessment commission and before confirmation by the City of Minot and certification to the city auditor's office. This court held, in syllabus paragraphs 3 and 14 of Murphy v. City of Bismarck, supra 109 N.W.2d at 635: "3. Among the legislative grants of power to cities is the power to create improvements by the special-assessment method as set forth in Chapter 40-22, N.D.C.C.; and Section 40-22-08, N.D. C.C., in conjunction with Section 40-04-01(8) and cognate statutes, expressly grants power to create street-improvement districts to widen, pave, and otherwise improve streets and avenues. Those statutory provisions which are mandatory and not merely directory, prescribing the method or procedure to be followed, must be strictly observed. "14. A judicial review of the question of benefit or detriment to the abutting property owners is premature until after the special-assessment commission has caused to be made a complete list of the benefits and assessments and has confirmed the list for certification to the office of the city auditor or the village clerk, as the case may be." In the instant case, Fisher and Van de Streek have failed in their burden of proof to show that they have been prejudiced in the proceedings thus far completed by the City of Minot because the only notice required by § 40-22-15, N.D.C.C., is the publication of the resolution of necessity. Mr. Fisher further buttressed the position of the City of Minot by the following testimony: "[by Mr. Fisher] A Well, it was a program that was started years before and created these other lots and we all became a part of these lots and they proved out their function and very evident there was more need if the area was to survive. * * * "Q There wasn't anything hidden by the City Council, was there? "A None whatsoever. "Q Would you repeat your answer? "A None whatsoever." Furthermore, the City of Minot, in setting up the special improvement district, has not reached the point where it is actually levying assessments against particular property. Thus, in accordance with our decision in Murphy v. City of Bismarck, *753 supra, we hold in the instant case that Chapter 40-22 is constitutional. In raising the issue of whether or not § 40-22-18, N.D.C.C., is in violation of the "one man, one vote" principle enunciated by the United States Supreme Court decision, Fisher and Van de Streek were able to establish that, of the 270 property owners in the geographic area comprising Parking Improvement District No. 4, there were only 95 protesting property owners. Thus, the number of protesters was not only less than a majority of the property owners, but represented less than the majority of the area of the property within the parking district, as required by § 40-22-18, N.D.C.C. Therefore, since the number of protesters is less than a majority, Fisher and Van de Streek have failed in their burden of proof to bring themselves within the doctrine of the "one man, one vote" rule and have accordingly failed to demonstrate that they have suffered harm as a result of § 40-22-18, N.D.C.C., because, even if the "one man, one vote" standard should prevail, the number of protesters is insufficient to bar the completion of the improvement project. It is our opinion that we cannot further extend the doctrine of "one man, one vote", as enunciated in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), to cover the instant case. Wallegham v. Thompson, 185 N.W.2d 649 (1971). Fisher and Van de Streek urge that the trial court erred in refusing to admit into evidence Plaintiffs' Exhibits 7, 8, and 9 over the objections of the City of Minot, which exhibits are projections of the tax burden which would be incurred by the individual downtown businesses if the Parking Improvement District No. 4 project is completed. The basis for the objections by the City of Minot to such exhibits was that the tax projections were not prepared by the City of Minot and therefore were of no probative value. Whether it was error is immaterial in this case, in light of what we have said in this opinion. For the reasons stated in the opinion, the judgment of the trial court is affirmed. STRUTZ, C. J., and KNUDSON, TEIGEN and ERICKSTAD, JJ., concur.	{ "pile_set_name": "FreeLaw" }
510 F.Supp. 351 (1980) Harjinder Kaur SINGH and Amar J. Macker, Plaintiffs, v. ATTORNEY GENERAL, Defendant. Civ. A. No. 80-1082. United States District Court, District of Columbia. December 24, 1980. 352 Charles Gordon, Washington, D. C., for plaintiffs. Eric A. Fisher, General Litigation & Legal Advice Section, Crim. Div., U. S. Dept. of Justice, Washington, D. C., for defendant. OPINION HAROLD H. GREENE, District Judge. This action involves the denial of a petition for permanent residency status under a sixth preference immigration classification. Such a classification is established by section 203(a)(6) of the Immigration and Nationality Act, as amended,[1] which provides that visas shall be made available "to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States." Although the Secretary of Labor found Ms. Singh qualified, the Attorney General, acting through the Immigration and Naturalization Service,[2] denied the petition, and this action followed. I Plaintiff Singh is a citizen of India who entered the United States as an employee of a diplomatic official under A-2 nonimmigrant alien status.[3] Subsequently, she sought adjustment to permanent residency status under section 203(a)(6) on the basis of a petition filed on her behalf by plaintiff Macker, for whom Singh is currently employed as a live-in domestic worker. The petition included a labor certification issued by the Department of Labor, as required by the regulations. In spite of this certification, INS, after conducting its own investigation, determined that Singh had not established that she possessed the minimum qualification required for the position and that, accordingly, she was not entitled to a sixth preference classification. Specifically, it appeared that Macker had listed on the appropriate Labor Department's Job Offer for Alien Employment form that the domestic worker he intended to employ required one-year's prior experience. On the Statement of Qualifications of Alien form, also filed with the Labor 353 Department, Singh listed two episodes of relevant work experience: nine months as a maid in the Indian Embassy in Washington and twenty-nine months as a domestic worker in a private home in India. The Labor Department certification of the forms for submission to INS represented a finding that under the terms of the job offer, workers were not available in the United States for the position, and that the hiring of an alien would therefore not have an adverse effect on domestic wages. The certified forms were submitted to INS by plaintiff with a petition for preference status classification. INS investigated Singh's prior experience through the American Embassy in New Delhi, and it determined that Singh had not adequately established her employment in India and hence had not demonstrated that she possessed the one-year work experience. Although plaintiff submitted further affidavits to document her work in India and offered explanations for the information obtained by the American Embassy, INS upheld its earlier determination and denied the petition. After exhausting their administrative appeals, the two plaintiffs filed this action. II The central legal issue presented for resolution concerns the division of authority between the Department of Labor and the Attorney General, acting through the INS, with respect to sixth preference immigration petitions. Plaintiffs assert that, the decision on the issuance of a labor certification having been committed to the jurisdiction of the Labor Department, INS had no independent authority to deny a petition once Labor had granted a certification. The INS argues, in effect, that a certification by the Secretary of Labor is merely a necessary prerequisite to a sixth preference visa petition but is not sufficient by itself. In INS' view, it has the authority independently to determine whether an applicant has met the qualification requirements set forth in the application, and that it also possesses the concomitant authority to deny a visa petition based upon its own negative determination. Both sides rely heavily upon a fairly recent decision of the Court of Appeals for this Circuit Castaneda-Gonzalez v. Immigration and Naturalization Service, 564 F.2d 417 (D.C.Cir.1977). In that case, the court was called upon to construe section 212(a)(14) of the Immigration and Nationality Act[4] which excludes from admission into the United States, Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. The exclusion of aliens under this paragraph shall apply to [sixth] preference immigrant aliens.... Relying upon the statutory language as well as the legislative history, the court concluded that, under this statutory provision, INS could not exclude an alien who had received a certification from the Department of Labor simply because, in the opinion of INS, the certification was based on an inaccurate factual basis.[5] The certification, said the court, is binding upon the Attorney General and the INS, and "an alien who has a labor certificate which has not been invalidated by the Secretary of Labor may not be deported as an alien excludable under subsection 212(a)(14)." 564 F.2d at 424 n. 14. 354 On the basis of that decision and that language plaintiff argues that INS has here overstepped its legitimate authority, and, indeed, a decision of the District Court for the District of Massachusetts lends substantial support for that contention. In Stewart Infra-Red Commissary v. Coomey, 485 F.Supp. 345 (D.Mass.1980), the Court held, on the authority of Castaneda, that INS is without authority to deny a sixth preference visa petition on the ground that the alien did not possess the qualifications for the position when the qualifications have been certified by the Labor Department. This Court, however, is unable to agree with the reasoning in Stewart Infra-Red, and it views the situation as somewhat more complex than might appear from the surface of plaintiff's set of arguments and the Castaneda result. The alien in Castaneda was not governed by sections 203 and 204 of the Act,[6] because at the time of his entry immigrants from countries in the western hemisphere were not subject to the preference system. See Castaneda, supra, 564 F.2d at 428 n. 26. However, the application of the instant plaintiff, who is an immigrant from Asia,[7] is governed by sections 203 and 204 as well as by subsection 212(a)(14). Section 204(b) of the Act[8] provides: After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 203(a) ... (6), the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made ... is eligible for a preference status under section 203(a), approve the petition. ... On its face, this section, unlike section 212(a)(14), does not vest plenary authority in the Secretary of Labor, but provides that "the Attorney General shall [depending upon certain conditions] approve the petition." Indeed, the Court of Appeals in Castaneda made a pointed distinction between the two sections, as follows (564 F.2d at 429): A comparison of the statutory provisions governing preference status decisions and subsection 212(a)(14) supports our holding that the Attorney General does not have legislatively delegated authority to review the basis for the Secretary of Labor's certification decision. With respect to petitions for preference status which require assessment of either an alien's qualifications for an occupation or the state of the labor supply in the United States, section 204(b) directs the Attorney General to `[consult] with the Secretary of Labor' but nonetheless clearly provides that the Attorney General, himself, shall determine whether an alien is eligible for a preference under section 203(a). Id., 8 U.S.C. § 1154(b) (1970). This is further evidence of congressional sensitivity to the interplay of administrative authority which permeates the immigration laws, and demonstrates that, where Congress sought to involve the Department of Labor simply as an enforcement aid to the Attorney General in areas of its expertise, the legislators did not rely on any implied power of the Attorney General but provided an unambiguous expression of their intent. Subsection 212(a)(14) does not refer to `consultation' with or `initial screening' by the Secretary of Labor with respect to substantive issues which it or any other section of the Act directs the Attorney General to decide. It simply states that immigrant aliens seeking entry to perform labor are to be excluded `unless the Secretary of Labor has determined and certified ....' 8 U.S.C. § 1182(a)(14) (1970). Defendant relies upon this language in Castaneda as compelling a decision in its favor. However, again, further inquiry beyond 355 the bare bones of the court's language is required. III It is clear from a reading of the congressional committee reports and the floor debate on section 204(b) that Congress intended the Labor Department to exercise primary authority over the certification of applications for sixth preference classification. The effect of immigration provisions on domestic employment was intensely debated when Congress passed amendments to the Immigration and Nationality Act in 1965. Sponsors of the legislation repeatedly named the Labor Department's certification procedure as the mechanism for the protection of domestic employment conditions.[9] Furthermore, the Senate Committee Report, S.Rep.No. 89-748, 89th Cong., 1st Sess., stated at 15, U.S.Code Cong. & Admin.News 1965, at 3328, 3334: The primary responsibility is placed upon the intending immigrant to obtain the Secretary of Labor's clearance prior to the issuance of a visa.... The certification must be obtained in individual cases before a visa may be issued to the intending immigrant. The Department of Labor should have no difficulty in adapting to this new procedure inasmuch as the Department ... presently determines availability of domestic workers and the standards of working conditions.[10] The House Committee Report, H.R.Rep.No. 89-745, 89th Cong., 1st Sess., at 14, 21 explains the operation of section 212(a)(14) as applied to sixth preference applications in terms similar to those of the Senate Committee. In its explanation of section 204, the House Committee did not even discuss sixth preference classifications except to mention (at p. 21) the requirement that the Attorney General report to Congress the basis for each such petition granted. Thus, the committee reports contain no suggestion that the amendments were intended to transfer basic authority from the Labor Department to the Attorney General.[11] Comments on the floor of both houses of Congress buttress this conclusion. For example, Senator Hart, a leading member of the Subcommittee on Immigration of the Senate Committee on the Judiciary, stated during the floor debates (111 Cong.Rec. 24239 (1965)) It is my understanding that when an immigrant seeks admission under these categories as special immigrants or preference immigrants and a determination by the Secretary of Labor is required, the Secretary will make a certification in the case of the individual immigrant. He must ascertain the prospective immigrant's skill and will match those skills with the employment and manpower reports.... On the basis of such an analysis the Secretary will be in a position to meet the requirement of the law, and provide the type of employment safeguards sought in the legislation. Chairman Celler of the House Judiciary Committee, the floor manager of the bill, likewise noted (111 Cong.Rec. 21758 (1965)): The bill provides for regulatory discretion which resides with the Secretary of Labor in imposing conditions to keep out immigrants who would take the work away from Americans or depress wages and working conditions. And Representative Gilbert, a member of the House Subcommittee on Immigration stated (111 Cong.Rec. 21770 (1965)): The Secretary of Labor is held responsible for the certifying of labor shortages 356 which this provision is meant to remedy.... [I]f there appears a shortage of labor which Americans cannot fill and of which there is an abundance abroad, the Secretary can take action to satisfy the need.[12] The conclusion that the Secretary of Labor is to deal with the question of immigrant skills in relation to the American labor market is the only sensible one from an administrative viewpoint. As noted, under the 1965 amendments to the Immigration and Nationality Act, immigrants from the western hemisphere, unlike those from eastern hemisphere countries, were not subject to preference classification and hence were governed by section 212(a)(14) without reference to section 204(b).[13] However, whatever may be the effect of that difference in other respects, Congress made no distinction in regard to the impact of these two sets of immigrants on the American labor market: both were to be admitted only if there would be no impact on that market. Without specific indicia of a congressional intent to that effect, it would make no sense to construe the statute to provide that job qualifications of immigrants from the western hemisphere are to be reviewed solely by the Labor Department, while those of immigrants from the eastern hemisphere are to be subject also to the determination of the Attorney General. Such an awkward, indeed irrational, scheme would be attributed to Congress only on the basis of far clearer congressional purpose than is apparent here. As the Court of Appeals for the First Circuit observed in following Castaneda in a section 212(a)(14) case, "[a]n immigrant's qualifications for a job may well be the exclusive concern of the Secretary of Labor." Spyropoulos v. Immigration and Naturalization Service, 590 F.2d 1, 3 (1st Cir. 1978). On the basis of the legislative record, it appears that Congress intended the Secretary of Labor, not the Attorney General, to exercise routine discretion in the determination of sixth preference classification applications. IV The two statutory provisions and the apparent legislative intent are best reconciled by a construction which vests primary authority over labor qualifications in the Secretary of Labor, with the Attorney General retaining the authority to overrule the Secretary, after consultation with him, for any possible abuse of discretion. The statute itself, 8 U.S.C. § 1154(b) so indicates: After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a [preference] status ..., the Attorney General shall, if he determines that the facts stated in the petition are untrue and that the alien in behalf of whom the petition is made ... is eligible for a preference status ..., approve the petition.... The Castaneda court, although it was dealing specifically with a different statutory provision, evidences a similar approach to problems of administration. The court there observed that the Attorney General retains the responsibility to determine whether the issuance of labor certification by the Secretary of Labor constitutes an abuse of that discretion, stating (564 F.2d at 432-33): If the [Immigration and Naturalization] Service proves that a labor certification was based on the misrepresentation of a fact, which if correctly stated would conclusively demonstrate an adverse impact on wages or working conditions or the availability of American workers, we would find that the Secretary of Labor `could not have granted' a certificate under the correct facts and hold that any 357 certificate based on that misrepresentation [was] invalid under the Secretary's regulation. In the instant case, INS determined that the plaintiff-applicant, Singh, did not qualify for the job offered by the plaintiff-employer, Macker, because she had not adequately documented her satisfaction of the one-year minimum prior work experience required for the job by Macker.[14] It is not contested that Singh had nine months of relevant work experience. The record reveals no attempt by INS to consult with the Department of Labor to determine whether domestic workers with nine months of experience were willing and available to take Macker's job and, thus, whether Singh would be taking a job away from an American worker. Similarly, INS appears to have made no determination on its own that issuance of a visa to Singh would hurt domestic employment opportunities. The record reveals simply a purely mechanical approach by the Immigration and Naturalization Service: the job description requires one year; the applicant has proven only nine months; petition denied. Indeed, in almost Kafkaesque fashion, the government first concedes that Singh is clearly qualified for the job today (having been working as a domestic in the Macker household throughout the period of administrative proceedings and litigation), and then suggests that "nothing prevents [her] from filing the necessary applications," provided she first returns to India.[15] If Singh and Macker were to dismiss this suit and file a new application, final action could be several more years away. In the absence of any indication that Macker's employment of Singh adversely affects anyone else's job opportunities, it is difficult to understand why Singh should be relegated to India and Macker prevented from employing her during the interim. This insensitivity to the careful balancing of interests of potential immigrants, potential employers, and American workers envisioned by the immigration laws may be said to confirm the wisdom of the legislative decision to commit determinations of this kind to the Department of Labor. In any event, that is where the Congress decided jurisdiction should be. V Even if it be assumed that the Attorney General has the authority unilaterally to override the certification of the Secretary of Labor, the Court would have to reverse the Attorney General's denial of the visa petition. If the Attorney General and the Immigration and Naturalization Service do have discretion after a labor certification is issued to weigh evidence to determine whether "the facts stated in the petition are true," and to determine whether "the alien ... is eligible for a preference status," the Department of Justice must itself exercise this authority rather than to delegate its exercise to someone else. Yet that is precisely what occurred here. The denial of sixth preference status was based on the INS conclusion that Singh had not satisfactorily established her employment as a domestic in India. This determination resulted from an investigation by an employee of the American Embassy in New Delhi who could not obtain corroboration of Singh's claimed experience. After receiving a copy of the adverse report, Singh provided new affidavits from her alleged employer in India and from the individuals apparently interviewed by the Embassy investigator in India, corroborating her employment claim and explaining the possible source of inconsistent and contradictory evidence from the investigation. As *358 a result of this additional documentation, INS requested the American Embassy in New Delhi to conduct another investigation into the claimed work experience. The American Embassy, however, declined to do so, citing the conflicting evidence and concluding, Embassy is convinced that subject's adjustment of status is based on an accommodation work experience certificate given by a family friend. In view of above we feel that interviewing interested parties again would not be likely to be productive, ....[16] In spite of its earlier determination that further investigation was necessary to reconcile the conflicting evidence, INS thereupon proceeded to deny the petition, citing the adverse information contained in the earlier Embassy report.[17] In short, by instructing the Embassy to investigate Singh's explanations but by then accepting the Embassy's determination that no further investigation was warranted, INS in effect delegated its discretion to the American Embassy in New Delhi. This de facto delegation of discretion to the American Embassy was clearly an improper abuse of discretion. Having made the determination initially that further investigation was necessary in order to confirm or to refute Singh's affidavits, INS could not legally defer to the conclusory opinions of an officer in the Embassy that various affidavits were perjurious. VI For the reasons stated, Court finds that the denial of plaintiffs' sixth preference classification petition by defendant was improper and must be vacated. Under some circumstances, given the holding of this Opinion, the Court might have ordered the case remanded to INS for a determination of whether Singh qualifies for a sixth preference status. If the Court is correct, however, in its view that the Attorney General has no general authority independently to override the Secretary of Labor's issuance of a labor certificate, an open remand would obviously be improper. Moreover, even if that conclusion were incorrect, such a remand would not be appropriate. The American Embassy in India has already determined that it cannot or will not seek further evidence. Thus, the sworn statements submitted on behalf of plaintiff and the certification of the Department of Labor stand unrebutted and, in all likelihood, unrebuttable. In view of Singh's obvious and admitted eligibility for admission now, nothing would be gained by keeping Singh's immigration status further in doubt. Therefore, the Court in a separate Order of this date remands the petition to the Immigration and Naturalization Service with instructions that the visa petition shall be approved. NOTES [1] 8 U.S.C. § 1153(a)(6). [2] Both the Attorney General and the Immigration and Naturalization Service will hereafter be generally referred to as the INS. [3] See 8 U.S.C. § 1101(a)(15)(A)(ii). [4] 8 U.S.C. § 1182(a)(14). [5] The court agreed that, under 8 U.S.C. § 1182(a)(19), INS could refuse to grant a visa to an alien who willfully misrepresented any material facts in his visa petition. 564 F.2d at 425. [6] 8 U.S.C. §§ 1153 and 1154 respectively. [7] In 1976, the immigration laws were amended, and the distinction between western and eastern hemisphere immigrants was abolished. All immigrants are now governed by sections 203 and 204, as well as 212(a)(14). See Castaneda, supra, 564 F.2d at 428 n. 26. [8] 8 U.S.C. § 1154(b). [9] See, e. g., 111 Cong.Rec. 21586, 21758 (1965) (Rep. Celler). [10] Although the intent is not precisely clear, the phrase "standards of working conditions" is most likely a reference to the matching of individuals' qualifications and job requirements, especially when interpreted in light of the emphasis on individual determinations. [11] The only change in procedure that may be said to have been clearly intended was that the burden of demonstrating the existence of no adverse impact on domestic employment was placed on the applicant, and the Labor Department was at the same time relieved of the burden of showing the opposite. See, e. g., 111 Cong.Rec. 21767, 21779 (1965). [12] More specific elucidation of the intended roles of the Labor Department and the Attorney General regarding sixth preference classifications is absent from the floor debate. All of the comments refer to the safeguard provided to domestic labor by the requirement that the Secretary of Labor certify requests for alien employment before the issuance of visas. See, e. g., 111 Cong.Rec. 21586, 21767, 21771, 21785, 21791, 21793, 21815, 24227, 24442, 24500, 24546-47, 24564, 24763 (1965). [13] See note 7 supra. [14] This approach is particularly puzzling since the one-year provision was written in by plaintiff's employer himself, not the government. If Macker had stipulated nine months as the minimum experience requirement for the job, in all likelihood he would have received certification from the Labor Department on that basis. Singh would then have passed the scrutiny of INS, and the adjustment of status would have been granted without incident years ago. [15] Memorandum of Law in Support of Defendant's Motion for Summary Judgment, p. 9. INS' order that Singh leave the country was stayed pending the disposition of the instant action. [16] Certified Administrative Record Deportation Proceedings, Harjinder Kaur Singh, Immigration and Naturalization Service File No. A21 706 714, at 33. [17] No reference was made to the affidavits provided by Singh explaining claimed inaccuracies in the Embassy report. INS simply repeated the unsubstantiated conclusions contained in the Embassy's refusal to investigate further: The letter of recommendation was evidently signed as an accommodation to help the beneficiary immigrate to the United States. In accordance with the investigative report and the derogatory information, it is the intention of this Service to deny your petition." Certified Administrative Record at 31.	{ "pile_set_name": "FreeLaw" }
No. 116,764 IN THE COURT OF APPEALS OF THE STATE OF KANSAS DAVID L. WASINGER, d/b/a ALLEGIANT CONSTRUCTION & DESIGN, and DAVID L. WASINGER, Personally, Appellants, v. ROMAN CATHOLIC DIOCESE OF SALINA IN KANSAS; ST. MARY QUEEN OF ANGELS PARISH; ST. MARY QUEEN OF ANGELS PARISH COUNCIL; and MICHAEL ELANJIMATTATHIL, Individually, Appellees. SYLLABUS BY THE COURT 1. Mediation is a term of art defined by K.S.A. 5-502(f) as "the intervention into a dispute by a third party who has no decision making authority, is impartial to the issues being discussed, assists the parties in defining the issues in dispute, facilitates communication between the parties and assists the parties in reaching resolution." 2. Arbitration is a term of art defined by K.S.A. 5-502(g) as "a proceeding in which a neutral person or panel hears a formal case presentation and makes an award, which can be binding or nonbinding upon the parties relative to a prior agreement." 3. The concept of binding mediation is inconsistent with the definition for mediation under the Kansas Dispute Resolution Act, K.S.A. 5-501 et seq. 1 4. When a contract calls for mediation, the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (2012), and the Kansas Arbitration Act, K.S.A. 5-401 et seq., do not apply. 5. Failure on the part of the appellee to cross-appeal an issue decided by the district court cannot be raised before this court. 6. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Appeal from Russell District Court; MIKE KEELEY, judge. Opinion filed November 17, 2017. Reversed and remanded. John T. Bird and Todd D. Powell, of Glassman, Bird, Brown & Powell, LLP, of Hays, for appellants. Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellees. Before STANDRIDGE, P.J., HILL and SCHROEDER, JJ. SCHROEDER, J.: David L. Wasinger d/b/a Allegiant Construction and Design (Wasinger) appeals the district court's determination the dispute resolution clause providing for mediation in his construction contract with the Roman Catholic Diocese of Salina (RCDS) should be applied as a binding arbitration agreement. He also argues the district court prematurely granted summary judgment because material facts were in 2 dispute. We find Wasinger's arguments persuasive. We reverse and remand with directions. FACTS In October 2014, Wasinger entered into a contract with RCDS to design and construct a parish rectory for St. Mary Queen of Angels Church in Russell. The contract contained a dispute clause requiring the parties to submit to "binding mediation" if disputes arose that defied informal resolution. The clause also provided the mediator the power to "render a final decision on those unresolved items" at the end of the mediation. A dispute arose early in the construction process. The parties proceeded to mediation and the mediator issued a final decision. Wasinger did not agree with the mediator's decision and filed a mechanic's lien on the property in August 2015. In June 2016, he filed a motion to foreclose on the mechanic's lien and included additional causes of action for improper use of copyrighted design plans as well as a claim for defamation based on comments made by a priest, Michael Elanjimattathil, during a mass at St. Mary Queen of Angels Church. RCDS filed a motion for summary judgment arguing the dispute clause was actually an arbitration provision and the mediator's decision was a binding arbitration award. Wasinger responded, arguing the dispute clause reflected the parties' desire to resolve issues through mediation but did not preclude litigation if the mediation failed to reach an amicable result for both parties. Alternatively, he argued the language of the dispute clause was ambiguous. The district court heard oral arguments on RCDS's motion for summary judgment and subsequently issued a memorandum decision. It held the contract did not require arbitration; however, it found "the language as set out in the contract indicates the parties intended to have binding mediation and a final solution established by the mediator." The district court dismissed Wasinger's claims for 3 foreclosure of the mechanic's lien and improper use of the design plans and affirmed the mediator's final decision. With respect to Wasinger's defamation claim against Elanjimattathil, the district court found the claim was barred because Wasinger failed to raise the issue during mediation. The district court also determined, based on competing affidavits as to where the materials for the building project came from, the contract involved interstate commerce and therefore "trigger[ed] the Federal Arbitration Act, [9 U.S.C. § 1 et seq.,] which pre-empts [sic] the Kansas Arbitration Act [K.S.A. 5-401 et seq]." With the contract involving interstate commerce, the district court determined Wasinger had knowledge of the defamatory statements by Elanjimattathil and should have raised his claim against Elanjimattathil during mediation because the Federal Arbitration Act does not preclude tort claims from being resolved by arbitration, whereas the Kansas Arbitration Act does. Accordingly, the district court found Wasinger had waived the defamation claim and dismissed it. ANALYSIS Mediator's Decision Cannot Be Binding Wasinger argues the dispute resolution clause did not make the mediator's final decision binding upon the parties or otherwise preclude further litigation of disputed issues. He asserts binding mediation is not recognized by Kansas caselaw, nor is it consistent with the plain meaning of mediation. He contends the dispute clause should be interpreted as requiring the parties to submit to mediation as a prerequisite to filing suit. RCDS responds the contract provided the mediation process and the resulting decision was to be the final answer to resolve the parties' dispute. We find Wasinger's argument persuasive. 4 Appellate courts exercise unlimited review over the interpretation and legal effect of written instruments, and the appellate court is not bound by the lower court's interpretation of those instruments. Prairie Land Elec. Co-op v. Kansas Elec. Power Co- op, 299 Kan. 360, 366, 323 P.3d 1270 (2014). The question of whether a written instrument is ambiguous is a question of law subject to de novo review. See Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 964, 298 P.3d 250 (2013). "'The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.' [Citations omitted.]" Stechschulte v. Jennings, 297 Kan. 2, 15, 298 P.3d 1083 (2013). "An interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four corners. The law favors reasonable interpretations, and results that vitiate the purpose of the terms of the agreement to an absurdity should be avoided." Levin v. Maw Oil & Gas, 290 Kan. 928, Syl. ¶ 2, 234 P.3d 805 (2010). "'It is the duty of courts to sustain the legality of contracts in whole or in part when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and technical legal grounds for defeating their intended purpose. . . . [T]he paramount public policy is that freedom to contract is not to be interfered with lightly.' [Citations omitted.]" Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, 770, 112 P.3d 81 (2005). "'In placing a construction on a written instrument, reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided. The meaning of a contract should always be ascertained by a consideration of all pertinent provisions and never be determined by critical analysis of a single or isolated provision.' [Citations omitted.]" In re Estate of Einsel, 304 Kan. 567, 581, 374 P.3d 612 (2016). Here, we are called upon to apply and interpret the parties' mediation-based dispute clause which states, in pertinent part: 5 "Mindful of the high cost of litigation, not only in dollars, but also in time and energy, the parties intend to and do hereby establish the following out-of-court alternate dispute resolution procedure to be followed in the event any controversy or dispute should arise out of, or relating to this contract or relating to any change orders or other changes or addendums to this contract. .... "If this meeting does not produce a resolution, the parties agree to submit to binding mediation. Bieberly Architects, overseeing architect of the project, will be the single mediator. Both parties acknowledge that if there is one or more disputed items that remain unresolved at the end of the mediation, the mediator will render a final decision on those unresolved items. A Mediation Agreement shall be written and signed by the parties indicating the terms and conditions of the issues upon which the parties have come to an agreement." (Emphasis added.) The key term at issue in this provision is "binding mediation." The concept of binding mediation is inconsistent with Kansas caselaw and the Kansas Dispute Resolution Act, K.S.A. 5-501 et seq. (KDRA). See City of Lenexa v. C.L. Fairley Constr. Co., 245 Kan. 316, 323-24, 777 P.2d 851 (1989). To resolve this conflict, it is necessary to look at the terms used in the dispute clause and the KDRA for their respective definitions.  K.S.A. 5-502(e) defines "dispute resolution" as "a process by which the parties involved in a dispute voluntarily agree or are referred or ordered by a court to enter into discussion and negotiation with the assistance of a neutral person."  K.S.A. 5-502(f) defines "mediation" as "the intervention into a dispute by a third party who has no decision making authority, is impartial to the issues being discussed, assists the parties in defining the issues in dispute, facilitates communication between the parties and assists the parties in reaching resolution." 6  K.S.A. 5-502(g) defines "arbitration" as "a proceeding in which a neutral person or panel hears a formal case presentation and makes an award, which can be binding or nonbinding upon the parties relative to a prior agreement."  K.S.A. 5-502(h) defines "neutral evaluation" as "a proceeding conducted by a neutral person who helps facilitate settlement of a case by giving the parties to the dispute an evaluation of the case."  K.S.A. 5-502(m) defines "neutral person" or "neutral" as "the impartial third party who intervenes in a dispute at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute." Through their contract, the parties attempted to provide for an "out-of-court alternate dispute resolution procedure." They were not ordered to do so by any court, and it was actually completed, although unsuccessfully, before litigation was filed. Thus, we must interpret their dispute resolution procedure using the term "mediation" as a voluntary agreement to discuss and negotiate with the assistance of a neutral person in the hopes of finding a resolution to the issues presented for mediation. See K.S.A. 5-502(e). The contract further described the dispute resolution procedure as "binding mediation." What does binding mediation mean under Kansas law? Not what RCDS is claiming. Mediation cannot be considered binding since K.S.A. 5-502(f) defines it as the act of an independent third party entering the dispute and trying to facilitate an agreement. The dispute clause provides that a mediation agreement would be written and signed by the parties indicating the terms and conditions upon which they had come to an agreement. However, it further provides should one or more disputed items remain unresolved at the end of mediation, the mediator would "render a final decision on those unresolved items." To this extent, there is an analytical tension between the agreed role of 7 the mediator and the definition of mediation under the KDRA. Again, by statute, a mediator has no decision-making authority; rather, the mediator is to assist the parties in reaching a resolution. See K.S.A. 5-502(f). When looking at the dispute resolution clause, given RCDS's argument, one might agree it should be called an arbitration agreement and not an agreement calling for mediation. However, in reconciling the dispute resolution provision as a whole, such a conclusion is unsupported by its plain terms. "The meaning of a contract should always be ascertained by a consideration of all pertinent provisions and never be determined by critical analysis of a single or isolated provision." In re Estate of Einsel, 304 Kan. at 581. Here, the parties never use the term arbitration and even if they had, arbitration is not necessarily binding unless specifically agreed to. See K.S.A. 5-502(g). Further, arbitration contemplates a hearing where the parties may present evidence and cross- examine witnesses. See K.S.A. 5-405(b). In arbitration, the arbitrator may hear and determine the controversy based on the evidence produced, may determine any question, and render a final award. See K.S.A. 5-405(a) and (c). The dispute resolution procedure in this contract as set forth contains no provision for the presentation of evidence or cross-examination of witnesses—a key component of arbitration. It does not allow the mediator to decide all of the issues—only those issues unresolved by the parties. It also does not refer to a final award. Based on its plain terms, the dispute clause does not contemplate arbitration. See K.S.A. 5-405 (setting out how an arbitration hearing occurs). Here, the parties use the terms dispute resolution, mediation, mediator, and mediation agreement. As used in K.S.A. 5-502(e), (f), and (m), and as discussed above, these terms contemplate nonbinding resolution of the dispute based on an agreement by the parties facilitated by a neutral third party. Whether the mediator's final decision is binding on the parties can be resolved by the absence of any language to that effect within the dispute clause other than the term "binding mediation." The contract clause fails to contain any language stating the dispute resolution procedure is the exclusive 8 means of dispute resolution. Further, it contains no language stating the mediator's final decision shall be conclusive and binding on the parties. Nor does it state the parties shall be prohibited from litigating issues not resolved through mediation. Based on a complete analysis of the clause and the lack of these terms, we are persuaded the parties did not contract for the mediator's decision to be final, conclusive, and binding. They actually contracted to enter into mediation as a process to possibly resolve any dispute and to eliminate litigation—a great goal, but an unrealistic one given the facts of this case. Our Supreme Court has held: "'Mediation . . . clauses are not to be treated as arbitration clauses. From a procedural standpoint, arbitration is binding whereas mediation . . . [is] not. Parties signing mediation . . . clauses may not wish to expose themselves to the inherent finality of an arbitral proceeding.' [Citation omitted.]" City of Lenexa, 245 Kan. at 323. Like many words used in the law, they have become terms of art. Arbitration is a term of art as defined by K.S.A. 5-502(g). Mediation is also a term of art as defined by K.S.A. 5-502(f). The terms are not interchangeable and one cannot be inserted in a contract to clarify what the parties now claim they intended. The district court's finding the dispute was fully and finally resolved by binding mediation is inconsistent with the plain language of our statutes and caselaw. Kansas law does not recognize binding mediation and we must adhere to that principle, whereas arbitration is generally recognized in Kansas law as a binding resolution of the issues arbitrated. With that understanding, we find Wasinger's position persuasive—the contract provided the parties are bound to enter into mediation in an attempt to resolve the issues without the need for litigation. We cannot find the agreement foreclosed either party from seeking resolution of the issues not resolved by mediation through litigation. 9 No Cross-Appeal RCDS argues the dispute clause should alternatively be interpreted as requiring binding arbitration. The district court rejected this argument and RCDS did not cross- appeal. "[O]ur Supreme Court has held that before an appellee may present adverse rulings to the appellate court, the appellee must file a cross-appeal. If an appellee does not file a cross- appeal, the issue is not properly before the appellate court and may not be considered. Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008); see K.S.A. 60-2103(h). . . . It is necessary that a cross-appeal be perfected in order to obtain appellate review of the adverse decision. If no cross-appeal is filed, the trial court's undisturbed rulings become a final ruling when the case is finally adjudicated. Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, 484, 988 P.2d 755 (1999)." Chesbro v. Board of Douglas County Comm'rs, 39 Kan. App. 2d 954, 969, 186 P.3d 829 (2008). Because RCDS did not cross-appeal the district court's finding, the issue cannot be raised before this court. Nevertheless, for the reasons previously set forth herein, the dispute clause clearly provided for mediation and not arbitration. Language of the Dispute Clause Is Not Ambiguous The question of whether a written instrument is ambiguous is a question of law subject to de novo review. See Waste Connections of Kansas, Inc., 296 Kan. at 964. As previously discussed, the dispute clause shows an intent to submit to mediation in an attempt to resolve the parties' dispute. It is not ambiguous. RCDS's desire to apply the agreement as binding arbitration does not make the clause ambiguous as written. 10 Premature To Find Contract Involved Interstate Commerce The district court found the contract involved interstate commerce and therefore was subject to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., even though it found the contract did not call for arbitration. The district court held the Federal Arbitration Act preempted the Kansas Arbitration Act, K.S.A. 5-401 et seq. The district court also found the Kansas Arbitration Act would have barred Wasinger's defamation claim against Elanjimattathil; the Federal Arbitration Act would not. The district court determined that since Wasinger failed to present his defamation claim to the mediator, he could not file suit on the claim. It erred in doing so. The district court should not have reached this issue because, as previously discussed herein, the dispute clause does not call for arbitration—it calls for mediation. The district court's finding the Federal Arbitration Act applied is not supported by its other finding that the contract did not call for arbitration. The district court never explained how binding mediation fell within the ambit of arbitration as contemplated by the Federal Arbitration Act or the Kansas Arbitration Act. With the dispute clause calling for mediation, neither the Federal Arbitration Act nor Kansas Arbitration Act apply. Thus, the issue of preemption is irrelevant. Further, the district court decided this issue on summary judgment before discovery had been completed and while material facts were unresolved. The rules governing summary judgment are often stated: "'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive 11 issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.' [Citations omitted.]" Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 24, 378 P.3d 1090 (2016). "[A]n issue of fact is not genuine unless it has legal controlling force as to the controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. Stated another way, if the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. [Citation omitted.] .... "Ordinarily, summary judgment should not be granted until discovery is complete. However, if the facts pertinent to the material issues are not controverted, summary judgment may be appropriate even when discovery is unfinished." Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 934-35, 296 P.3d 1106 (2013). Here, there was a genuine issue of material fact as to whether the contract involved interstate commerce. There were competing affidavits from Duke Strobel, a member of the church's building committee, and Wasinger. Strobel claimed materials had been purchased from out of state, whereas Wasinger denied purchasing materials from out of state and indicated all of the subcontractors involved were located in Kansas. The district court was required to resolve all facts and inferences in Wasinger's favor. Based on the fact the Federal Arbitration Act does not apply and the conflicting evidence as to genuine issues of fact, summary judgment was premature. See Armstrong, 305 Kan. at 24. Reversed and remanded. 12	{ "pile_set_name": "FreeLaw" }
733 F.2d 906 State Farmv.Bennett 83-8768 United States Court of Appeals,Eleventh Circuit. 5/2/84 1 N.D.Ga. REVERSED 2 --------------- Fed.R.App.P. 34(a); 11th Cir.R. 23.	{ "pile_set_name": "FreeLaw" }
267 Minn. 162 (1964) 125 N.W. (2d) 725 CHESTER T. WILSON AND ANOTHER v. HOME GAS COMPANY, INC. No. 38,565. Supreme Court of Minnesota. January 3, 1964. 163 Stanley Efron, for appellants. W.P. O'Brien, for respondent. KNUTSON, CHIEF JUSTICE. This is an appeal from an order of the trial court denying plaintiffs' motion for a new trial on the issue of liability only. The case arises out of a propane gas explosion, which, with the ensuing fire caused by the explosion, substantially wrecked plaintiffs' home and caused plaintiff Chester T. Wilson to suffer personal injury. In 1950, defendant, Home Gas Company, Inc., made an installation of a propane gas system in the home of plaintiffs. The pipes and fittings for the system were furnished and sold by defendant. The installation consisted of an outdoor 500-gallon bulk tank located above ground; an underground supply pipe into the house; and pipes running along the south wall to the furnace and branching off to certain appliances. Plaintiffs' home was a one-story house with a full basement. In the southeast corner of the basement was a utility room, and in it, among other things, was a gas hot-water heater; in the southwest corner of 164 the basement was a propane gas furnace; and in the kitchen on the ground floor were an old Servel refrigerator and a gas stove. None of these appliances were purchased from or owned by defendant. Defendant did hook up the supply line to these appliances and the furnace. Over the years, defendant had been called on occasions when plaintiffs had a problem about gas. The last time that gas odor had been detected was early in March 1959. Defendant's employees went to plaintiffs' home and apparently repaired the defect, although the record does not show what they did. Thereafter, neither Mrs. Wilson nor anyone else smelled the odor of gas until the evening of May 29, 1959. During that evening Mr. Wilson was at home alone, sleeping on a couch, when he was awakened by the ringing of the telephone. When he arose to answer the telephone he felt groggy, and thinking the grogginess might be caused by gas he went down to the basement to investigate. He testified that it was "so thick you couldn't breathe." When Wilson opened a basement door in order to go out to shut off the gas tanks, an explosion occurred, causing his injuries and the destruction of the house. The case was submitted to the jury on a special verdict. The jury found that defendant was not guilty of negligence; that plaintiffs were guilty of negligence; but that their negligence was not a proximate cause of the injury. The jury also found Chester Wilson's damages for personal injuries to be the sum of $18,000. To that amount was to be added property damages suffered by reason of the destruction of the home and its contents, covered and paid for by insurance. The determinative evidence consisted largely of the testimony of two expert witnesses, one called by plaintiffs and the other by defendant. Neither expert could determine with any degree of certainty what caused the accumulation of gas in such quantities as to permit an explosion of this proportion. Examinations were made of all the appliances after the explosion, but it was conceded that the heat of the fire or the force of the explosion might have changed the controls and other pipes and connections that could conceivably have permitted the 165 escape of gas. Neither of the experts would rule out any of the appliances as a possible source of escaping gas. Professor Adolph O. Lee was questioned about a report given to plaintiffs prior to the trial which stated, "Both failures of safety shutoffs and leakage of pipes are approximately the greatest physical conditions existing and are not sufficient to allow me to determine the true cause of the gas leak which came into the basement atmosphere." He said in answer to the accuracy of the statement, "That's true." He was then asked: "These pictures I think we have all seen. And, now, Page 15 and in the same sentence, and this was written before you made your microscopic examination of the pipe, `Means by which propane and bottle gas escaped in the basement atmosphere could not be determined, but two likely existed. One, a leak in the gas piping; and two, failure of controls particularly on the hot water heater.'" His answer was: "That's correct." Professor Frank B. Rowley, who appeared for defendant, gave substantially the same testimony. He stated that the escaping gas could have come from a leaking pipe or from a failure of the controls on any one of the appliances and that there was no way of determining where it came from after the explosion and resulting fire. While plaintiffs raise a number of issues now, they involve mainly the admissibility of evidence and the court's instructions relating to the degree of care required of a supplier of gas. The issues will be discussed separately. 1. Plaintiffs called Dr. Willis L. Herbert, who testified, among other things, that Mr. Wilson had developed a traumatic mental depression. On cross-examination he stated: " * * I would ask him why he was depressed and he would tell me that he was depressed on account of the loss he suffered in that explosion. And I would ask him to qualify that and he would qualify that by stating that he was not entirely covered by insurance." He was then interrogated as follows: "Q. You didn't know that his house was fully covered with insurance 166 up to the amount of $17,500.00 including all his living expenses while he was finding a house?" At this point plaintiffs' counsel objected to the question as being irrelevant and immaterial, but the witness was permitted to answer. "A. No, he did not advise me of that. "Q. You did not know that he had over $10,500.00 worth of insurance on the contents of that house, did you? "A. No, I did not. "Q. You did know that he had coverage with several disability companies, did you not, because you had to send in reports in order send in disability reports in order for them to pay the medical bills? "A. Yes." Later court and counsel retired to the court's chambers and a discussion followed. The court indicated its opinion that "defense counsel now may cross-examine the plaintiff as to his reimbursement for his property losses with relation to his claim of mental depression due to such worry over his losses due to this fire and destruction of his property." After some further discussion, it was stipulated between the parties that plaintiffs had been compensated for all of their property damage by insurance companies except the sum of $225. As a result of this stipulation, the court instructed the jury: "The parties have agreed and stipulated that the total of said damage was in the sum of $28,700.00. The parties have further agreed and stipulated that the loss in said amount, except the sum of $200.00 has been paid to the plaintiffs by certain insurance companies which carried the insurance on the property. You need not pay any further attention to this question of damages as the relationship and rights between the plaintiffs and the insurance carriers will be disposed of by the Court in determining the final result of this litigation." Plaintiffs now claim that it was reversible error to overrule their objection to questions showing payment of property damage by insurers. This claim is untenable for two reasons: Plaintiffs' appeal here is 167 from the denial of a motion for a new trial on the issue of liability only. They seek no retrial of the issue of damages. Even if the court's ruling was erroneous, it would not affect the issue of liability, so clearly it would be error without prejudice. Secondly, it was not error on the part of the court to admit evidence showing the existence of insurance on the state of the record in this case. Dr. Herbert, testifying to Mr. Wilson's personal injuries, based his opinion that Wilson had developed a traumatic mental depression on statements attributed to Wilson that he was worried because his loss was not covered by insurance. Thus it became relevant to that issue to show that there was no substance to such claim. Ordinarily, it is not permissible to show payment of a loss by an insurer in order to reduce or defeat a recovery,[1] but it is permissible to show that a litigant has insurance to cover a loss for a purpose material to an issue in the case. Thus, in Wentworth v. Butler, 134 Minn. 382, 159 N.W. 828, defendant claimed that plaintiff was feigning an injury. To support that claim, defendant sought to show that plaintiff had accident insurance, for which he had received payments. While we held that it was not reversible error to exclude such evidence for the reason that in that case it had little probative force, we said (134 Minn. 383, 159 N.W. 828): "As bearing upon the contention that the plaintiff was feigning, the defendant offered to show by him that he had accident insurance at the time and made a claim of disability and received payments under the policy. The purpose of the testimony was not to reduce damages by showing that the plaintiff profited by accident insurance. For such purpose it was not competent. * * * The purpose as announced by counsel was to show the interest of the plaintiff and his motive for the feigning of which there was at the time evidence. We are of the opinion that this evidence might have been received." In Pearson v. Zacher, 173 Minn. 365, 217 N.W. 369, we held that 168 it was not error to permit plaintiff to show that defendant was insured as bearing on the ownership of the automobile involved in the case. Again, in Barg v. Bousfield, 65 Minn. 355, 68 N.W. 45, we held that it was not error to show the existence of insurance as bearing on the issue of whether a person was an employer or an independent contractor. And in Gibson v. Gray Motor Co. 147 Minn. 134, 179 N.W. 729, it was held not error to show the existence of insurance as bearing upon the bias of a witness. It seems, therefore, that the rule we have followed, as shown by our case law, is that the existence of insurance in a case such as this may not be shown to defeat or diminish recovery, but, if it becomes relevant to prove or rebut an issue arising in the trial of the case, it may be admissible even though it is prejudicial. The problem is discussed in McCormick, Evidence, § 168, wherein the author states that such evidence may become admissible under a number of exceptions to the general rule of irrelevancy and inadmissibility. It was, therefore, not error in this case to permit defendant to show that the doctor was basing his opinion upon erroneous facts. 2. Plaintiffs seek to invoke the rule of res ipsa loquitur. The rule clearly is inapplicable here because the explosion conceivably could have resulted from one of a number of causes, several of which were not within the control of defendant. In Boutang v. Twin City Motor Bus Co. 248 Minn. 240, 244, 80 N.W. (2d) 30, 36, we said with respect to the application of the rule: " * * It is elementary that the res ipsa loquitur rule has application only where the apparent cause of the accident is such that the defendant would be solely responsible for any negligence connected with it; and if an unexplained accident may reasonably be attributed to one or more causes for which the defendant is not responsible, it is error to apply the rule as a basis for a permissive inference of negligence." While it may not be necessary to conclusively exclude all other causes,[2] the evidence must reasonably eliminate causes other than defendant's 169 negligence. If the jury is to apply the doctrine of res ipsa loquitur, the negligence upon which recovery is based must rest on a cause for which defendant is responsible.[3] Here they could find that the explosion resulted from any one of several causes for which defendant was not responsible. The cases of Manning v. St. Paul Gaslight Co. 129 Minn. 55, 151 N.W. 423, L.R.A. 1915E, 1022, and Gould v. Winona Gas Co. 100 Minn. 258, 111 N.W. 254, 10 L.R.A. (N.S.) 889, relied on by plaintiffs, are clearly distinguishable in that in both of those cases it appeared that the explosion was caused by gas escaping from a pipe for the maintenance of which defendant was responsible. No other cause was involved. In the Manning case we said (129 Minn. 57, 151 N.W. 424): " * * The gas belongs to defendant until sold and delivered through its meter in the consumer's building, and therefore defendant should be responsible for its care until it is so measured and delivered." In Peterson v. Minnesota Power & Light Co. 207 Minn. 387, 390, 291 N.W. 705, 707, relied upon to some extent by plaintiffs, we said: "* * * One essential prerequisite to the application of res ipsa loquitur is that defendant must have exclusive control of the instrumentality causing the harm. * * * From this fact reason permits the inference that it must have been defendant who was negligent for fault cannot be traced to any other party. Manifestly the mere occurrence of the event without control by defendant would not justify the conclusion that it was the one responsible. * * * * * "* * * res ipsa loquitur cannot apply where there is divided control." In this case it is evident even from plaintiffs' own expert witness that the cause of the explosion was not traceable to the escape of gas from pipes over which defendant was charged with responsibility. The 170 gas could have escaped from any of the appliances for which defendant was not responsible.[4] 3. Many of the assignments of error relate to the court's instructions as to the degree of care required of one who sells or distributes propane gas. Plaintiffs seek to invoke a high degree of care, analogous to the rule applied to common carriers. They complain of the court's instruction, which as far as material reads: " * * As it is used in the law, negligence is defined as a failure to exercise that degree of care under any given circumstances which a person of ordinary care and prudence would exercise under similar circumstances. "What constitutes reasonable care depends upon the circumstances of the particular case. The care must be proportionate to the danger known or reasonably to be apprehended. That is, it must be commensurate to the risk of the situation. The greater the danger, the greater the care required. But the standard always remains the same, reasonable or ordinary care. * * * * * "Gas is a highly dangerous substance. Its tendency to escape and the danger incident thereto is well known. A company engaged to service a customer's supply line use (sic) the same degree of care which an ordinarily prudent person would exercise under like circumstances in controlling such an article. That is to say that degree of care which is proportionate to the known danger or the danger which was reasonable to be apprehended from escaping gas. Notwithstanding the requirement of this rule of ordinary care, as applied to situations of this kind the law does not make a gas company an insurer against damages to person or property from the escape of gas, and liability is usually predicated on negligence. "A gas company is guilty of negligence, if a leak or leaks in a customer's supply line or pipes causes injury to persons or property, provided, 171 however, the company has sufficient notice of such leak or leaks, and having received such notice fails to exercise ordinary care applicable to situations of this kind in its inspection or in the repair of such leak. Negligence on the part of an employee or agent in performance of his duties within the scope of his employment is imputed to the employer and renders the employer liable for damages resulting from the employer's or agent's negligence." The court's instruction, read as a whole, was adequate. While it deals with ordinary care, it clearly equates the degree of care required with the dangers involved in the particular situation. Ordinary care commensurate with the dangers involved is the test we have followed in these cases. In Bellefuil v. Willmar Gas Co. Inc. 243 Minn. 123, 126, 66 N.W. (2d) 779, 782, where the cases are quite exhaustively examined, we said: " * * A distributor of gas must exercise a degree of care to prevent the escape of gas proportionate to the danger which it is its duty to avoid. "With respect to gas appliances in a customer's building which are not installed, owned, or controlled by the gas company, a gas company has no duty to make periodic inspections to ascertain the safety of such appliances in the absence of some contract, custom, or statutory obligation. The company can act upon the assumption, in the absence of notice to the contrary, that the customer's appliances are in repair so as to permit the transmission of gas therein with safety. In the absence of a contrary showing, it is the responsibility of the customer to maintain and repair his appliances. If, however, a gas company acquires, or ought reasonably to have acquired, knowledge of a dangerous condition, it is its duty to shut off the gas until the customer has his pipes, connections, and appliances properly repaired." 4. Plaintiffs also seek to cast upon defendant the duty of constant inspection and conclusive liability in case the gas escapes for any reason. Such has never been the law. The court held defendant responsible for reasonable inspection of the installation it used in delivering the 172 gas. While defendant did connect the gas to several appliances in plaintiffs' house, it neither owned nor controlled such appliances. This is another example of a trial by experts, but neither the expert called by plaintiffs nor by defendant would exclude the furnace, the refrigerator, the stove, or the hot-water heater as a possible source of escaping gas. Defendant had answered a call from plaintiffs not long before the explosion and had repaired something, the exact nature of which does not appear from the record. Neither Mrs. Wilson, who had an especially sensitive perception to the small of gas, nor anyone else, detected the odor of gas from that time until the explosion. To apply the rule plaintiffs seek to invoke would require the gas supplier to stay on the premises constantly in order to detect immediately the escape of gas if any appliance ceased to function properly. The duty to inspect does not require a system of inspection "at all times" but rather a duty to make reasonable inspections,[5] and then, as to appliances not owned or controlled by the defendant, only after a reasonable notice of the existence of danger. To apply any other rule would make the gas supplier an insurer if anything went wrong with any of the appliances over which it had no control. Recognizing that escaping gas is a dangerous substance, we have consistently held that the supplier of gas is not an insurer of customers for injury or damage resulting therefrom, unless it can be shown that the gas has escaped from a pipe over which the defendant was charged with responsibility. While plaintiffs would have us hold that these appliances were "installed" by defendant because they were connected to the gas line, we think use of the word "installed" carries with it an implication similar to the words "owned or controlled." In other words, a greater duty arises as to pipes and appliances that are the responsibility of defendant, like its gas line.[6] As to appliances owned and controlled by the customer, the duty of the supplier is to shut off the gas or to make repairs after reasonable notice has been given to it that gas is escaping. 173 Thus, in Manning v. St. Paul Gaslight Co. 129 Minn. 55, 151 N.W. 423, L.R.A. 1915E, 1022, and similar cases, we applied a strict rule of liability when gas escapes from a pipe over which the defendant has control and for which it is responsible, but the same rule does not apply to gas escaping from appliances owned by the customer and maintained by him. In Fabbrizi v. Village of Hibbing, 242 Minn. 464, 468, 66 N.W. (2d) 7, 9, we said: "* * * It may be generally stated that, where a gas company does not install or own the service lines on private property and exercises no control over them, it is not responsible for the condition in which they are maintained and is not liable for damages caused by a leak therein of which it does not have notice. And a gas company, in the absence of notice of defects in the service lines, is not required to make inspections of the lines on private property when the lines are not owned by it or under its control." 5. Applying these rules to the facts of this case, it is evident that the liability of defendant was limited to a failure to maintain the pipe which brought the gas into plaintiffs' house. The case was tried on that theory. Defendant was under a duty to inspect other appliances, or to shut off its supply of gas, only on reasonable notice of the existence of danger. This it did. The court found, at the very least, that plaintiffs failed to sustain their burden of proving that the explosion resulted from gas escaping from an installation over which defendant was chargeable with responsibility. After all, a finding of negligence rests on a breach of duty. Absent a duty to inspect without notice, there can be no finding of negligence for a breach of such nonexisting duty. In Bellefuil v. Willmar Gas Co. Inc. 243 Minn. 123, 129, 66 N.W. (2d) 779, 784, we said: "* * * But the duty, by reason of actual or constructive notice of some dangerous condition, must arise before the gas company can be found negligent for its failure to inspect or shut off the gas supply." Even plaintiffs' own expert admitted that it would be unlikely that 174 the volume of gas required to cause this explosion could have escaped from a leak in the pipe for the maintenance of which defendant was responsible. He also admitted that the stove, refrigerator, furnace, and hot-water heater could not be excluded as possible sources of escaping gas. Under these circumstances, we think that the court correctly held that the jury's findings could not rest on a mere guess as to where the gas came from and that recovery would be permitted only if it found that the gas escaped from defendant's pipe. Nor is this contrary to Trimbo v. Minnesota Valley Natural Gas Co. 260 Minn. 386, 110 N.W. (2d) 168, for in that case we held that the gas company had notice of a defect which required it to act. The same is true of DeVries v. City of Austin, 261 Minn. 52, 63, 110 N.W. (2d) 529, 537, where we said: " * * it [the supplier of gas] is required to exercise due care to prevent the escape of gas proportionate to the danger which it is its duty to avoid, * * ." 6. Finally, plaintiffs assign as error the court's instruction that there was no evidence of negligence other than failure of defendant to properly maintain the pipe fitting in the corner of one of the rooms in the basement. They maintain that the jury should have been instructed that they could infer negligence from circumstantial evidence indicating that defendant was negligent elsewhere. This claim must fail for several reasons. In the first place, plaintiffs did not request instructions on this phase of the case. Neither is it mentioned in their motion for a new trial except in so far as it is included within the assignment of error regarding failure to submit res ipsa loquitur, which read: "The Court erred in refusing to instruct the jury as to the permissible inferences of negligence arising by virtue of circumstantial evidence, based on res ipsa loquitur." We have already discussed the inapplicability of res ipsa loquitur. Not having been raised at the trial or in plaintiffs' motion for a new 175 trial, the assigned error cannot now be raised for the first time on appeal.[7] In the second place, under Rule 49.01 of Rules of Civil Procedure, where the case is submitted to the jury on a special verdict and the court omits any issue of fact raised by the pleadings or by the evidence, a party waives his right to a trial by jury on that issue unless he demands its submission to the jury before the jury retires. There was no such request made here, nor has the court been asked to make a finding after the jury's verdict.[8] Finally, the record indicates clearly that the only evidence introduced by plaintiffs of a gas leak in any of the pipes relates to the exhibit designated in the record as GG, which was located in the corner of one of the rooms in the basement. There being no evidence upon which a finding of negligence could rest as to any other pipe or appliance for which defendant was responsible, there could be no error in failing to submit to the jury any issue of negligence elsewhere. Affirmed. NOTES [1] Evans v. Chicago, M. & St. P. Ry. Co. 133 Minn. 293, 158 N.W. 335; see, State ex rel. City of Duluth v. District Court, 134 Minn. 28, 158 N.W. 791. [2] Rinkel v. Lee's Plumbing & Heating Co. 257 Minn. 14, 99 N.W. (2d) 779. [3] See, Prosser, Torts (2 ed.) § 42. [4] See, Risberg v. Duluth, M. & I.R. Ry. Co. 233 Minn. 396, 47 N.W. (2d) 113; Mathews v. C. & N.W. Ry. Co. 162 Minn. 313, 202 N.W. 896; Prosser, The Procedural Effect of Res Ipsa Loquitur, 20 Minn. L. Rev. 241. [5] See, Pappas v. Peoples Gas Light & Coke Co. 350 Ill. App. 541, 113 N.E. (2d) 585. [6] Manning v. St. Paul Gaslight Co. 129 Minn. 55, 151 N.W. 423, L.R.A. 1915E, 1022. [7] Rules of Civil Procedure, Rule 51; cf. Trudeau v. Sina Contracting Co. Inc. 241 Minn. 79, 62 N.W. (2d) 492. [8] See, Wormsbecker v. Donovan Const. Co. 247 Minn. 32, 76 N.W. (2d) 643.	{ "pile_set_name": "FreeLaw" }
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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 858 CA 13-02010 PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ. IN THE MATTER OF COUNTY OF NIAGARA, PETITIONER-PLAINTIFF-RESPONDENT, V MEMORANDUM AND ORDER NIRAV R. SHAH, M.D., M.P.H., COMMISSIONER, NEW YORK STATE DEPARTMENT OF HEALTH AND NEW YORK STATE DEPARTMENT OF HEALTH, RESPONDENTS-DEFENDANTS-APPELLANTS. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-APPELLANTS. WHITEMAN OSTERMAN & HANNA LLP, ALBANY (CHRISTOPHER E. BUCKEY OF COUNSEL), AND NANCY ROSE STORMER, P.C., UTICA, FOR PETITIONER-PLAINTIFF-RESPONDENT. Appeal from a judgment (denominated order and judgment) of the Supreme Court, Niagara County (Catherine R. Nugent Panepinto, J.), entered July 1, 2013 in a CPLR article 78 proceeding and declaratory judgment action. The judgment, inter alia, directed respondents- defendants to pay petitioner-plaintiff’s claims for reimbursement of overburden expenditures. It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Niagara County, for further proceedings in accordance with the following Memorandum: Petitioner-plaintiff County of Niagara (petitioner) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, to compel respondents-defendants (respondents) to pay petitioner’s claims for reimbursement for certain expenditures known as overburden expenditures (see generally Matter of Krauskopf v Perales, 139 AD2d 147, affd 74 NY2d 730). The petition/complaint alleges that respondent-defendant New York State Department of Health (DOH) improperly billed petitioner for those expenditures prior to 2006, and that respondents have a continuing duty to reimburse petitioner for them. Determination of this appeal requires some discussion of the legislation and prior litigation concerning these expenditures. With respect to most Medicaid costs, the initial statutory scheme provided that the federal government would reimburse the State for half of all Medicaid expenditures that were made, and in most cases the DOH would -2- 858 CA 13-02010 then split the other half with the social services district in which the payment was made, including petitioner (see Social Services Law § 368-a [1] [d]). With respect to Medicaid payments made to treat the mentally ill individuals at issue in the overburden expenditures, however, it was mandated that, commencing January 1, 1984, the DOH would pay the entire non-federal share of the treatment (see § 368-a [1] [h]). As the costs arising from the Medicaid program as a whole began to grow exponentially, the Legislature changed the statutory scheme by enacting the Medicaid Cap Statute ([Cap Statute] L 2005, ch 58, part C, as amended by L 2006, ch 57, part A, § 60). Although the Cap Statute used a complex set of provisions to affix each social services district’s liability for Medicaid expenses, it essentially provided that each social services district, including petitioner, would send the State a fixed amount of money per year, based on the amount spent by that social services district during the fiscal year beginning April 1, 2005, minus payments received by the social services district for those expenses (see generally Matter of County of St. Lawrence v Shah, 95 AD3d 1548, 1549-1550). The amounts are to be adjusted for inflation in subsequent years (see id.). Petitioner contends that respondents failed to reimburse it for numerous overburden expenditures that it made prior to 2006, and it began submitting claims for reimbursement. Upon enactment of the Cap Statute, respondents began to deny those claims on the ground that the Cap Statute extinguished petitioner’s right to seek reimbursement for those claims. On appeal from a judgment rejecting that ground for denial, this Court concluded that, “in light of the lack of legislative history or statutory language indicating that the Legislature intended that the statute . . . should be applied retroactively” (Matter of County of Niagara v Daines, 60 AD3d 1456, 1457, lv denied 13 NY3d 707), respondents’ duty to reimburse social services districts for overburden expenditures incurred prior to January 1, 2006 was not extinguished by the Cap Statute (id.). In addition, we also rejected respondents’ contention that petitioner’s claims “were time-barred pursuant to 18 NYCRR 601.3 (c)” (Matter of County of Niagara v Daines, 79 AD3d 1702, 1705, lv denied 17 NY3d 703). Respondents thereafter took the position that petitioner’s right to seek reimbursement for overburden expenditures was extinguished by a 2010 amendment to the Cap Statute (L 2010, ch 109, part B, § 24), and we likewise rejected that contention. We concluded that, “inasmuch as the plain language of the 2010 amendment does not mention overburden expenditures or respondents’ preexisting duty to reimburse petitioner for such expenses incurred prior to 2006, that duty is not extinguished by the amendment” (Matter of County of Niagara v Daines, 91 AD3d 1288, 1289). We further stated that “[t]here is nothing in the legislative history indicating that the Legislature acted in response to the prior judicial decisions concerning the Medicaid Cap Statute” in enacting the 2010 amendment (id.). Subsequent to our determination in that case, however, the Legislature inserted a provision in the executive budget for 2012- 2013, stating that, “[n]otwithstanding the provisions of section 368-a of the social services law or any other contrary provision of law, no -3- 858 CA 13-02010 reimbursement shall be made for social services districts’ claims submitted on and after the effective date of this paragraph, for district expenditures incurred prior to January 1, 2006, including, but not limited to,” overburden expenditures (L 2012, ch 56, part D, § 61 [hereafter, section 61]). Furthermore, the memorandum in support of the executive budget indicated that section 61 was proposed “to clarify that local governments cannot claim for overburden expenses incurred prior to January 1, 2006, when the [Cap Statute] took effect. This is necessary to address adverse court decisions that have resulted in State costs paid to local districts for pre-cap periods, which conflict with the original intent of the” Cap Statute. After the effective date of section 61, petitioner submitted the claims at issue in this appeal. The DOH denied those claims on the ground that they were barred by section 61, and petitioner commenced this action. Respondents moved and petitioner cross-moved for summary judgment on the petition/complaint. Respondents appeal from a judgment that, inter alia, granted petitioner’s cross motion and directed respondents to pay the claims. We agree with respondents that section 61 has retroactively changed the law with respect to this issue, and we therefore reverse. Section 61 clearly states that no further claims for reimbursement of overburden expenditures will be paid, notwithstanding Social Services Law § 368-h. Thus, the unequivocal wording of section 61 retroactively extinguishes petitioner’s right to submit claims for reimbursement of overburden expenditures made prior to 2006. “The retroactivity of a statute which is expressly retroactive, as here, will generally be defeated only if such retroactivity would violate due process or some other specific constitutional precept” (Matter of City of New York v Lawton, 128 AD2d 202, 206). Here, however, in granting the cross motion, Supreme Court ordered that petitioner’s claims be “treated under Social Services Law § 368-a as [they] existed at the time that Petitioner incurred the Overburden expenses on Respondents’ behalf, pursuant to the special facts exception.” We agree with respondents that the special facts exception does not apply in this situation. Insofar as relevant here, that exception provides that “a court may deny an agency the benefit of a change in the law when it has intentionally or even negligently delayed action on [a claim] until after the law had been amended to authorize denial of the” claim (Matter of Faymor Dev. Co. v Board of Stds. & Appeals of City of N.Y., 45 NY2d 560, 565). There is no indication that resolution of the claims at issue was delayed until section 61 was enacted. To the contrary, respondents denied the claims immediately upon their submission, based on section 61. Although respondents unquestionably denied other, earlier claims based on other rationales, those claims have since been paid and are not at issue in this appeal. We reject petitioner’s contention that the initial alleged failure of the State’s computer to flag these payments as overburden expenditures, and all subsequent denials or delays in paying claims submitted by petitioner and other social services districts, should be classified as the requisite intentional or negligent failure to act. Any intentional or negligent computer -4- 858 CA 13-02010 coding error occurred, if at all, when a computer coding process was allegedly changed at some unknown date prior to 2006, and section 61 was not enacted until six years later. It therefore cannot be said that the changes in the computer coding were made in anticipation of the imminent enactment of section 61, which was not contemplated at that time. Similarly, respondents’ prior denial of claims and litigation occurred years before section 61 was first contemplated, and we therefore reject the contention that the delay was for the purpose of awaiting that legislative action. Thus, the court erred in determining that the special facts exception applies. Petitioner further contends that section 61 is inapplicable because respondents have an ongoing duty to reimburse petitioner for all prior overburden expenditures without regard to whether petitioner submits a claim. Thus, according to petitioner, no claim for reimbursement is necessary, and section 61 therefore does not apply to this situation because it merely bars payment of claims. We reject that contention. It is well settled that, in interpreting a statute, a court “ ‘must assume that the Legislature did not deliberately place a phrase in the statute that was intended to serve no purpose’ ” (Matter of Rodriguez v Perales, 86 NY2d 361, 366, quoting Matter of Smathers, 309 NY 487, 495), and must avoid an interpretation that “ ‘result[s] in the nullification of one part of [a statute] by another’ ” (Rangolan v County of Nassau, 96 NY2d 42, 48). Thus, “[a] construction that would render a provision superfluous is to be avoided” (Majewski v Broadalbin-Perth Sch. Dist., 91 NY2d 577, 587; see Matter of Branford House v Michetti, 81 NY2d 681, 688). If we accept petitioner’s contention that respondents must forthwith search out all prior possible instances of unreimbursed overburden expenditures and submit payment for them to petitioner notwithstanding section 61, then there is no situation in which a claim for such payment will be submitted. Thus, there will be no situation in which section 61 will apply, rendering it a nullity. Similarly, to accept petitioner’s “proffered interpretation would be to return to the prior version of the statute, rendering the amendment a nullity” (People v Thompson, 99 NY2d 38, 42). We therefore reject petitioner’s interpretation of the statutory scheme. In its cross motion for summary judgment, petitioner sought, inter alia, judgment declaring that section 61 is unconstitutional because the statute deprived petitioner of due process by removing its vested rights. “[T]he traditional principle throughout the United States has been that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation. This general incapacity to sue flows from judicial recognition of the juridical as well as political relationship between those entities and the State. Constitutionally as well as a matter of historical fact, municipal corporate bodies—counties, towns and school districts—are merely subdivisions of the State, created by the State for the convenient carrying out of the State’s governmental powers and responsibilities as its agents. Viewed, therefore, by the courts as -5- 858 CA 13-02010 purely creatures or agents of the State, it followed that municipal corporate bodies cannot have the right to contest the actions of their principal or creator affecting them in their governmental capacity or as representatives of their inhabitants” (City of New York v State of New York, 86 NY2d 286, 289-290). It is equally well settled, however, that “[t]he issue of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when the plaintiffs lack standing. Rather, lack of capacity to sue is a ground for dismissal which must be raised by motion and is otherwise waived” (id. at 292). Here, petitioner cross-moved for summary judgment on several grounds, including the unconstitutionality of the statute, and it appears that the Attorney General was invited to participate based upon the challenge to the constitutionality of section 61. The record does not reflect whether respondents contested that part of the cross motion, or whether the Attorney General appeared with respect to that issue. Because the court decided the cross motion solely on the ground that the special facts exception barred the application of section 61, the court did not reach the issue. We therefore remit the matter to Supreme Court for consideration of the issue, after any further briefing and motion argument that the court deems proper. Entered: November 14, 2014 Frances E. Cafarell Clerk of the Court	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas January 3, 2020 No. 04-19-00899-CV IN RE Corey Michael MANSOUR Original Mandamus Proceeding 1 ORDER Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice On December 31, 2019, relator filed a document entitled “Respondent’s Notice of Appeal/Mandamus.” If relator desires to file a petition for writ of mandamus, he must do so no later than January 21, 2020. The petition must comply with Texas Rule of Appellate Procedure 52. If relator does not file a petition for writ of mandamus by January 21, 2020, this original proceeding will be dismissed for want of prosecution. It is so ORDERED on January 3, 2020. PER CURIAM ATTESTED TO: _________________________ MICHAEL A. CRUZ, Clerk of Court 1 This proceeding arises out of Cause No. 2012CI13803, styled In the Interest of M.C.S. and M.E.S., Children, pending in the 131st Judicial District Court, Bexar County, Texas, the Honorable Angelica Jimenez presiding.	{ "pile_set_name": "FreeLaw" }
126 Ga. App. 468 (1972) 191 S.E.2d 90 MARYLAND CASUALTY COMPANY et al. v. JOHNSON. 47131. Court of Appeals of Georgia. Argued May 3, 1972. Decided June 14, 1972. 469 Charles L. Drew, for appellants. Peyton S. Hawes, Jr., for appellee. HALL, Presiding Judge. The employer and insurer appeal from the judgment of the superior court affirming an award of the State Board of Workmen's Compensation. Following the injury, an agreement was made and approved by the board compensating claimant for a broken arm. Over a year later, the claimant requested a hearing to determine disability. After a hearing, the deputy director entered an award assessing 10% disability to the right arm. Claimant appealed to the full board which set aside the award of the deputy director and found that claimant was totally disabled. 1. Appellants contend that the award of the full board, which is written as a recital of testimony, contains no findings of fact as required by Code § 114-707. The award, which contains only a selection from all the testimony, can be construed to be a statement of findings consistent with that testimony, thereby making the award valid. See Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (119 Se 39). 2. Appellants also contend that the board acted without authority in entering this award modifying a duly approved agreement as the hearing was not for review upon a change of condition. While Code Ann. § 114-709 authorizes review of an approved agreement only for change of condition, this court has held that the board may, on its own motion, enter an award stating that a change of condition has occurred, regardless of the stated purpose of the hearing. Fulton Cotton Mills v. Lashley, 123 Ga. App. 528 (182 SE2d 180). Judgment affirmed. Bell, C. J., Eberhardt, P. J., Deen, Quillian, Clark and Stolz, JJ., concur. Evans, J., concurs in the judgment. Pannell, J., dissents. PANNELL, Judge, dissenting. I dissent from Division 1 of the opinion which controls the case. The notice of award recites that certain witnesses testified as to certain facts, then follows what is termed "Findings of Facts": "From all the evidence in the record the majority of the full board finds as a matter of fact that claimant did in fact suffer multiple injuries on March 25, 1969, from an accident which arose out of and in the course of his employment. The majority of the full board further finds that claimant has been totally disabled since the date of the accident and that he is entitled to compensation in the amount of $50 per week since that date." This court has consistently held that a mere recitation of testimony is not findings of fact and that the findings of fact here shown are not sufficient. See Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (1) (119 SE 39); American Mut. Liab. Ins. Co. v. Hardy, 36 Ga. App. 487, 490 (137 SE 113); Metropolitan Cas. Ins. Co. of New York v. Dallas, 39 Ga. App. 38 (146 SE 37); Bituminous Cas. Corp. v. Chambers, 84 Ga. App. 295 (66 SE2d 196); Atlanta Transit System v. Harcourt, 94 Ga. App. 503 (95 SE2d 41); Fireman's Fund Indem. Co. v. Peeples, 97 Ga. App. 896 (104 SE2d 664); Hodges v. Fidelity & Cas. Co., 105 Ga. App. 273, 274 (124 SE2d 435); Noles v. Aragon Mills, 110 Ga. App. 374, 375 (138 SE2d 598); Dudley v. Sears, Roebuck & Co., 111 Ga. App. 214 (141 SE2d 179). The case of Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (1), in no way supports the statement in the majority opinion that "The award, which contains only a selection from all the testimony, can be construed to be a statement of findings consistent with that testimony, thereby making the award valid." On the contrary, in that case (p. 701), the notice of award contained a recitation of facts then a statement of questions and answers incorporated in that part: "In order to clear the record as far as rules are concerned...." and immediately after quoting 470 the questions and answers, continued the recitation of fact preceded by nothing in reference to someone testifying. After reciting these facts, the Commissioner set out the testimony of the various witnesses. After setting out the above, the court in the Southeastern Express Co. case said (p. 702): "We cannot say that the portion of the report which we have quoted at length above is not a statement of the commissioner's findings. The record does not demand the conclusion that it is merely a part of his narrative of the evidence. It appears to us to be a statement of his findings, succeeded by a story of the evidence upon which it is based. If the quoted statement may with equal reason be said to be the one or the other, it should be construed, after judgment, to be that which will make the judgment valid." There is nothing in the record of the present case that can be so construed. The Southeastern Express Co. case, instead of supporting the majority opinion, actually supports my conclusion. I quote from Headnote 1 of that opinion: "1. The Georgia workmen's compensation act (section 57) requires that the award of the Industrial Commission shall be accompanied with a statement of the findings of fact upon which it is made, in order that the losing party may intelligently prepare his appeal and that the cause may there-upon be intelligently reviewed. See section 59. (a) This requirement contemplates a concise but comprehensive statement of the cause and circumstances of the accident as the commission shall find it in truth to have occurred. A repetition of the evidence heard is not a compliance with this requirement, but will not vitiate the findings if otherwise sufficiently stated. (b) Nor is it enough to state merely in the language of the statute that the injury is found to have arisen out of and in the course of the employment. (c) A failure of the commission to state its findings will not necessarily require a rehearing de novo, but the case may be recommitted merely in order that the commission may state its findings from the evidence already heard, according as the reviewing court may direct. (d) If, upon an application for a review under the provisions of section 58, the *471 full commission shall find the facts as they were found by the sole commissioner, it will be sufficient for the statement of the findings of the latter to be adopted by the full commission, without the necessity of a restatement in detail," and also from the opinion (p. 700) as follows: "A repetition of the evidence heard is not a compliance with the act, because it is the duty of the commission to weigh the evidence and to declare what it finds to be the truth. Some of the witnesses might make a case demanding compensation, while the evidence of others might demand just the opposite. A mere narrative of conflicting testimony would leave it impossible for a reviewing court to determine whether the truth of the transaction as conceived by the commission would support its decree."	{ "pile_set_name": "FreeLaw" }
108 F.Supp.2d 897 (2000) Randle BRANCH v. BRIDGESTONE/FIRESTONE, INC. No. 3-99-1011. United States District Court, M.D. Tennessee, Nashville Division. July 31, 2000. 898 899 Donald D. Zuccarello, Nashville, TN, for Randle Branch, plaintiff. Stephen W. Grace, Kathryn S. Crenshaw, Waller, Lansden, Dortch & Davis, Nashville, TN, for Bridgestone/Firestone, Inc., defendant. 900 MEMORANDUM WISEMAN, Senior District Judge. Plaintiff Randle Branch alleges that Defendant Bridgestone/Firestone, Inc. ("Bridgestone") fired him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Bridgestone moves for summary judgment. Based on the evidence presented, no reasonable jury could determine either that Branch is disabled as defined by the ADA or that he has the ability to perform the essential functions of an alternative job if Bridgestone had offered him such a job as a reasonable accommodation. The Defendant's Motion for Summary Judgment is therefore GRANTED. Facts The following facts are not in dispute and have been admitted by Branch. In October, 1988, Branch began working at Bridgestone, a tire manufacturer, in various union-represented laborer positions, all of which required using heavy tools and rolling tires. Branch's union negotiated a Collective Bargaining Agreement that set minimum pace requirements. Bridgestone felt that such pace requirements were necessary in the competitive tire industry, and in 1992, it implemented a Low Performer Program to address the problems of those who had the ability to perform at the contractually required pace but who willfully refused or failed to do so. In 1998, Branch voluntarily transferred from a tire inspecting position to a tire builder position. He was required by his union's agreement to build eighty-three tires for each twelve-hour shift he worked. Branch admits that he was aware of the eighty-three tires per shift requirement but that he never built more than sixty tires during any shift he ever worked as a tire builder. Branch now asserts that he has carpal tunnel syndrome. He admits that his condition does not affect his ability to care for himself, walk, eat, learn, or talk. He also admits that it does not limit his ability to perform various jobs he held before his asserted carpal tunnel syndrome arose. These jobs include working as a hotel or retail store manager, sales clerk, real estate agent, administrative assistant, behavioral therapist, or driver. He does contend that his carpal tunnel syndrome prevents him from performing repetitive work with power tools, lifting and pushing tires, and driving for more than two and one-half hours at a time. While at Bridgestone, Branch's condition was diagnosed as tendinitis; it was not deemed carpal tunnel syndrome until after his termination. No physician ever placed Branch on medical restrictions or limitations while he was at Bridgestone. No one ever called Branch derogatory names related to his condition or inability/refusal to meet the minimum pace requirements. The only accommodation requested by Branch was a transfer to a new position, which would have required bumping other Bridgestone employees from their positions to create a vacancy. According to the Collective Bargaining Agreement, Branch had to remain in his tire builder position for one year before he could transfer, unless he was physically unable to perform the job. Branch argues that he was physically unable to perform the job and should have been able to transfer. As part of the Low Performer Program, Bridgestone reviewed Branch's performance and had its time-study engineers study his performance. Bridgestone counseled Branch for his failure to meet the minimum pace requirements. After concluding that Branch had the ability to perform his job but simply refused to do so, Bridgestone terminated Branch. Through his union, Branch challenged Bridgestone's conclusion that he was not physically disabled. The issue was arbitrated and Branch lost. Only the following facts are in dispute. Bridgestone alleges that prior to termination, Branch never told any Bridgestone employee about the scope or extent of his 901 physical limitations, and that Bridgestone therefore never regarded Branch as disabled or physically impaired, but believed at all times that he could perform the duties of a tire builder. Branch asserts that he informed his supervisors of his condition. Bridgestone asserts that it fired Branch as part of the Low Performer Program. Branch alleges he was fired in violation of the ADA. Basis for Summary Judgment According to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). For the purposes of summary judgment, the Court must view all facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir.1990). The Court must determine whether sufficient evidence has been presented to render an issue of fact a proper jury question and must not weigh the evidence, assess the credibility of the witnesses, or determine the truth of any disputed matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party seeking relief under the ADA must prove (1) he is disabled within the meaning of the ADA, (2) he is otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation, and (3) his employer discharged him solely because of his disability. McKay v. Toyota Motor Mfg., 110 F.3d 369, 371 (6th Cir.1997); Monette v. Electronic Data Systems Corporation, 90 F.3d 1173, 1178 (6th Cir. 1996). Bridgestone requests summary judgment for the following reasons: Branch has not established that he has a disability entitled to ADA protection; even if he has a disability, his requested accommodation was not "reasonable" as a matter of law; Branch cannot sustain an action for a failure to accommodate because he never informed Bridgestone of the scope of his limitations or the restrictions caused by his alleged disability; and Bridgestone could not have fired Branch because of his alleged disability because Bridgestone had no knowledge of any limitation caused by the alleged disability. Could a reasonable jury find that Branch is disabled under the ADA? Under the ADA, "disability" means either (1) having a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded by one's employer as having such an impairment. 42 U.S.C. § 12102. Substantially Limited in a Major Life Activity The regulations enacted by the EEOC pursuant to the ADA define "substantially limits" as a total inability, or a substantial restriction upon an individual's ability, to perform a major life activity, in terms of condition, manner, or duration, that the average person in the general population can perform. 29 C.F.R. § 1630.2(j)(1). Major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Branch admits that his carpal tunnel syndrome does not affect his ability to care for himself, walk, breathe, eat, learn, or talk. His main argument is that he is limited in the major life activity of working.[1] 902 The following factors are relevant in determining whether an individual is substantially limited in a major life activity: "the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term, or the expected permanent or long term impact resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). With respect to the life activity of working, other factors are also relevant, including: "the geographical area to which the individual has access; the job from which the individual has been disqualified ... and the number and types of jobs utilizing similar training, knowledge, skills, or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or the job from which the individual has been disqualified ... and the number and types of jobs not utilizing similar training, knowledge, skills, or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes)." 29 C.F.R. § 1630.2(j)(3)(ii); Doren v. Battle Creek Health System, 187 F.3d 595, 598 (6th Cir.1999). To be disabled in the major life activity of working, the individual must be unable to perform a class or broad range of jobs. 29 C.F.R. § 1630.2(j)(3)(i); Williams v. Toyota Motor Manufacturing, 2000 WL 913371, at 2 (6th Cir.2000). He must be "precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450, 468 (1999); Sullivan v. River Valley School District, 197 F.3d 804, 811 (6th Cir.1999) ("[A] mere deterioration in performance at a single, particular job cannot constitute a disability."). Ultimately, Branch must provide evidence that would allow a reasonable jury to conclude that his ability to work at a broad range of jobs is significantly limited as compared to an average person in the general population. Based on his admissions and deposition, Branch is not substantially limited in the major life activity of working. Branch's only assertion is that his condition prevents him from performing repetitive work with power tools, lifting and pushing tires, and driving for more than two and one-half hours at one time. Branch admits that no physician ever placed him on work restrictions or limitations of any kind while at Bridgestone. Ruling on a similar motion for summary judgment, a district court in Kentucky 903 found an automobile assembler with carpal tunnel syndrome was not substantially limited in the major life activity of working. McKay v. Toyota Motor Mfg., 878 F.Supp. 1012, 1015 (E.D.Ky.1995). The court noted that even though she had doctors who had placed her on workplace restrictions, the assembler, given her age and educational background, was qualified for numerous positions not utilizing the skills of automobile assembler. Id. The inability to perform repetitive factory work alone did not render her significantly limited under the ADA. Id. The Sixth Circuit upheld the decision, explaining that McKay's condition did not significantly restrict her ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. McKay v. Toyota Motor Mfg., 110 F.3d 369, 373 (6th Cir.1997). Branch seeks to distinguish McKay on the grounds that he is fifty-two years old, whereas McKay was only twenty-three and could therefore more easily enter the job market. He also asserts that McKay worked for Toyota only a year before being fired, whereas Branch worked almost eleven years for Bridgestone. Hence, he claims any other jobs skills he once possessed have been "dulled by years of factory work." Branch would seem to be limited in performing the specific job of tire builder, but has not presented any evidence that his condition prevents him from performing a substantial class or broad range of jobs. Working, as a major life activity, must be defined broadly with reference to more than any one specific job, and a consideration of the plaintiff's vocational abilities, as performed in McKay, is therefore relevant to determining whether he is disabled. Branch admits that his condition does not limit his ability to perform prior jobs he has held, including hotel or retail store manager, sales clerk, real estate agent, administrative assistant, behavioral therapist, or driver (if driving less than two and one-half hours at a time). He has a bachelor's degree in psychology, a master's degree in industrial studies, military training, and is bilingual. He also manages his farm, which consists of feeding animals, using a chain saw or weed-eater for up to thirty minutes at a time, repairing fences, and other odds and ends. Branch has not presented any details regarding his current abilities or the extent of any impairment caused by his carpal tunnel syndrome. He has presented no vocational testimony that his condition restricts his ability to work. He does not even point to any medical testimony other than the diagnosis that would indicate he is excluded from a broad class or range of jobs. The only way one could determine that Branch is substantially limited in the life activity of working is to conclude that he must be disabled because he has carpal tunnel syndrome and has never fulfilled the eighty-three tire minimum. But even such a conclusion would indicate only that Branch is limited in his capacity as a tire builder, not that he is limited as to a broad range of jobs. Furthermore, neither his age nor the length of time he has worked for Bridgestone is relevant to a finding of disability. The regulations do not indicate that an individual's age or tenure is a consideration in determining disability; they only indicate that an individual's overall experience in the types of jobs he has worked is relevant in determining whether he is substantially limited in the life activity of working. Based on the evidence presented, a reasonable jury could not determine that Branch is disabled within the meaning of the act. He has not shown he is significantly restricted in his ability to perform a class of jobs or a broad range of jobs in various classes as compared to a similarly-situated person with comparable training, skill, and abilities. Record of a Disability Branch could also qualify as disabled under the ADA if he has a history of, or 904 has been classified as having, a mental or physical impairment that substantially limits a major life activity. 29 C.F.R. § 1630.2(k). Branch asserts that he told his superiors about his condition, but admits that he was not diagnosed as having full-blown carpal tunnel syndrome until after Bridgestone terminated his employment. Branch's symptoms apparently manifested while at Bridgestone, though he was never placed on any medical restrictions or limitations. Branch has not pointed to any specific medical records or documents indicating that Bridgestone classified him as disabled. He has not even asserted that Bridgestone was aware of any such records. The mere accusations that Bridgestone employees were aware of his symptoms cannot possibly suffice to demonstrate a record of a disabling impairment. Furthermore, to qualify as a disability under the ADA, the impairment indicated in the record must be one that substantially limits a major life activity. Shepler v. Northwest Ohio Developmental Center, 205 F.3d 1341 (Table), 2000 WL 191496 (6th Cir.2000) (unpublished decision). As noted, no evidence suggests this is the case. Branch has not presented any evidence of a record of an impairment that substantially limited any major life activity. Regarded as Having such an Impairment Branch asserts that he told his supervisors about his condition and that they were therefore aware of his disability. Bridgestone asserts that it was never informed of Branch's exact limitations and that it always believed Branch could perform the duties required of him but simply refused to do so. Although there appears to be a dispute regarding whether Bridgestone was aware of Branch's limitations, this is not sufficient proof to survive summary judgment on the issue of whether Branch was "regarded as" being disabled within the meaning of act. Even if the Court accepts that Branch informed his supervisors of his condition, he does not meet the definition of "regarded as." As the Supreme Court has explained, to be "regarded as" having a disabling impairment, "it is necessary that a covered entity entertain misperceptions about the individual it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Sutton, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450, 466 (1999). Branch has not presented any evidence that Bridgestone entertained misconceptions regarding Branch's contention. See Shepler, 2000 WL 191496, at 5-6. Rather, Branch's only proof on this point is that he in fact has an impairment that limits the major life activity of working and that Bridgestone was aware of it. The "regarded as" requirement, however, demands that Bridgestone either be mistaken in assuming that Branch has a limiting impairment or else be mistaken in its assessment of the severity of his impairment. Branch has not presented proof that a jury could use to support either of these propositions. Could a reasonable jury find that Branch is otherwise qualified to perform the essential functions of his desired job, with or without reasonable accommodation? The ADA protects only qualified individuals with disabilities. "The term `qualified individual with a disability' means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Branch's argument on this point is strained at best. Bridgestone asserts that it believed Branch could perform the job of tire builder but simply refused to meet the minimum requirement of building eightythree 905 tires a day. Courts usually defer to the employer's judgment as to what is an essential function, and the Collective Bargaining Agreement serves as strong proof that the minimum tire requirement is legitimate. In any event, Branch does not dispute that building eighty-three tires a day was an essential function of the job as tire builder. Instead, he asserts that Bridgestone's belief as to his ability is "ample evidence" that no could perform the tasks of his job but simply chose not to. But in fact, Branch's entire case turns on the argument that he was physically unable to perform the repetitive tasks needed to do the job. The entire basis of his claim is that he cannot work with power tools, lift or push tires, or drive for more than two and one-half hours at a time. Instead of proving that he can perform the task of tire builder with or without some accommodation, his claims prove the contrary. Branch's better argument is that he can perform the essential functions of an alternative position. Branch never requested any accommodation that would help his performance as a tire builder, but instead requested that he be transferred to a new position. In ADA cases, the plaintiff has the burden of requesting an accommodation, of showing that it is reasonable and possible, and of showing that he can perform the essential functions of that job despite his disability. Monette, 90 F.3d at 1183-4. In his deposition, Branch noted that he could have performed a "light duty" trucking job, or could have performed a job in management or in the lab at Bridgestone. Branch's word alone is not enough to support his assertion that he could perform these jobs, especially if the Court accepts that Branch has a disability of some sort. Neither party really discusses these jobs or their essential functions at length. Bridgestone presumably does not discuss them because Branch admitted that his "only requested accommodation would have required Bridgestone to `bump' other employees from his or her job position [sic] at Bridgestone, to create a vacancy for Plaintiff." (Pl.'s Resp. Def.'s Stmt. Undisputed Mat. Facts, at ¶ 23.) The parties dispute whether this would have required breaching the Collective Bargaining Agreement, but that dispute is irrelevant because the Sixth Circuit has specifically noted that "a reassignment will not require creating a new job, moving another employee, promoting the disabled employee, or violating another employee's rights under a collective bargaining agreement." Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir.1998) (emphasis added). Given Branch's admission, as well as his inability to articulate specific jobs with essential functions he could perform, summary judgment in favor of Bridgestone is appropriate. Conclusion Branch has failed to present evidence that would allow a reasonable jury to conclude that he is disabled under the ADA. He has not shown that he is substantially limited in a broad class or range of jobs, that he ever had a record of a disability, or that Bridgestone entertained misconceptions about his condition. Furthermore, Branch has not demonstrated that he has the ability to perform the essential functions of an alternative job if Bridgestone had offered him such a job as a reasonable accommodation. Given Branch's failure to offer evidence sufficient to prove either of these two requirements, it is unnecessary to explore Bridgestone's other bases for summary judgment. Summary judgment in favor of Bridgestone is GRANTED. An appropriate order will enter. ORDER Before the Court is Defendant Bridgestone/Firestone's Motion for Summary Judgment on Plaintiff Randle Branch's claim under the Americans with Disabilities Act. For the reasons set forth in the accompanying memorandum, the Defendant's *906 Motion for Summary Judgment is GRANTED. It is so ORDERED. NOTES [1] Defendant Bridgestone argues that working should not be considered a major life activity. Citing to a recent Supreme Court case, Bridgestone notes that even though Congress gave several agencies the power to enact regulations for various parts of the ADA, Congress has not given any agency the authority to issue regulations with regards to the generally applicable provisions of the ADA, such as the definitional section. Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450, 460 (1999). Because the respective parties before it accepted the regulations as valid, the Supreme Court did not decide what level of deference should be given the EEOC's regulations dealing with the definitional section of the ADA. However, as the Court recognized, there may be some conceptual difficulty in defining "major life activities" to include work, for it seems "to argue in a circle to say that if one is excluded, for instance, by reason [of an impairment, from working with others] ... then that exclusion constitutes an impairment when the question you're asking is, whether the exclusion itself is by reason of handicap." ... Indeed even the EEOC has expressed reluctance to define "major life activities" to include working and has suggested that working be viewed as a residual life activity, considered, as a last resort, only, "if an individual is not substantially limited with respect to any other major life activity." (citations omitted). Nevertheless, after Sutton the Sixth Circuit has continued to recognize working as a major life activity. Sullivan v. River Valley School District, 197 F.3d 804, 811 (6th Cir.1999) ("Under the Act, working qualifies as a `major life activity.'").	{ "pile_set_name": "FreeLaw" }
617 F.Supp. 220 (1985) Harold NORDLICHT, on Behalf of himself and all others similarly situated, Plaintiff, v. NEW YORK TELEPHONE COMPANY, Defendant. No. 82 Civ. 3006-CSH. United States District Court, S.D. New York. May 2, 1985. 221 Deutsch & Frey, New York City, for plaintiff; Robert E. Frey, New York City, of counsel. Gerald E. Murray, Walter C. Reid, Harold S. Levy, New York City, for defendant. MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: This case concerns unspecified phone calls plaintiff made within Canada and from Canada to the United States. Plaintiff, a New York resident, directed the Canadian telephone company to bill the cost of these calls to his American telephone account with defendant New York Telephone. It is alleged that the Canadian company billed defendant for these calls in Canadian dollars and that defendant then billed plaintiff for the calls in the same amount of American dollars. At the time the exchange rate of the two dollars was not one-for-one, with the American dollar the stronger currency. As a result, New York Telephone would have billed plaintiff for, in effect, a higher price than it was charged. It allegedly pocketed the difference. Plaintiff filed this as yet uncertified class action in New York Supreme Court to recover the difference in value between the Canadian and American prices, alleging fraud and money had and received. Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441, alleging subject matter jurisdiction under two federal 222 question statutes, 28 U.S.C. §§ 1331 and 1337. Following some discovery, defendant has moved to dismiss under Rules 9(b) and 12(c), Fed.R.Civ.P. Plaintiff crossmoves for remand pursuant to 28 U.S.C. § 1447(c) or alternatively for summary judgment. I. Because the motion for remand goes directly to the Court's power to adjudicate this dispute, I address it first. Removal was proper only if subject matter jurisdiction exists in federal court. 28 U.S.C. § 1441. Defendant contends that jurisdiction can be found under the federal question statute, 28 U.S.C. § 1331. Section 1331 grants a federal forum to lawsuits "arising under" federal law. Plaintiff contends that his common law causes of action do not so arise. The leading case is Ivy Broadcasting Co. v. American Telegraph and Telephone Co., 391 F.2d 486 (2d Cir.1968). Plaintiff in Ivy operated radio stations. It contracted with the telephone company to provide communications service in connection with the broadcast of Syracuse University football games and New York political conventions. The telephone company allegedly provided inadequate service, ruining plaintiff's broadcasts. Plaintiff sued, stating causes of action for negligence and breach of contract. The district court sua sponte dismissed the complaint for want of subject matter jurisdiction, reasoning that the claims arose not under federal law but under the common law of New York State. The Court of Appeals reversed. The court acknowledged that the remedy which the plaintiff sought was not one granted by federal statutory law, since the acts alleged were not violations of specific provisions of the Communications Act of 1934 ("the Act"), 47 U.S.C. §§ 151-609, a statute which provides a comprehensive scheme of regulation for carriers such as the telephone company. However, the very comprehensiveness of the regulatory scheme established by the Act led the court to consider whether Congress intended to displace state law with federal common law in the governance of contracts involving communications carriers. After considering a number of United States Supreme Court cases in which a uniform federal rule was held to displace state law in actions involving the provision of telegraphic services, the court held that: ... questions concerning the duties, charges and liabilities of telegraph or telephone companies with respect to interstate communications service are to be governed solely by federal law ... [T]he states are precluded from acting in this area. Where neither the Communications Act itself nor the tariffs filed pursuant to the Act deals with a particular question, the courts are to apply a uniform rule of federal common law. 391 F.2d at 491. The application of federal common law was held to create federal subject matter jurisdiction. Id. at 493. The Supreme Court has since concurred in the latter conclusion. Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 1391, 31 L.Ed.2d 712 (1972) (pollution of interstate or navigable waters). Ivy is controlling here and creates federal subject matter jurisdiction. The holding of Ivy is both broad and absolute"questions concerning the duties, charges and liabilities of ... telephone companies with respect to interstate communications service are to be governed solely by federal law." 391 F.2d at 491. This case involves the charges for the provision of communications service. That it is framed in terms of a tort is irrelevantthe Ivy plaintiff, too, was pleading a tort. The only potentially significant difference between this action and Ivy is that this action concerns international and wholly foreign service. However, the regulatory scheme of the Act which persuaded the Ivy court to apply federal common law extends not only to the provision of interstate but also of foreign communication. Section 201 of the Act, 47 U.S.C. § 201, for example, which governs "service and charges," applies to "every common carrier engaged in interstate and foreign communication." Thus the reasoning 223 which led the Court of Appeals to apply federal common law to disputes over interstate service extends equally to disputes over foreign communication. Both are within the Act's regulatory scheme. As a result, federal jurisdiction exists, and whatever claims plaintiff is raising are governed by federal, not state, common law. Plaintiff argues that because rates for intra-Canada calls are not subject to regulation by the Act, Ivy is inapplicable. The specific rates for intra-Canada calls, however, are not at issue here. Plaintiff's concern is with New York Telephone's method of billing for these calls, not the actual price of the calls. Section 201(b) of the Act requires "all charges" in connection with the provision of interstate and foreign communications services to be "just and reasonable." This would appear to include the provision of billing services for foreign calls. In addition, the type of contract under which defendant provides this billing service for the Canadian telephone company must be filed with the Federal Communications Commission ("FCC") pursuant to 47 U.S.C. § 211, see also 47 C.F.R. § 43.51(a)(1), which may veto such contracts if they are "contrary to the public interest." 47 U.S.C. § 201(b). Plainly, billing for intra-Canada calls is subject to regulation under the Act. Plaintiff's objection is meritless. Removal was proper. II. The parties have cross-moved for judgment. Defendant styles its motion as one pursuant to Rule 12(c), Fed.R.Civ.P., but because it relies upon factual matters outside the pleadings which contradict the allegations of the complaint, it is more appropriately treated as a motion for summary judgment pursuant to Rule 56. Because plaintiff has himself filed a motion under Rule 56, I find no prejudice in treating both of the cross-motions as motions for summary judgment. Based on the evidence submitted by defendant, it appears that the true nature of the transactions between Canadian and American telephone companies is quite different from that stated in the complaint. The complaint asserts that whenever plaintiff made an intra-Canadian or international call from within Canada, the Canadian company would bill New York Telephone in Canadian dollars while New York Telephone would in turn bill plaintiff in stronger American dollars. New York Telephone allegedly kept the difference in value between the two currencies, which plaintiff alleges at the time of his calls amounted to 15 percent of their price. That is not the way it works. Not surprisingly, the true relationship between the two telephone companies and their customers is more complex. According to the affidavit of Mary Stachow, an employee of defendant who has work experience in the collection of revenues from international and foreign telephone calls, distribution of revenue collected in the United States to pay for intra-Canadian and Canada/United States telephone calls is (or was at the time of the incidents alleged) governed by a written agreement dated December 21, 1971. At the time of the incidents alleged in this lawsuit, the Bell System was still a unified monopoly. New York Telephone handled plaintiff's billing and local telephone service, but it was American Telephone and Telegraph Co. which actually settled accounts concerning international and foreign service. The agreement was signed by AT & T and several Canadian telephone companies, and AT & T acted as defendant's agent in dealing with the Canadian telephone companies in all the transactions described below. The Canadian companies themselves formed a corresponding consortium to deal with AT & T. The agreement establishes a uniform dollar rate for international calls. If payment for the call is to be collected in the United States, the price of the call is to be quoted and collected in American dollars; if the debt is to be collected in Canada, Canadian 224 dollars are quoted and collected.[1] Agreement, at 4, ¶ 5. The companies established in the agreement a system for dividing the revenues thus collected and agreed to settle accounts monthly. Any payments made to settle accounts are to be made half in "the equivalent of" Canadian and half in "the equivalent of" American dollars. Although the point is not entirely clear, I take this to mean that half of the payment is made in each currency, with the amounts of each currency adjusted to account for their relative values. The international phone rates specified in the agreement have been filed by defendant with the FCC as a tariff. Not only is defendant required by the tariff to collect these charges, it is required to do so in American dollars: In connection with service from points outside the United States ... to points within the United States, when charges to Customers are made by Telephone Companies in the United States rates as specified [in the tariff] ... in United States dollars, apply to all calls. FCC Tariff No. 263, Regulation No. 2.4.6. (March 26, 1979). Thus it appears that with regard to calls made between the United States and Canada, both FCC regulations and defendant's contractual commitments require it to apply rates calculated in American dollars. Those are also the rates which are quoted to Americans in Canada, in American dollars.[2] The simplistic "billed in Canadian dollars, paid in American dollars" scheme hypothesized by plaintiff in his complaint appears to have no basis in reality. By its terms the agreement applies only to international calls. However, according to the Reid and Stachow affidavits, filed by defendant in support of its motion, billing for intra-Canadian calls is also governed by the agreement. The price for intra-Canadian service is not, of course, regulated by the FCC. Rather, it is governed by tariffs filed with Canadian regulatory agencies. According to the affidavits, New York Telephone acts essentially as an agent for collection of payment for the calls. A Canadian company reports to defendant the price, in American dollars, which is to be charged for the intra-Canada call; defendant bills its customer that amount (again in American dollars); and defendant then turns that money over to the Canadian company as part of the agreement's monthly settlement process. If the agreement is adhered to, Americans are quoted rates for calls in American dollars, and the monthly settlement is made half in the equivalent of Canadian and half in the equivalent of American dollars. It is uncertain whether the intra-Canadian phone rates reported to the American companies are adjusted for relative exchange rates or are, like international rates, the same in either dollar. It is also unclear whether defendant turns over all of the money it collects or whether, contrarily, it is paid a fee for collecting payments for intra-Canadian calls. I have one reservation about defendant's account of its billing method for intra-Canadian calls. As far as I can see, nowhere in the agreement, which appears to deal solely with international calls, are intra-Canadian calls mentioned. Certainly the scheme outlined by Reid and Stachow is 225 not detailed in it. Nevertheless, in the absence of any contrary evidence I accept the sworn testimony of Reid and Stachow, the latter of whom worked in the division of New York Telephone responsible for handling these transactions, that collection and payment of bills for intra-Canada telephone calls are conducted in accordance with the terms of the agreement. Plaintiff has not submitted any contrary evidence. One would expect that plaintiff, having moved for summary judgment, would have submitted some proof to back up his allegationsindeed, to prove that there was no dispute that his allegations were true. In his memorandum of law, he states as a proposition of fact that he was quoted a price in Canadian dollars but billed in the same amount of American dollars. This is, of course, a somewhat different claim than the one he pleaded in his complaint. Even this claim, however, is supported by no affidavit of plaintiff, as one might expect when an essential element of his claim is that prices were quoted to him in a particular manner. Instead, plaintiff cites to three other sources of evidentiary support. The first is an excerpt from a deposition of Mary Stachow, the same individual who filed an affidavit in support of defendant's motion. At her deposition, Stachow was asked whether New York Telephone was billed in Canadian dollars for intra-Canadian calls. The question in context is actually somewhat ambiguous. It could be taken as asking the question left open abovewhether intra-Canadian tariffs are adjusted to account for the exchange rate when billed in the United States. In any event, her response was, "I'm not sure. They would tell us to bill $5.00 and we would bill $5.00." This plainly gives no support to plaintiff's position. The second purported source of evidence is a response by defendant to a request to admit. The request is for defendant to admit that Canadian telephone companies billed it in Canadian dollars for the type of calls at issue here. Defendant denied this. I am at a loss to see how this supports plaintiff. Finally plaintiff refers to a letter dated November 8, 1978 from a Mrs. L. Eng to a Mr. Herbert Deutsch, written on New York Telephone stationery. This letterwhich in any event is insufficient to create an issue of fact, being unsworn, unauthenticated hearsaystates only that rates for intra-Canada calls are set by Canadian authorities. This, too, gives no comfort to plaintiff. In short, plaintiff has presented no factual support for his claims.[3] Defendant's version of the facts stands undisputed. Based on defendant's evidence, it appears that the scheme for billing international and intra-Canada calls in the United States is quite different from that pleaded in the complaint. Canadian companies never "bill" defendant for international calls. The price for a Canada-United States call may be determined from a pre-set dollar tariff. If the call is to be billed to the individual customer in the United States, defendant figures the price from the tariff and charges in American dollars. If it is to be billed in Canada, a Canadian company calculates the charges and bills the same number of Canadian dollars. Once a month the two nations' telephone companies 226 split up their respective receipts according to a predetermined formula. Nor does a Canadian company "bill" defendant for intra-Canada calls in Canadian dollars. If a customer requests that such a call be billed to an American account, the Canadian company reports to defendant the occurrence of the call, the customer to whom the call is to be charged, and the price for the call. The price reported to defendant is calculated according to Canadian tariffs and is stated in (and is to be billed in) American dollars. Whether the price is adjusted for currency differences or is, like the rates for international calls, stated in the same number of Canadian and American dollars, is unclear. I infer from defendant's conspicuous silence on the question, however, that no adjustment is made. Defendant bills all such calls and, once a month, turns over what it collects to the Canadian company. Whether defendant keeps a portion of the proceeds as the equivalent of a "service charge" is unclear. Thus, defendant does not systematically skim off the difference between the Canadian and American price of foreign and international calls billed in the United States. It does appear to be true, however, that the real price of such calls to an American customer varies depending upon whether he or she pays for them immediately, in Canada, or has them charged to an account maintained in the United States. The difference in real price is equivalent to the difference in value of the Canadian and American dollars. It remains to consider the legal consequences of this state of affairs. III. Defendant raises the "filed tariff" doctrine as a complete defense to the claims regarding the Canada-United States calls. This doctrine was first pronounced by the Supreme Court in an anti-trust action entitled Keogh v. Chicago & Northwestern Railway Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922). Plaintiff in Keogh alleged that the defendants had concocted rail shipping rates in violation of the Sherman Act. The rates were charged under a tariff filed with and approved by the Interstate Commerce Commission. In dismissing the action, Justice Brandeis essentially held that a shipper may not be held liable for damages in the nature of an overcharge when charging an approved tariff: Section 7 of the Anti-Trust Act gives a right of action to one who has been "injured in his business or property." Injury implies violation of a legal right. The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier. 260 U.S. at 163, 43 S.Ct. at 49. According to the Second Circuit, "[t]he rationale [for the doctrine] is that the regulatory agency determines the legal rate and the utility must collect it while it is in effect." City of Groton v. Connecticut Light & Power Co., 662 F.2d 921, 929 (2d Cir.1981).[4] I conclude that "filed tariff" doctrine bars any recovery by plaintiff for the cost of Canada-United States calls under a contractual theory such as money had and received. Money had and received is a somewhat nebulous doctrine. It is sometimes spoken of as quasi-contractual in nature, see Miller v. Schloss, 218 N.Y. 400, 406, 113 N.E. 337 (1916), and is grounded in equity. Ordinarily it is employed when money which in good conscience should belong to one party has somehow found its 227 way into the hands of another. See Northern Trust Co. v. Chase Manhattan Bank, N.A., 582 F.Supp. 1380, 1384 (S.D.N.Y. 1984). It may be used, for example, to recover money which has been paid to one on the understanding that it be paid to another when the second payment is not or cannot be made. See Unger v. Travel Arrangements, Inc., 25 A.D.2d 40, 266 N.Y. S.2d 715, 720-721 (1966). Reflecting its general nature, the elements of the cause of action are stated broadly. The Second Circuit recently formulated them thus: 1) receipt by defendant of money belonging to plaintiff, 2) a benefit to defendant from receipt of the money, and 3) a finding that defendant should not equitably be permitted to keep the money. Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, N.A., 731 F.2d 112, 125 (2d Cir.1984). The filed tariff doctrine is relevant to the third element. In order to recover, plaintiff must show that he has a superior equitable claim on the money at issue. The existence of a filed tariff essentially neuters any claim plaintiff might have that the utility's adherence to the rate is improper or inequitable. The filed tariff doctrine defines such a rate as wholly proper. In this case, the filed tariff authorized defendant to charge the specified rates in American dollars. This is precisely what it did. So long as defendant provided the requisite service, it was lawfully entitled by those tariffs to charge those rates. The filed tariff doctrine thus insulates defendant from any equitable claim that its charging these rates was improper.[5] Because the rates for intra-Canada calls are set by Canadian tariffs, defendant may not invoke the filed tariff doctrine to protect itself from liability for those calls. Nevertheless, it seems likely that a claim for money had and received concerning the intra-Canada calls will be unsuccessful. First, it is clear that if, as defendant seems to claim, rates for intra-Canada calls were quoted to plaintiff in American dollars, equity would not demand any refund to plaintiff. The quote constituted in essence an offer and plaintiff's making the call contractually committed him to pay the tariff rate in American dollars. Second, if the rate was quoted by a Canadian company in Canadian dollars, once defendant surrendered all of the money collected for the call to the Canadian company defendant was released from liability. In this circumstance, defendant was acting as a billing agent for the Canadian company. Once defendant paid its principal the entire sum collected, it was relieved of any liability to plaintiff under the doctrine of money had and received. Unger, supra, 266 N.Y.S.2d at 721. Plaintiff's remedy would lie in Canada. If plaintiff was quoted in Canadian dollars, he may, however, be able to regain any service charge which defendant retained. See Unger, supra, 266 N.Y.S.2d at 722 (defendant, essentially a broker, forced to return retained commission on unconsummated sale to plaintiff but released from liability on the remaining sale price because defendant had turned over remainder to seller). IV. Claims of fraud are different. The filed tariff doctrine is designed to protect utilities charging filed rates for lawfully provided service. It is of no help to a defendant which fraudulently induces a plaintiff to pay a filed rate or which otherwise exacts payment by fraud. There is 228 nothing in the policy underpinnings of the doctrine which would cause it to protect a defendant which unlawfully exacts payment, even at a lawful rate. Plaintiff, however, has yet to state a viable claim for fraud. I find defendant's motion to dismiss for failure to plead fraud with particularity wholly justified. Rule 9(b), Fed.R.Civ.P. A fraud plaintiff is required to state in his or her complaint not only the specific fraudulent misrepresentations alleged but also the time when those misrepresentations occurred and the circumstances of their occurrence which give rise to an inference of fraud. Ross v. A.H. Robins Co., 607 F.2d 545, 558 (2d Cir.1979). Plaintiff has not even pleaded any misrepresentations by defendant, let alone the time and circumstances of their occurrence. He simply states (falsely, it appears) that defendant keeps the difference between the American and Canadian price for these calls and that this constitutes fraud. Such conclusory pleading is wholly inadequate. At one point in his memorandum of law plaintiff claims that defendant quoted him a price in Canadian dollars and charged him in American dollars. If plaintiff wishes actually to plead this, rather than merely to have his lawyers ineffectually assert it in a memorandum of law, he must state, at a minimum, the time at which this misrepresentation was made to him, the person who made it, and the circumstances which would cause one to infer a fraudulent intent from it. At other points in his memorandum of law plaintiff seems to argue that it was defendant's failure to inform him of the option of paying immediately in Canadian dollars which constituted the fraud he wishes to allege. If this is so, he must allege the occasions on which this material information was withheld from him, the circumstances which created in defendant a duty to disclose the information, intent, deception, reliance, and damages. See Aaron Ferer & Sons, supra, 731 F.2d at 123; Kaplan v. ITT-U.S. Transmission Systems, Inc., 589 F.Supp. 729, 736 (E.D.N. Y.1984). Because plaintiff's fraud pleading is inadequate, I dismiss the claims without prejudice, and with leave to replead. V. The parties extensively briefed the issue of primary jurisdiction. Defendant argues that this action should be stayed pending referral of plaintiff's claims to the FCC. I find it unnecessary to discuss the issue in the detail which the parties devoted to it. Judge Glasser covered the same ground in comprehensive fashion in his recent decision in Kaplan v. ITT-U.S. Transmission Systems, Inc., supra, 589 F.Supp. at 733-736. For the reasons stated therein, I conclude that application of the doctrine of primary jurisdiction is inappropriate to the common law causes of action pleaded in this case. Plaintiff is entitled to an immediate judicial forum. I deny defendant's motion to stay the action on this ground. Finally, defendant also raises a non-dispositive statute of limitations argument, asserting that recovery for all calls made more than two years prior to the filing of the lawsuit is barred on grounds of the two-year statute of limitations found in 47 U.S.C. § 415(b). Section 415(b) by its express terms bars only complaints filed with the FCC more than two years after accrual of a claim. However, an extensive analysis of the statutory history led the court in Ward v. Northern Ohio Telephone Co., 251 F.Supp. 606 (N.D.Ohio 1966), aff'd. per curiam, 381 F.2d 16 (6th Cir.1967) to conclude that § 415(b) was also intended to apply to suits filed in district court. The Ward decision has been unanimously adopted by those few courts which have considered the issue in the intervening years. See Pavlak v. Church, 727 F.2d 1425 (9th Cir.1984); Swarthout v. Michigan Bell Telephone Co., 504 F.2d 748 (6th Cir.1974); Cole v. Kelley, 438 F.Supp. 129 (C.D.Cal.1977); Hofler v. American Telephone and Telegraph Co., 328 F.Supp. 893 (E.D.Va.1971). However, because of the difficulty which sometimes arises in determining when a cause of action for fraud accrues, I will not *229 hold at this time that recovery for all calls made more than two years before the filing of the action is necessarily barred. I do note, however, that a two year statute of limitations is apparently applicable. Application of the statute to these facts awaits further fleshing out of the details of the fraud. VI. In conclusion, defendant's motions to dismiss this action entirely, to stay it, or to refer it to the FCC are denied, as is plaintiff's motion for summary judgment. Summary judgment is granted to defendant on the claim for money had and received regarding international (Canada-United States) telephone calls. Defendant's motion to dismiss the fraud claims for failure to comply with Rule 9(b), Fed.R.Civ.P., is granted. Plaintiff is granted twenty days' leave from the date of filing of this decision to file an amended complaint spelling out his fraud claims in proper detail. In order that it may be determined whether plaintiff states a viable claim for money had and received concerning the intra-Canada calls, plaintiff is directed to replead this claim, stating when, by whom, and in what currency the intra-Canadian calls were quoted to him, and whether he informed the person making the rate quote that he intended to bill the call to his New York account. If no amended pleading is submitted within that time, it will be assumed that plaintiff cannot plead viable claims, and the entire action will be dismissed with prejudice. In light of the apparently baseless nature of many of the factual allegations in plaintiff's initial complaint, I find it appropriate to remind him and his lawyers of the requirement of Rule 11, Fed.R.Civ.P., that every attorney who signs a pleading does so only upon finding "after reasonable inquiry [that the pleading] is well grounded in fact and is warranted by existing law." Imposition of sanctions is mandatory when Rule 11 is violated. I find no merit in the remainder of defendant's arguments. It is SO ORDERED. NOTES [1] In what appears to be an effort to mislead the Court as to the nature of the agreement, plaintiff in his initial memorandum of law, at 7, quotes only the second half of the relevant sentence in the agreement, which reads in full, "For [telephone service] the charges for which are payable in Canada, the rates shall be quoted to and payable by the customer in Canadian currency." Of course, by leaving out the initial phrase, "the charges for which are payable in Canada," plaintiff seeks to create the impression that the clause concerning quotation in Canadian currency somehow applies to his situation. It does not, and it is worth noting that his complaint contains no allegation that he was ever quoted prices in Canadian currency. I do not appreciate plaintiff's seeming attempt to create the contrary impression through partial quotation. [2] As noted in footnote 2, supra, plaintiff does not plead that he was ever quoted a price in Canadian dollars. Even if he was, however, the misrepresentation would appear to have been committed by a Canadian telephone company, not defendant. [3] There is really no mystery in plaintiff's failure to submit an affidavit alleging that misrepresentations had been made to him individually. Plaintiff filed this action as a class action and will presumably seek to have himself declared a representative class plaintiff. The propriety of class treatment depends in part upon whether the fraud alleged was systematic or aberrational. It is no doubt plaintiff's hope to demonstrate that it was standard practice for defendant to quote call prices in Canadian dollars and bill in American dollars. Under such circumstances, class treatment would appear reasonable. If, on the other hand, quotation in American dollars was the norm and plaintiff's claimed experience was aberrational, class treatment is more dubious. Neither party has submitted any evidence of defendant's standard practice, but the FCC tariff and defendant's contractual commitments require it to quote prices in American dollars for calls which are to be billed in the United States. If its standard practice deviates from thisand I hasten to add there is absolutely no evidence that this is soa serious charge of fraud could be made out. [4] The filed tariff doctrine, however, does not immunize a regulated utility from all liability. For example, under certain circumstances it does not shield a utility from liability when charging an ultimately disapproved tariff, id., at 929; Litton Systems, Inc. v. American Telephone & Telegraph, Inc., 700 F.2d 785, 820 (2d Cir. 1983), and it provides no protection from lawsuits not directly connected with rates. See, e.g., Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). [5] In addition to the filed tariff doctrine, at this point in its papers defendant raises the issue of exhaustion of administrative remedies. It would be proper to require exhaustion only if plaintiff were challenging the reasonableness of defendant's tariff rate or of its practice of billing in American dollars without adjusting for the value of the currency. I do not read the complaint as making such a challenge, although the question is complicated by the mistaken allegations in the complaint. Plaintiff is not complaining about the existence or propriety of the tariff and the practice of charging in unconverted dollars per se. He is complaining about defendant's failure to tell him that he had the option of saving money by paying for his calls in Canada. Consequently, it is not the practice which plaintiff challenges but defendant's failure to make him aware of it. The case resembles Nader v. Allegheny Airlines, Inc., 445 F.Supp. 168 (D.D.C.1978). No exhaustion is necessary.	{ "pile_set_name": "FreeLaw" }
202 S.W.3d 563 (2005) TIMOTHY LEE LITTLETON, Appellant v. WINNIE E. ALBERT-LITTLETON, Appellee CA 04-581 Court of Appeals of Arkansas, Division IV Opinion Delivered February 9, 2005 TERRY CRABTREE, Judge Appellant brings this appeal from an order setting aside a divorce decree obtained by default. He contends that the trial court erred in finding that there had been no strict compliance with the requirements for service by warning order. We dismiss because the order from which the appeal has been taken is not appealable. The parties in this case were married in January 1999 and separated in November 2000. They had one child, who lived with appellee upon their separation. Appellant filed a complaint for divorce on July 15, 2003, on grounds of eighteen months' separation. Service of the complaint on appellee was attempted by warning order. Appellant was granted a divorce and awarded custody of the child by default in a decree entered on September 16, 2003. On December 2, 2003, appellee filed a motion to set aside the decree alleging that appellant had failed to strictly comply with the requirements of Ark. R. Civ. P. 4(f) in attempting to perfect service by warning order. After a hearing, the trial court entered an order setting aside the decree on January 28, 2004. This appeal followed. Appellant frames his argument on appeal as "Whether the defendant carried her burden of proof at the trial to set aside the divorce decree in the instant cause?" In response, appellee asserts that the order from which this appeal has been taken is not a final order. Our decision in this matter is controlled by the supreme court's opinion in Epting v. Precision Paint & Glass, Inc., 353 Ark. 84, 110 S.W.3d 747 (2003), which demands that we dismiss the appeal. In Epting, the supreme court reexamined the law pertaining to the appealability of orders setting aside default judgments in light of the 1990 amendments to Rules 55 and 60 of the Arkansas Rules of Civil Procedure.Id. Prior to the amendments, only those orders setting aside a default judgment that were filed ninety days after the entry of the default judgment were subject to an immediate appeal. Id. In Epting, however, the court ruled that the ninety-day distinction no longer applied because the provision in the amended version of Rule 60(c) for setting aside orders after ninety days expressly excluded default judgments. Referencing federal law on the subject, the supreme court held that orders setting aside default judgments are not final for purposes of appeal "where the setting-aside paves the way for a trial on the merits." Epting at 93, 110 S.W.3d at 751 (quoting Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1028 (9th Cir. 1987)). The court concluded that the order setting aside the default judgment did pave the way for trial because the order stated that the appellee was "allowed a period of twenty (20) days hereafter to file an answer to the allegations" of the complaint. Since the complaint was still pending, the order setting aside the default judgment was not appealable because it did not meet the test of discharging the parties from the action or concluding their rights to the subject matter in controversy. In the case before us, the order setting aside the default judgment was filed more than ninety days after entry of the default decree. In accordance with Epting, the order cannot be immediately appealed if the order paved the way for a trial on the merits. The order entered by the trial court incorporated a letter opinion which stated "[i]f Mr. Solomon [appellee's attorney] agrees to accept service on behalf of the Defendant, the issue of custody may be addressed on March 12 or 26 or upon agreement of the parties." Our review of the record discloses that appellee has filed an answer to appellant's complaint, as well as a cross-complaint for divorce, and that a scheduling order was entered setting a hearing on March 12, 2004. Since the parties' claims are still pending in the trial court, we hold that the order appealed from is not final, and we dismiss the appeal. Dismissed. GRIFFEN and VAUGHT, JJ., agree.	{ "pile_set_name": "FreeLaw" }
868 F.2d 1277 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Sidney FISCHLER, Petitioner,v.DEPARTMENT OF the COMMERCE, Respondent. No. 88-3410. United States Court of Appeals, Federal Circuit. Feb. 13, 1989.Rehearing Denied March 9, 1989. Before BISSELL and ARCHER, Circuit Judges, and EDWARD D. RE, Chief Judge.* PER CURIAM. DECISION 1 Sidney Fischler appeals the final decision of the Merit Systems Protection Board (Board), Docket No. DC03518710547, affirming his separation from the Department of Commerce by reduction-in-force (RIF) procedures. We have carefully considered Fischler's arguments, but substantial evidence supports the Board's factual determinations that a budget shortage at the National Bureau of Standards' National Voluntary Laboratory Accreditation Program caused the RIF and that the Department of Commerce properly followed the RIF procedures in not offering him the position held by Nora M. Jason. Accordingly, we affirm the Board's decision based on the Administrative Judge's December 30, 1987 opinion. * The Honorable Edward D. Re, Chief Judge, United States Court of International Trade, sitting by designation pursuant to 28 U.S.C. Sec. 293(a) (Supp. IV 1986)	{ "pile_set_name": "FreeLaw" }
405 F.Supp.2d 3 (2005) CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. No. Civ.A. 04-1944(RJL). United States District Court, District of Columbia. July 11, 2005. Melanie Togman Sloan, Citizen for Responsibility & Ethics, Washington, DC, for Plaintiff. Felicia L. Chambers, U.S. Department of Justice, Washington, DC, for Defendant. 4 MEMORANDUM OPINION LEON, District Judge. This is an action brought by the plaintiff, Citizens for Responsibility and Ethics in Washington ("CREW"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended, seeking records and documents from two divisions of the Department of Justice ("DOJ" or "defendant"). Presently before the Court is defendant's motion for summary judgment. After due consideration of the parties' submissions, the relevant law, and the entire record herein, defendant's motion is GRANTED. I. FACTUAL BACKGROUND On February 27, 2004, plaintiff simultaneously served individual FOIA requests on the DOJ's Office of Legal Counsel ("OLC") and Office of Information and Privacy ("OIP"), seeking, in essence, any records relating to communications between these respective offices and "any member of the staffs of United States Senate Judiciary Committee [(`Committee')] Chairman Orrin Hatch and Senate Majority Leader Bill Frist . . . from June 2001 through the present, regarding judicial nominations." Ex. 1 to Decl. of Paul P. Colborn ("Colborn Decl.") at 1; Ex. 1 to Decl. of Paul P. Colborn ("Colborn Decl.") at 1. The documents sought concerned allegations that Republican staff members on the Committee improperly accessed the files of Democratic staff members on the Committee. See Compl. ¶¶ 14-23. In its FOIA request to OLC, plaintiff sought communications between the OLC and specified members of the Senate, the DOJ, and the White House. Ex. 1 to Decl. of Paul P. Colborn ("Colborn Decl.") at 1. In its request to OIP, plaintiff sought records maintained at the Offices of the Attorney General, the Deputy Attorney General, the Associate Attorney General, the Office of Legal Counsel, and the Office of Legislative Affairs. Ex. 1 to Decl. of Paul P. Colborn ("Colborn Decl.") at 1. The plaintiff no longer contests the adequacy of OLC's records search. See Pl.'s Opp'n at 10 n. 3. Plaintiff focuses instead on the adequacy of OIP's record search. In this regard, the Deputy Director of the OIP, Melanie Ann Pustay ("Pustay"), is the final decision maker for the entity responsible for searching and reviewing records within the Offices of the Attorney General, Deputy Attorney General, Associate Attorney General, Legislative Affairs, and Legal Policy pursuant to FOIA requests. Decl. of Melanie Ann Pustay ("Pustay Decl."), ¶ 1. Here, in response to plaintiff's FOIA request, Ms. Pustay first notified the plaintiff, on June 21, 2004, that no responsive documents were located in the Office of Legal Policy. Ex. C to Pustay Decl. On January 5, 2005, after the plaintiff had filed the instant complaint, OIP notified plaintiff that no responsive documents were found in the Offices of the Deputy Attorney General or Associate Attorney General, but that eighteen pages of documents pertaining "generally" to the investigation were found in the Office of Legislative Affairs. Ex. D to Pustay Decl. OIP released these eighteen pages to the plaintiff on February 16, 2005. Ex. F to Pustay Decl. II. ANALYSIS A. Summary Judgment and The Freedom of Information Act Defendant has moved for summary judgment on grounds that plaintiff's FOIA request is moot because all documents responsive to plaintiff's request have been released. Def.'s Mot. for Summ. J. at 4-5. Plaintiff, in contrast, contends that the request is not moot because the defendant's search was inadequate and, thus, more responsive records exist that should be disclosed. Pl.'s Opp'n at 8-13. 5 Summary judgment is appropriate when the declarations together with the pleadings substantiate that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law. FED. R. CIV. P. 56(c). In a FOIA action, summary judgment is only appropriate when the agency seeking summary judgment demonstrates that it engaged in an adequate search for all relevant documents. See Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984); Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990) ("In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested."). The Court assesses the adequacy of an agency's search "by relying upon non-conclusory, detailed agency affidavits that have been given in good faith." Schrecker v. U.S. Dep't of Justice, 217 F.Supp.2d 29, 33 (D.D.C.2002); see also Iturralde v. Comptroller of the Currency, et al., 315 F.3d 311, 313-14 (D.C.Cir.2003) ("[T]he agency may meet its burden by providing a reasonably detailed affidavit,. . . .") (internal quotations omitted). In the final analysis, "[a]gency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotation omitted). For the following reasons, the Court concludes that the agency's search was reasonable and adequate. B. The Adequacy of OIP's Search Plaintiff speculates that, given the magnitude of the scandal surrounding the allegations that Republican staffers on the Senate Judiciary Committee improperly accessed the files of Democratic staff members on the Committee, the DOJ likely possesses more than eighteen pages of responsive documents. Pl.'s Opp'n at 11-12. On an even more fundamental level, plaintiff contends the defendant relies upon "conclusory" and, thus, insufficient declarations in support of its motion. Id. at 12. The Court disagrees. Defendant has submitted two declarations from Melanie Ann Pustay, the person charged with overseeing document searches in connection with FOIA requests served on OIP. See generally Pustay Decl.; Second Decl. of Melanie Ann Pustay ("2nd Pustay Decl."). These declarations set forth the terms and nature of OIP's search and, perhaps even more significantly, they state that the locations most likely to contain responsive documents were extensively searched. See Iturralde, 315 F.3d at 313-14 (noting that an agency can meet its burden by submitting an affidavit "setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched.") (internal quotations omitted). According to Ms. Pustay's declarations and plaintiff has not provided any persuasive evidence to the contrary on this point OIP searched the Offices of the Attorney General, the Deputy Attorney General, the Associate Attorney General, Legislative Affairs and Legal Policy. See 2nd Pustay Decl. ¶ 2. OIP's search, for example, included: (1) the records management electronic database maintained by Legislative Affairs, id. ¶¶ 3-5; (2) the central database of the Department Executive Secretariat, which is the official records repository for the Offices of the Attorney General, Deputy Attorney General, and Associate Attorney General, id. ¶ 10; and (3) the senior leadership offices within the DOJ, id. ¶ 12. Upon due consideration of Ms. Pustay's declarations and the entire *6 record herein, the Court concludes that the declarations are detailed, non-conclusory, and given in good faith. And, although plaintiff speculates that more responsive documents must exist, Pl.'s Opp'n at 11-12, mere speculation, without more, is not enough to create a question of fact as to the adequacy of OIP's search. See Oglesby, 920 F.2d at 61 n. 13. Indeed, "the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Iturralde, 315 F.3d at 315. Accordingly, having found OIP's search adequate, the plaintiff's FOIA claim is now moot and the defendant is entitled to judgment as a matter of law. See, e.g., Drake v. F.A.A., 291 F.3d 59, 67 (D.C.Cir.2002) (noting plaintiff's FOIA claim mooted by the disclosure of requested information).[1] III. CONCLUSION For the foregoing reasons, the Court GRANTS defendant's motion for summary judgment. An appropriate Order will issue with this Memorandum Opinion. FINAL JUDGMENT For the reasons set forth in the Memorandum Opinion entered this date, it is, this 11th, day of July 2005, hereby ORDERED that defendant's motion for summary judgment [#8] is GRANTED; and it is further ORDERED that judgment is entered in favor of the defendant, and the case is dismissed with prejudice. SO ORDERED. NOTES [1] Indeed, the Court notes that plaintiff essentially concedes in its opposition brief that a finding that the defendant's search is adequate moots its FOIA request. See generally Pl.'s Opp'n.	{ "pile_set_name": "FreeLaw" }
22 Cal.App.4th 152 (1994) 27 Cal. Rptr.2d 279 UNITED ENTERPRISES, LTD., Plaintiff and Appellant, v. ASSESSMENT APPEALS BOARD OF SAN DIEGO COUNTY, Defendant and Appellant. Docket No. D015167. Court of Appeals of California, Fourth District, Division One. February 1, 1994. 155 COUNSEL Lempres & Wulfsberg, B. Suzanne Farley and Gregory R. Aker for Plaintiff and Appellant. Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel and Leonard W. Pollard II, Deputy County Counsel, for Defendant and Appellant. [Opinion certified for partial publication.[1]] OPINION FROEHLICH, Acting P.J. In this tax refund case the County of San Diego (County) appeals from the judgment of the trial court which ordered County to reduce the assessment on certain property. The primary issue on appeal involves the proper application of Revenue and Taxation Code[2]156 section 1604. Under section 1604, when a taxpayer applies for reduction of an assessment, the Assessment Appeals Board (the AAB) must hear and decide the matter within two years, subject to certain extensions and/or exceptions discussed hereafter. If the AAB fails to meet those time limits, the taxpayer's opinion of value becomes the assessed value. The trial court ruled the AAB's decision here was untimely and ordered that the taxpayer's opinion of value be enrolled as required by section 1604. This appeal followed. I. Factual Background The dispute arose because County contended, and United Enterprises, Ltd. (taxpayer) denied, that certain property owned by taxpayer was subject to reassessment due to a "change in ownership." In 1987 the county assessor notified taxpayer that its property would be reassessed based on an alleged change of ownership of its property in 1983. Because this appeal turns on whether the AAB's decision on taxpayer's application for equalization was timely, and whether various estoppel periods may be applicable, the dates of events are significant. On September 15, 1987, taxpayer filed its application seeking equalization of the 1984, 1985, 1986 and 1987-1988 assessments. It claimed that reassessment was improper because no "change of ownership" had occurred within the meaning of Proposition 13; and it also asserted that it wished to reserve the right to challenge the individual revaluations in the event the change of ownership issue was decided adversely to taxpayer. This September 15, 1987 filing began the two-year period under section 1604 within which the AAB was required to act on taxpayer's application.[3] Nine months later, on June 21, 1988, the AAB held its first hearing on the application. Prior to that hearing, however, the parties agreed (1) the "change of ownership" issue should be bifurcated from the "valuation" question, (2) the June 21 hearing would be devoted only to the "change of ownership" issue, and (3) the valuation question would be reserved until a decision was rendered on the question of "change of ownership." 157 No decision was made at the June 21 hearing, and the matter was continued until August 23, 1988. The August 23 hearing had initially been reserved for the valuation issue. However, because taxpayer requested and was granted the opportunity to file a reply brief in opposition to County's brief on the change of ownership question, the August 23 hearing was devoted to issues raised by taxpayer's reply brief. At the close of the August hearing, the AAB indicated the valuation issue would be scheduled for a later date. However, because the AAB had refused taxpayer's attempts to introduce new evidence at the August 23 hearing, taxpayer objected to an early hearing on the valuation issue based on its intention to appeal from the AAB's refusal to permit new evidence. Although the AAB suggested a November date for the hearing on valuation, taxpayer's counsel's impending child delivery date forced the schedule into January 1989. Accordingly, the valuation hearing was scheduled for the first available date in January and ultimately set for January 20, 1989. However, all proceedings ceased when, on October 12, 1988, taxpayer filed a petition for a writ of mandate to force the AAB to allow new evidence. The trial court issued an order to show cause and stayed all proceedings by the AAB. The hearing on the order to show cause was scheduled for November 9 but was continued to December 28. Prior to the December 28 hearing on taxpayer's writ petition, taxpayer was informed the AAB had dropped the January 20, 1989 hearing from its calendar. The trial court heard argument on the 1988 writ petition and took the matter under submission. It issued its ruling denying taxpayer's petition on January 3, 1989, and on that date vacated the stay. On May 16, 1989, the AAB adopted findings on the first issue, concluding there had been a change of ownership. On September 15, 1989, the two-year period for acting on taxpayer's application, if no extension were available, would have lapsed. In late 1989 the AAB notified the parties that the valuation issue would be heard on February 21 and 22, 1990. An "extended" period, as calculated by the trial court below, taking into consideration the litigation stay, elapsed on February 4, 1990. On February 9, 1990, taxpayer filed a complaint for a refund of overpaid taxes, alleging that no change of ownership had occurred. Taxpayer appeared at the February 21, 1990 AAB hearing and requested a continuance to allow new counsel to prepare for the hearing and to explore possible settlement of the lawsuit and valuation issue. Taxpayer's request was granted. At that time the AAB's clerk asked Mr. Chambers, an apparent 158 agent for taxpayer, to sign a written waiver of the two-year statute, and Chambers agreed to do so. The hearing was rescheduled for April 11. On two subsequent occasions the clerk for the AAB inquired of Mr. Chambers as to when the AAB could expect the written waiver. Mr. Chambers initially assured the AAB it would be forthcoming. However, he subsequently advised the AAB that in light of the impending April 11 hearing, it seemed unnecessary to file such waiver. In early April the parties called the AAB, stated a settlement had been reached, and requested cancellation of the April 11 hearing. The AAB complied. On May 16, 1990, however, taxpayer notified the AAB of taxpayer's claim that the AAB had failed to comply with the two-year rule under section 1604, and demanded that taxpayer's opinion of value be entered on the tax roll. The AAB scheduled a hearing to determine whether it had failed to act timely and to hear the valuation issue if appropriate. Taxpayer appeared at the hearing, objecting on the grounds the AAB had failed to act timely and had failed to comply with subdivisions (c) and (d) of section 1604. On August 22, 1990, the AAB decided it had timely acted or was excused from timely acting. At that time the AAB also issued its decision on the valuation issue. II. The Current Lawsuit Taxpayer thereafter filed this action seeking a writ of administrative mandamus. Arguing the AAB had failed to act timely, taxpayer sought (1) to stay enforcement of the August 22, 1990 ruling of the AAB, (2) to compel the AAB to vacate that ruling, and (3) to compel the AAB to enroll the taxpayer's opinion of value under section 1604. Taxpayer also sought attorney fees. The trial court ruled in favor of taxpayer. The court concluded: (1) the two-year statute was tolled for the duration of pendency of the 1988 petition for writ of mandate but nevertheless expired on February 4, 1990; (2) there was "no authority" to allow equitable tolling of the statute; and (3) it could not enforce the alleged 1990 settlement agreement. Accordingly, the court ordered the AAB to vacate its decision and enroll taxpayer's opinion of value. It subsequently awarded taxpayer costs but denied the request for attorney fees. 159 County's appeal raises numerous challenges, which we will address seriatim.[4] III. Section 1604 Applies to Appeals of Reassessments Based on Change of Ownership (1a) County first argues the two-year time limit under section 1604, subdivision (c) is not applicable here because taxpayer's property was reassessed based on the unreported "change of ownership" which occurred in 1983. County relies on subdivision (d) of section 1604, which provides: "If, pursuant to subdivision (c), the applicant's opinion of value has been placed on the assessment roll, that value shall remain on the roll until the [AAB] makes a final determination on the application. The value so determined by the [AAB], plus appropriate adjustments for the inflation factor, shall be entered on the assessment roll for the fiscal year in which the value is determined. No increased or escape taxes other than those required by a purchase, change in ownership, or new construction, or resulting from application of the inflation factor to the applicant's opinion of value shall be levied for the tax years during which the [AAB] failed to act." The present case involved reassessment based on a change of ownership. County claims the language that "[n]o increased or escape taxes other than those required by a ... change in ownership ... shall be levied for the tax years during which the [AAB] failed to act" suggests, by negative implication, that appeals of reassessments are allowed to extend beyond the two-year limit if the case involves a change of ownership. We disagree. (2) The purpose of section 1604 is to assure a prompt resolution of applications for reduction of assessments. (Shell Western E & P, Inc. v. County of Lake (1990) 224 Cal. App.3d 974, 984-985 [274 Cal. Rptr. 313].) The section is designed to prevent bureaucratic delay and forestalling of the return of taxpayer's money, by providing a significant disincentive for a taxing authority to delay resolution of the case. (Ibid.) (1b) We reject County's claim that section 1604, subdivision (d) carves out exceptions to the two-year rule. First, County's interpretation would effectively gut the statute, because all of the principal events permitting reassessment (i.e., change of ownership, new construction, and inflation adjustments) would be exempted from the two-year rule. Second, the statutory language and the surrounding legislative history indicate the intent of section 1604 subdivision (d)'s "other than" language 160 was distinct and limited. It would permit reassessment based only on new events occurring during the period of the AAB's consideration of the taxpayer's application. The language itself specifies "[n]o increased or escape taxes ... shall be levied for the tax years during which the [AAB] failed to act." (Italics added.) This language evinces an intent that where an applicant has applied to reduce his taxes for a prior year and the AAB fails to act within two years, the taxpayer prevails and his taxes must be reduced both for the year listed in the application and for the years his application sat idle. However, though the application for reduction is essentially deemed granted by lapse of time, events which occur while the application is pending ("the tax years during which the [AAB] failed to act") can be the basis for reassessment. That such was the intent of the Legislature is confirmed by the surrounding legislative history. Substantial legislative history shows that Senate Bill No. 1685, which added subdivision (d) to section 1604 in 1986 (see Stats. 1986, ch. 982, § 28), was intended to clarify that the failure to act on an application would not force the assessor permanently to enroll the taxpayer's opinion of value where intervening changes occurred.[5] Thus, subdivision (d) both clarifies that the taxpayer's value controls only "until the [AAB] makes a final determination on the application" and exempts any reassessable events which occurred in the intervening period from the operation of the "automatic reduction" of section 1604. There is no indication the language on which County relied had any purpose other than to exempt from the freeze those reassessable events which occurred after the taxpayer's application was filed. 161 IV. The AAB Failed to Issue Its Final Decision on Valuation Within the Period Prescribed by Section 1604 (3a) We turn next to the critical inquiry: Was the AAB's decision on valuation timely?[6] Section 1604 requires rendition of a decision within two years, although compliance with the two-year rule is partially excused where pending litigation relates directly to the issues involved in the application. Several issues are presented by this deceptively simple concept. First, was the decision timely because a decision on the change of ownership issue was rendered within the two-year time frame? Second, was the two-year period properly extended because of the pendency of controlling litigation? If such extension was granted, was the final decision of valuation made before the expiration of the two-year period as extended? A. The Decision on Change of Ownership, and Taxpayer's Response Thereto, Did Not Discharge the AAB's Duty to Decide Timely All Issues County's initial argument is that the decision on "change of ownership," which was clearly made within the two-year period, was timely on the application because taxpayer "abandoned" pursuit of the valuation question.[7] County's argument rests on the fact that, following the AAB's ruling on the "change of ownership" issue, taxpayer did not wait for a determination on 162 the remaining bifurcated issue, but pursued a refund by its February 9, 1990 lawsuit on the ground there was no change of ownership. County asserts that because a taxpayer must exhaust his administrative remedies as a condition to a lawsuit seeking relief from an erroneous assessment (Security-First Nat. Bk. v. County of LA. (1950) 35 Cal.2d 319, 320 [217 P.2d 946]), the lawsuit here was as a matter of law an "abandonment" of the right to further pursue the valuation issue. County cites no authority for this contention. Although the 1990 refund lawsuit may have been a premature attempt to obtain piecemeal review of the administrative proceeding, it was not an abandonment of the right to pursue administrative remedies. (4) Dismissal is the remedy for a lawsuit filed before administrative remedies are exhausted (Park 'N Fly of San Francisco, Inc. v. City of South San Francisco (1987) 188 Cal. App.3d 1201, 1207-1208 [234 Cal. Rptr. 23]), not abandonment of the remaining administrative proceedings. (3b) Further, the potential of partial appeals is suggested by the provision in section 5141 that an action appealing a denial of a refund must be commenced within six months "after the date [the AAB] rejects a claim for refund in whole or in part." B. The Applicable Period Expired Before the Final Decision Was Entered The trial court concluded the two-year period was extended by the amount of time the 1988 writ proceedings were pending. The trial court calculated that an additional 143 days should be added to the 2-year period, apparently comprising (1) the 83 days between the October 12, 1988 filing of the writ petition and the January 3, 1989 ruling thereon, plus (2) the 60 days during which an appeal could have been filed before the ruling became final. County contends: (1) the 1988 writ litigation was properly added to the 2 years, but the appeal time should have been 180 days rather than 60; and (2) the 1990 refund lawsuit should also have been "tacked" onto the 2 years. Taxpayer counters: (1) no time should be added based on the 1988 writ litigation; (2) if time were to be added, it would be proper to limit it to 83 plus 60 days; and (3) no time should be added for the 1990 refund lawsuit. Extension of the two-year period could conceivably come about as the result of various factors occurring during the period. The AAB certainly could not be expected to act during the pendency of a court-issued stay, as occurred in this case. We apprehend, however, that such impediment to action would not tack the stayed period onto the two-year period (as contended by County) but would excuse County action only during the period of the stay and for a reasonable period thereafter. (See, e.g., Regus v. 163 Schartkoff (1957) 156 Cal. App.2d 382, 387 [319 P.2d 721] [reasonable time to act added to limitations after conduct causing inaction has ceased].) We need not dwell upon this possible aspect of an extension to the two-year period, however, because the time of the stay was too short to benefit the County. The court-ordered stay lasted only 83 days, expiring in mid-December 1989, well before the 2-year deadline. (5) The only potential for avoidance of the running of the two-year period in this case, therefore, is the utilization of rule 309 of the Real Property Tax Rules (Cal. Code Regs., tit. 18, § 309).[8] Rule 309 explains and defines the "where litigation is pending directly relating to the issues involved in the application" exception to the running of the two-year period, as contained in section 1604 the so-called "controlling litigation" exception. The rule provides that when a board determines to delay its decision because of the pendency of controlling litigation, the final decision must be made within the two years "excluding the period of time between the notice of pending litigation and the date that the litigation becomes final."[9] Thus, a rule 309 modification of the two-year period does in fact "tack" the period of pending litigation to the two-year period.[10] We therefore focus upon the key issue in this case, which is whether any rule 309 time tacking can be claimed. Taxpayer argues no time may be added unless the AAB gives written notice identifying the "controlling litigation" as required by rule 309. Since no notice was given here, taxpayer 164 claims no time may be added. Our review of the purpose of rule 309, as well as its specific terminology, forces the conclusion that taxpayer is correct, and that no tacking is permissible in this case since no notice was given. Looking first to the language of rule 309, we note that it is consistently mandatory. The taxpayer "shall not" be denied a timely hearing absent written notice; the notice "shall" inform the applicant of his right to protest and the basis thereon; and the notice "shall" identify the controlling litigation with specificity. The use of mandatory language persuades that the obligation to give notice, protecting as it does the citizen's interest in receiving notice and opportunity to protest, is mandatory rather than directory. (In re Lamonica H. (1990) 220 Cal. App.3d 634, 642-644 [270 Cal. Rptr. 60].) Moreover, written notice is required because it defines and measures the "tolling period." Controlling litigation does not provide the AAB an indefinite or open-ended extension to decide the application, but instead permits only a finite period to be "tacked" to the two-year period. Rule 309 specifies: "If a hearing is postponed because controlling litigation is pending, the hearing must be held and a final determination made within a period of two years after the application is filed, excluding the period of time between the notice of pending litigation and the date the litigation becomes final." (Italics added.) As is apparent from the highlighted language, the "tacked" period is measured not from the time the litigation was filed, or served, or answered, etc., but from the time of giving of the written notice. Without formal notice the taxpayer has no sure means of knowing how much additional time is to be added to the two-year period. It seems apparent to us that the provisions of rule 309 were designed to provide reasonable "due process" protection for the taxpayer. The taxpayer's statutory entitlement to a decision within two years is subject to an ambiguous exception under section 1604: that there will be tacked to the two-year period a time during which "controlling litigation" is pending. The taxpayer has no means, however, of knowing when and for how long this is occurring absent some formal notice from the AAB. Rule 309 provides the details of the notice requirement which accord due process to the taxpayer. If the AAB decides it is delaying action because of pending litigation, it must give the taxpayer formal notice. By specifying the particular means by which the AAB may invoke the statutory exception to the running of the two-year period, the rule strongly implies that absent its invocation no added time will be permitted. 165 V., VI.[] .... .... .... .... .... .... .... VII. Conclusion We conclude the two-year limitations period provided by section 1604 expired in September 1989, and hence the decision of the AAB was untimely. However, because there is some evidence from which a court could conclude the parties entered into a settlement agreement, the trial court must determine the issue of the existence and enforceability of the alleged settlement. VIII. Disposition The judgment is reversed and the case remanded for retrial. Each party shall bear its own costs on appeal. Nares, J., and Thompson, J.,[*] concurred. A petition for a rehearing was denied February 23, 1994, and the petition of defendant and appellant for review by the Supreme Court was denied April 28, 1994. Baxter, J., was of the opinion that the petition should be granted. NOTES [1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts V and VI. [2] All statutory references are to the Revenue and Taxation Code unless otherwise specified. [3] County asserted in oral argument that since taxpayer's reduction assessment applications were several in number, pertained to different parcels of property, and were filed over a period of time commencing with September 15, 1987, but terminating at a much later date, the two-year statute should not commence until the date of the last-filed application. We decline to consider this theory (though an interesting one) at the appellate level because the contention was not raised or mentioned in any fashion in the trial proceedings (not in written papers and not in County's motion for reconsideration or during oral argument). (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 311, pp. 321-322.) [4] Taxpayer cross-appeals, claiming the trial court erred in refusing its request for attorney fees. In that we reverse and remand, this issue is moot. [5] The Analysis of Senate Bill 1685, prepared for the Senate Committee on Local Government, indicates the Legislature was concerned that after two years "the taxpayer's opinion can become the permanent valuation. Senate Bill 1685 provides that a taxpayer's opinion ... remains the official value until the board comes to a final decision." A Legislative Bill Analysis dated February 4, 1986, and prepared by Mr. Gustafson of the State Board of Equalization, indicates "There remains some question as to what would happen if there were new construction on the property in any of the years during which the assessment freeze prevailed. Would the assessor be permitted to modify the assessment for new construction? One may also wonder if a change in ownership could be recognize [sic] under this restrictive language." In apparent response to these concerns, the State Board of Equalization prepared and forwarded to the author of Senate Bill No. 1685 some proposed amendments which, among other things, addressed the problem that the freeze "does not permit recognition of changes in value due to a change in ownership or new construction." (See State Bd. of Equalization, Memo re Sen. Bill No. 1685 Proposed Amends. from Mr. Ochsner to Mrs. Boatwright, dated Mar. 11, 1986.) To remedy that problem the memo proposed a change to section 1604, subdivision (d) by inserting after the words "than those" the phrase "required by a purchase, change of ownership, or new construction, or...." This is the precise language ultimately adopted by subdivision (d). [6] We note that the lapse of the two-year period does not forever "lock" the assessed value at the lower "taxpayer's opinion" of value, nor does the failure to act within two years deprive the AAB of the right to consider and rule on the application. To the contrary, as discussed in part III, ante, the "lower value" remains only until such time as the board renders its decision, because section 1604, subdivision (d) specifies that the "value shall remain on the roll until the [AAB] makes a final determination on the application. The value so determined by the [AAB], plus appropriate adjustments for the inflation factor, shall be entered on the assessment roll for the fiscal year in which the value is determined." Thus, our decision here only affects the tax years covered by the application and those years during which the board failed to act on taxpayer's application. Because the statute limits the "penalty" for a delayed AAB decision, the original judgment of the trial court below (i.e., vacating the AAB's decision and ordering the taxpayer's value enrolled) was erroneous as overbroad, since a late AAB decision is not void but is to be entered "for the fiscal year in which the value is determined." We thus caution that even if the trial court on remand decides against County on the alleged settlement, its judgment must be revised to fit the statutory requirements. [7] A related but distinct question might arise where the sole issue in dispute is whether a change of ownership had occurred, without any companion challenge to valuation. In a case in which the taxpayer challenges only whether the event permitting revaluation has occurred, and not the amount assessed assuming revaluation was proper, the sole decision to be made within the two-year period is the determination of whether revaluation was proper. Here, however, taxpayer raised and litigated two issues in the bifurcated hearings: Was there a change of ownership (phase one), and, if so, what was the proper value of the properties? No final determination of taxpayer's application could be made, therefore, until both issues were resolved. [8] All rule references are to the Real Property Tax Rules unless otherwise specified. [9] The pertinent provisions of rule 309 provide that the decision must be made within two years (rule 309(b)), and that failure to render the decision within two years requires the taxpayer's opinion be enrolled except when, among other things, "controlling litigation" is pending (rule 309(c)(4)). Rule 309(d) then provides: "The applicant shall not be denied a timely hearing and determination ... by reason of ... [the controlling litigation exception] unless, within two years of the date of the application, the Board gives the applicant written notice of such denial. The notice shall indicate the basis for the denial and inform the applicant of his right to protest the denial at the time of the hearing on his application. When a hearing is postponed or not scheduled because controlling litigation is pending, the notice to the applicant shall identify the controlling litigation by the name of the case, the court number or docket number of the case, and the court in which the litigation is pending. If a hearing is postponed because controlling litigation is pending, the hearing must be held and a final determination made within a period of two years after the application is filed, excluding the period of time between the notice of pending litigation and the date the litigation becomes final." [10] We assume that in the ordinary case a rule 309 "pending litigation" notice would pertain to some unrelated pending litigation in a trial or appellate court involving the same issue raised by the taxpayer's reassessment application. The rule could surely, however, also be invoked where judicial proceedings arising out of the very reassessment application subject to the two-year period made continuance of administrative proceedings inappropriate, as presumably could have been argued in this case had the rule 309 notice been given. [] See footnote 1, ante, page 152. [**] Retired Associate Justice of the Court of Appeal, Second District, sitting under assignment by the Chairperson of the Judicial Council.	{ "pile_set_name": "FreeLaw" }
916 F.2d 788 59 USLW 2249, 20 Bankr.Ct.Dec. 1844,63 Ed. Law Rep. 450 UNITED STATES of America, Plaintiff,v.Arthur GRUNDHOEFER, Leonard Hausman, et al., Defendants,Richard E. O'Connell, as Trustee in Bankruptcy for HausmanComputer Associates, Inc., an Intervening Party,Plaintiff.Richard E. O'CONNELL, Claimant-Appellant,v.BROOKLYN LEGAL SERVICES CORPORATION, Appellee. Nos. 742, 743, Dockets 89-1435, 89-1472. United States Court of Appeals,Second Circuit. Argued Feb. 14, 1990.Decided Oct. 3, 1990. Michael S. Devorkin, New York City (Doar Devorkin & Rieck, New York City, of counsel), for claimant appellant Richard E. O'Connell as trustee in bankruptcy for Hausman Computer Associates, Inc., debtor. Elizabeth M. Imholz, Brooklyn, N.Y. (John C. Gray, Jr., Brooklyn Legal Services Corp. B, Brooklyn, N.Y.; Scott Thompson, Stewart Klein, Davis Polk & Wardwell, New York City, of counsel), for appellee, Brooklyn Legal Services Corp. B. Before CARDAMONE, WINTER and ALTIMARI, Circuit Judges. CARDAMONE, Circuit Judge: 1 This appeal brings before us restitution orders that direct the principals of Hausman Computer Associates, Inc. (Hausman School or the School) to pay specified amounts into a fund for the benefit of the School's former students. The restitution orders were made part of the sentences imposed on the School's two founders. They and other school employees were convicted of defrauding the government and students, many of whom had paid over to the School their guaranteed student loan checks and were relying on the School to provide the training necessary to find employment to repay their loans. The School's abrupt closing and bankruptcy in 1987 left these unsuspecting students without recourse. Defaulting on a student loan has, of course, serious and negative consequences to a student's credit rating and future loan possibilities. 2 Recognizing these detriments, the New York State Education Department set up its own fund to reimburse students for tuition payments made to unscrupulous trade schools--assisting many students in repaying student loans incurred to pay their tuition bills. See N.Y. Times, July 10, 1990, at B1, col. 5, B4, cols. 3 & 4. In this case, not only were the government and students defrauded, but a number of other creditors filing claims in the corporation's bankruptcy proceeding also lost money. Appellant, Richard E. O'Connell, trustee in bankruptcy for the Hausman School, as debtor, intervened and unsuccessfully challenged the restitution orders in the district court sentencing proceedings. 3 The trustee appeals from that part of the final judgment and order of restitution entered August 11, 1989 in the United States District Court for the Southern District of New York (Sweet, J.), directing Arthur J. Grundhoefer to make restitution--in an amount agreed upon by the government and the defendant--to the student victims of the conspiracy. More particularly, the intervening appellant appeals from the denial of restitution to him as trustee for the debtor and the award of restitution to Brooklyn Legal Services, in trust for the student victims. The trustee also appeals from a similar order of restitution entered on September 15, 1989 in the Southern District (Leval, J.) that directed defendant Leonard Hausman to make restitution in the sum of over $1 million to Brooklyn Legal Services acting on behalf of the student claimants of the same Hausman School corporation. FACTS 4 This case stems from the criminal conspiracy of defendants Grundhoefer and Hausman, who founded a computer training school incorporated under the name Hausman Computer Associates, Inc. in 1980 and during its existence were its sole shareholders, officers, and directors. The Hausman School sought students who were eligible for federal financial assistance under 20 U.S.C. Sec. 1070 et seq. (1988), in the form of Basic Educational Opportunity Grants, commonly known as "Pell Grants," and guaranteed student loans. Because the School's application to the New York State Education Department certified that all its students had previously acquired a high school diploma or its equivalent, the School's students who had not graduated from high school were ineligible for federal assistance. In 1983 Grundhoefer and Hausman learned that some of the School's students were not high school graduates. In order to maintain the steady stream of federal money to which they had become accustomed, Grundhoefer and Hausman together with two recruiters they employed--Maria Faughaner and Rita Toro--conspired to make fictitious high school diplomas or equivalency diplomas and records for those students who had not graduated from high school. 5 From 1984 through 1987 the Hausman School received $25 million in federal grant money and guaranteed student loans, and from these substantial funds it paid Hausman and Grundhoefer during the two and a half years from 1985 through mid-1987 total salaries of $1,500,000 and $1,462,000 respectively. After the Federal Bureau of Investigation raided the School's premises in September 1987 and uncovered the falsified diploma scheme, it was closed. Subsequently, Hausman Computer Associates, Inc. filed for bankruptcy under Chapter 7 of the Bankruptcy Code in the Bankruptcy Court for the Southern District of New York (Buschman, B.J.). When appellant O'Connell was appointed trustee his task was to ascertain and recover the School's assets and provide for their proper distribution among its creditors. A. Criminal Proceedings 6 Following the government's criminal investigation of the School's activities in 1987 and Hausman's subsequent arrest, he pled guilty on February 24, 1989 to one count of conspiracy under 18 U.S.C. Sec. 371 (1988), for conspiring to make false claims to the Department of Education and to obtain federal monies by fraud. He also pled guilty to one count of a substantive violation of 18 U.S.C. Sec. 666 (1988)--obtaining federal grants by fraud. On May 31, 1989 Grundhoefer pled guilty to the first two counts of a 31-count indictment filed against him and Rita Toro, also under Secs. 371 and 666. Toro went to trial and was convicted of participating in the conspiracy and of 29 substantive counts under 18 U.S.C. Secs. 287 and 2 for falsifying high school diplomas. Her conviction was affirmed by this Court in an unpublished opinion dated June 11, 1990. Maria Faughaner, the other Hausman School defendant, pled guilty to one count of conspiracy and one count of making false claims for federal grants. B. Restitution 7 Brooklyn Legal Services Corporation B and Bronx Legal Services (collectively Legal Services) jointly wrote Judge Sweet and Judge Leval in 1989 regarding the forthcoming sentencing of Faughaner and Hausman. Together they represented defrauded students of the Hausman School. Legal Services "urge[d the court] to require restitution and direct that the United States Department of Education set aside in a separate account for the benefit of former students all monies collected in connection with Hausman Computer School defendants." The letter suggested that such an arrangement would benefit those students enrolled at the school at the time of its closing who would be forced to repay their student loans and would also benefit the government. 8 On July 18 when Faughaner appeared before Judge Sweet for sentencing, Legal Services spoke in favor of an order requiring the $250,000 that Faughaner had agreed to pay in restitution be placed in a separate fund for the benefit of the student victims. The Assistant United States Attorney (AUSA) consented to this proposal, and Judge Sweet expressed his receptiveness to it as well, though he ultimately declined to sentence Faughaner until after consulting with Judge Leval who was shortly to sentence co-defendant Hausman. 9 Legal Services followed their appearance with a July 20th letter sent to both Judge Sweet and Judge Leval providing a more detailed explanation of their proposal. The letter stated that "two groups of student victims already have been identified: (1) those students who were enrolled in the school at the time of the closing and who had student loan liability; and (2) students to whom or on whose behalf the school owed but never paid student loan refunds." Legal Services attached a list--which it had obtained from the New York State Education Department--of the names and social security numbers of the students enrolled at the School at the time of its closing and the students to whom the School owed student loan refunds. 10 In a July 28, 1989 letter directed to Judges Sweet and Leval the trustee's attorney asked to be permitted to submit its case for a restitution order in favor of the debtor and that the letter be considered a request to intervene for that purpose. On August 2 Grundhoefer appeared for sentencing before Judge Sweet. The government, Legal Services and the trustee each advocated their respective positions on the proposed restitution order. The AUSA argued in favor of an order requiring that the $740,000 Grundhoefer agreed to pay in restitution be given to the student victims represented by Legal Services and not to the "bankruptcy trustee's pot to be used for, presumably, the computer school's electric bills [and] water bills." The trustee advocated an order requiring restitution to be made in favor of the unsecured creditors--which he asserted were equally victims of the Hausman conspiracy--through a distribution supervised by the bankruptcy court. Legal Services reiterated its position in favor of restitution to the student victims, whose claims under the bankruptcy code it asserted were time-barred. 11 Judge Sweet entered a judgment that same day sentencing Grundhoefer to a prison term of a year and a day and directing "[c]ounsel for the Government and [Legal Services] to submit to the Court a proposed order providing a plan for disbursing the amount paid in restitution to the student victims of the conspiracy." At their respective sentencing hearings, Judge Sweet ordered that the restitution paid by co-defendants Faughaner and Toro be added to the restitution fund established as part of Grundhoefer's sentence. 12 On September 11 at Hausman's sentencing before Judge Leval Legal Services asked the court to enter an order similar to that entered by Judge Sweet. Judge Leval agreed. He sentenced Hausman to 14 months imprisonment and directed that restitution be made pursuant to a plan submitted by the government on consideration of the submissions of Brooklyn Legal Services as well as other student claimants with bona fide claims for restitution. DISCUSSION 13 It is from the restitution portion of the sentencing judgments of August 11 and September 15, 1989 that the trustee appeals. He urges that we reverse those portions of the judgments that directed restitution be made by defendants Grundhoefer and Hausman to former students of the Hausman School because the students were not "victims" entitled to restitution under the Victim and Witness Protection Act, 18 U.S.C. Secs. 3663, 3664 (1988) (Act). In the alternative, appellant argues that even were the former students victims under the Act, restitution should not have been ordered to the exclusion of the unsecured creditors of the Hausman School who also suffered economic loss as a result of the crimes of Grundhoefer and Hausman. Appellant also challenges the procedure utilized in entering the orders under the Act and Fed.R.Crim.P. 32. I Standing A. Constitutional Requirements 14 Whether a party has standing in the federal courts is always considered within the framework of Article III, Section 2, cl. 1, that extends federal judicial power to all "cases" and "controversies," and which first asks whether the challenged action has caused a plaintiff injury in fact. See Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151-52, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). Plaintiff must also show that the injury may fairly be traced to the challenged action of defendant, and that a favorable decision is likely to redress it, see Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976); Linda R.S. v. Richard D., 410 U.S. 614, 618, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). To establish standing a plaintiff must clearly set forth facts to satisfy Article III's requirements. 15 Standing it is admitted does not always lend itself to consistently logical analysis. But injury in fact stands on this subject like a deeply driven channel marker for all to see while the swirl and eddy of inconsistent currents round-about it. It is that criterion that the appellant trustee has failed to satisfy. The direct, distinct and palpable injury in a criminal sentencing proceeding plainly falls only on the defendant who is being sentenced. It is the defendant and he alone that suffers the direct consequences of a criminal conviction and sentence. Collateral individuals to the proceeding--like the present appellant bankruptcy trustee--have not suffered an Article III direct injury sufficient to invoke a federal court's jurisdiction to rule on their claim. 16 For this reason a private citizen generally lacks standing "to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Linda R.S., 410 U.S. at 619, 93 S.Ct. at 1149; L. Tribe, American Constitutional Law Sec. 3-16, at 124 (2d ed. 1988) ("[T]he interest in the just administration of the laws, including the interest in nondiscriminatory criminal enforcement, is presumptively deemed nonjusticiable even if invoked by persons with something beyond a generalized bystander's concern[.]"); cf. Whitmore v. Arkansas, --- U.S. ----, 110 S.Ct. 1717, 1724, 109 L.Ed.2d 135 (1990) (denying private citizen standing to bring challenge to another's death sentence under the Eighth Amendment). Hence, unless the trustee can establish that Congress gave him a right to restitution under the Act, see Linda R.S., 410 U.S. at 617 & n. 3, 93 S.Ct. at 1148 & n. 3, the trustee has not shown injury in fact and cannot challenge a restitution order imposed as part of a defendant's sentence. B. Prudential Limitations 17 To establish standing under a statute, a plaintiff must meet judge-made prudential limitations. These prudential principles attempt to limit federal courts from becoming enmeshed in cases that do not vindicate individual rights protected by the statute. One prudential limitation is the requirement that the interest a plaintiff seeks to vindicate is "within the zone of interests" protected by the federal law invoked. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Association of Data Processing Serv. Orgs., 397 U.S. at 153, 90 S.Ct. at 828. Under the zone-of-interests test a litigant lacks "a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987). Although most often applied to legislation governing administrative agencies, the test also relates to legislation where analysis reveals that the litigant is the kind of party Congress sought to benefit under the statute. See L. Tribe, American Constitutional Law Sec. 3-20, at 144. We turn to an analysis of the statute. 18 The restitutionary provisions of the Victim and Witness Protection Act were passed to "permit[ ] the court ... to order payment of restitution independently of a sentence of probation." S.Rep. No. 97-532, 97th Cong., 2d Sess. 30, reprinted in 1982 U.S.Code Cong. & Admin.News 2515, 2536 (1982 Legislative History). In pertinent part, the statute indicates that "[t]he court, when sentencing a defendant convicted of [a Title 18 offense] may order ... that the defendant make restitution to any victim of such offense." 18 U.S.C. Sec. 3663(a) (1988). Whether restitution should be ordered and the amount of restitution to be made is left completely within the discretion of the district court upon consideration of the losses of any victim, the financial condition of the defendant and any other relevant factor. See id. Sec. 3664(a). A restitution order may be enforced by the United States or a victim provided relief in the order. Id. Sec. 3663(h). 19 No private remedy for victims denied restitution is stated in the Act's language. When a private right of action is not explicitly spelled out in a statute on its face we must gauge "Congress' perception of the law that it was shaping or reshaping." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378, 102 S.Ct. 1825, 1839, 72 L.Ed.2d 182 (1982). The legislative history that tracks the Act's enactment in 1982, and its subsequent four amendments, fails to reveal any such purpose on Congress' part. See, e.g., H.Rep. No. 100-390, 100th Cong., 1st Sess. 11, reprinted in, 1987 U.S.Code Cong & Admin.News 2137, 2147; H.Rep. No. 98-1030, 98th Cong., 2d Sess. 86, reprinted in, 1984 U.S.Code Cong. & Admin.News 3182, 3269; 1982 Legislative History, 1982 U.S.Code Cong. & Admin. News at 2536-39. 20 Although no court has had occasion previously to rule on this specific issue, other decisions support our conclusion that appellant lacks a right to restitution under the Act. In holding that a restitution order made pursuant to Connecticut State criminal law was not dischargeable in Chapter 7 bankruptcy proceedings, the Supreme Court noted that "[a]lthough restitution does resemble a judgment 'for the benefit of' the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution." Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 362, 93 L.Ed.2d 216 (1986). Restitution orders are primarily a means of punishing and rehabilitating defendants; compensation to the victim is incidental. See id. at 53, 107 S.Ct. at 362-63. Further, in United States v. Brown, 744 F.2d 905, 909 (2d Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984), we upheld the restitutionary provisions of the Act under the Seventh Amendment and found that those statutory adjudications are not subject to the constitutional requirements of civil adjudication such as jury fact-finding. The victim as a non-party is accorded only a limited presence at a sentencing proceeding and has no right to appeal an inadequate remedy. See id. at 910. 21 In United States v. Cloud, 872 F.2d 846, 855 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 561, 107 L.Ed.2d 556 (1989), it was held that the Act permitted restitution to an insurance company--which suffered economic injury by compensating the direct victim, a bank--notwithstanding that the bank had settled all claims against the defendant and the insurance company had executed an agreement with the bank waiving its subrogation rights against the defendant. The court reasoned in Cloud that the insurance company did not waive its right to restitution under the Act when giving up its subrogation claims because neither the bank nor the insurance company "had an independently enforceable right to receive restitution under the [Act]." 872 F.2d at 854; accord United States v. Vetter, 895 F.2d 456, 459 (8th Cir.1990). But see United States v. Franklin, 792 F.2d 998, 1000 (11th Cir.1986) (expressing no view on "whether a victim has an implied right to intervene in a sentencing proceeding ... [or] whether an appeal may be taken to this court from an order denying such intervention or, if intervention is granted, from the district court's final disposition of the restitution issue"). 22 Finding no congressional aim in the Act either explicitly or implicitly to provide victims with an enforceable right to obtain restitution, we hold that appellant is outside its zone of interests and without standing to contest the restitution orders entered in the Southern District courts. II The Restitution Orders 23 Because our conclusion that appellant lacks standing to contest the restitution orders entered by the district courts against Grundhoefer and Hausman is one of first impression, prudence dictates that we touch briefly upon their propriety. The Act provides district judges with broad authority to order restitution as part of sentencing and restitution orders are reviewed under an abuse of discretion standard. United States v. Casamento, 887 F.2d 1141, 1177 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). 24 Section 3664 provides guidance for the district judge in entering restitution orders: 25 The court, in determining whether to order restitution[,] ... shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate. 26 Although the district court must "consider" these factors in entering an order of restitution, it need not make explicit findings with respect to each. See United States v. Golomb, 811 F.2d 787, 791 (2d Cir.1987); see also Hughey v. United States, --- U.S. ----, 110 S.Ct. 1979, 1984, 109 L.Ed.2d 408 (1990) ("the factors listed in [Sec. 3664(a) ], including the catchall factor, are intended to guide a court's discretion when it decides whether to award full or partial restitution under [Sec. 3663]"). A sentencing court is authorized to provide restitution to "any" victim of the offense, even those not named in the criminal indictment, see United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985), but is not bound to reimburse a victim's loss in full, United States v. Atkinson, 788 F.2d 900, 903 (2d Cir.1986). 27 The orders directing that restitution be made for the benefit of the student victims of the Hausman School were not an abuse of discretion. The former students of the Hausman School were victims of defendants' crimes under the Act notwithstanding that they were not named in the charges to which defendants pled guilty. See Durham, 755 F.2d at 512-13. Legal Services identified two groups of students who suffered economic injury from defendants' crimes: those enrolled at the school at the time when it closed and who had incurred student loan liability without receipt of a reciprocal benefit and those students owed student loan refunds from the school. Concededly, these economic losses were caused by defendants' fraudulent offenses and establish the students as victims under the Act. 28 Judge Sweet and Judge Leval both received letters from Legal Services and the trustee's attorney outlining their respective positions vis-a-vis the restitution order. Judge Sweet entertained oral argument from the AUSA, the counsel for the trustee and Legal Services on this issue. Both district court judges considered the losses suffered by the students, unsecured creditors and federal government, the amount of restitution to be made by defendants, and the fact that restitution to the students would indirectly benefit the federal government by saving it the expense of reimbursing institutions for future defaulted student loans and the ancillary administrative costs. 29 Although each of the district court judges thought that restitution funds in the hands of Legal Services might be paid to students directly, such would be wholly inappropriate. Restitution is available "only for the loss caused by the specific conduct that is the basis of the offense of conviction." Hughey v. United States, --- U.S. ----, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990). The specific offense here is conspiracy to defraud the United States and theft concerning programs receiving federal funds. Although the restitution award is only a fraction of the government's potential loss of $24 million, the award in the instant matter is nevertheless substantial, amounting to almost $1 million. Hence, the reduction of students' loan obligations must be accomplished by the restitution money going directly from the trust fund to the United States Department of Education. This will effectively reduce individual students' loan obligations--the name of the student and the amount of reduction to be provided by Legal Services--when the government receives the funds. 30 Consequently, the factors enumerated in Sec. 3664 as well as another relevant factor--relief to the students which would also benefit the federal government--were carefully considered. In these circumstances, we cannot say the restitution orders providing relief to the student victims to the exclusion of the unsecured creditors represented by the bankruptcy trustee was an abuse of discretion. 31 The trustee asserts that our reversal of restitution orders that required narcotics offenders to "pay restitution 'to a fund which shall be utilized for the medical treatment, rehabilitation and restitution of persons injured by addiction to narcotics in the 1980s' " in Casamento warrants reversal here. 887 F.2d at 1177. Casamento is distinguishable. In that case the orders provided restitution to individuals whose injuries had no nexus to defendants' crimes and who were not identifiable from the order. Id. at 1177-78. In contrast, here the orders benefit the students who suffered direct economic injury from defendants' crimes, most of whom have been identified by a list provided to Legal Services by the New York State Education Department. 32 We also reject the trustee's argument that reversal is mandated by United States v. Weichert, 836 F.2d 769, 772 (2d Cir.1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 802 (1989), where we held that the sentencing court must make an adjudication under Fed.R.Crim.P. 32 when the defendant disputes the amount of restitution ordered. In the instant matter the amount of restitution is not in dispute because both Grundhoefer and Hausman agreed to pay restitution in the amounts of $740,000 and $1,046,745, respectively, as part of their plea agreements with the government. Thus, Weichert and the adjudicatory requirements of Rule 32 are not violated. Cf. United States v. Berrios, 869 F.2d 25, 32 (2d Cir.1989) ("[T]he amount of loss to be compensated through restitution must either be conceded by the defendant or be adjudicated by the court."), amended on other grounds, Hughey, 110 S.Ct. 1979. CONCLUSION 33 The trustee is without standing to appeal the restitution orders entered as part of the sentences imposed on defendants Grundhoefer and Hausman because he is outside the zone of interests protected by the Act. Further, were we to decide the issue of the propriety of the orders providing relief to the student victims to the exclusion of the unsecured creditors represented by the trustee, we would affirm and hold that the orders were not an abuse of the district courts' discretion. But because appellant intervenor trustee is without standing to challenge defendants' sentences, his appeal is dismissed. 34 Appeal dismissed. WINTER, Circuit Judge, dissenting: 35 I respectfully dissent. 36 For the reasons stated in Judge Cardamone's opinion, I agree that a putative victim is not a party to the determination of whether a criminal sentence should include an order of restitution or to the determination of the amount of that restitution. I also agree that the touchstone of appellate standing is injury in fact. However, once an award of restitution has been finally determined, the defendant loses all legal interest in subsequent proceedings concerning that award. When the parties to such a subsequent proceeding are competing claimants seeking part of the restitution fund, such parties can, I believe, show injury in fact. 37 The instant case illustrates this principle. Both defendants agreed to restitution in a stipulated amount and thereafter had no interest in the distribution of the fund. Had the district judges then determined that the trustee should get the award, the students would have been left with a liability on the loans, and the government would have suffered losses if, as seems likely, the loans were uncollectible.1 Giving the award to the trustee seems to me to be a direct, palpable injury, and I see no reason why either the students or the government should not have been able to appeal such a decision. For similar reasons, I would allow the trustee to appeal. 38 However, I agree with my colleagues that the award should be used only to decrease the students' liability on the loans. 1 The government appears to have agreed before Judge Sweet to a cash distribution of some of the award to the students rather than its use to pay off the loans. On this appeal, it stood mute. Given that the taxpayers stand to lose some $24 million as a result of the defendants' crimes, the government's seeming indifference to the distribution of the $1 million in restitution is not to be applauded	{ "pile_set_name": "FreeLaw" }
30 F.3d 1487 One 1986 Mercedes Benz 300E, VIN WDBEA30D56A22575v.One Unknown Dea Agent, One Unknown Police Officer, FromSheriff's Department, Elizabeth, New Jersey NO. 93-5681 United States Court of Appeals,Third Circuit. June 08, 1994 Appeal From: D.N.J., Barry, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00003-CR ______________________________ DEMETRIUS RAMON JEFFERY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 402nd Judicial District Court Wood County, Texas Trial Court No. 17134-2002 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Demetrius Ramon Jeffery has appealed from his revocation of community supervision on his plea of true to the allegations contained in the motion to revoke. Appellate counsel filed a brief July 10, 2006, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw. Counsel sent Jeffery a copy of the brief, as well as copies of the clerk's and reporter's records, and advised Jeffery by letter he believes there are no arguable contentions of error. He also informed Jeffery of his right to review the record and file a pro se brief. Jeffery was advised by letter from this Court dated July 14, 2006, that his pro se brief was due on or before August 14, 2006. No brief has been filed, and Jeffery has not sought additional time in which to prepare a brief. Counsel has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978); see also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel concluded from his review of the record there is no arguable point of error to support the appeal. Counsel further states in the brief that the plea was voluntary, that all admonitions were properly given, and that Jeffery knowingly, intentionally, and voluntarily entered his plea of guilty. We have, likewise, reviewed the record and agree with counsel that there are no arguable points of error in this case. We affirm the judgment of the trial court. Josh R. Morriss, III Chief Justice Date Submitted: September 29, 2006 Date Decided: October 31, 2006 Do Not Publish damus review, Texas courts should not frustrate those purposes by a too-strict application of our own procedural devices. In re McAllen Med. Ctr., Inc., No. 05-0892, 2008 Tex. LEXIS 759, at *19 (Tex. Aug. 29, 2008) (orig. proceeding). Here, however, considering the other factors mentioned in McAllen Medical Center (the length the case has been pending, the detailed nature of the expert reports, and the time for discovery), we believe that the outcome in the instant case remains the same. Further, the trial court's denial of the motion to dismiss this case is not a clear abuse of discretion for the same reasons as discussed in In re Gladewater Healthcare Center, cause number 06-08-00141-CV. That is, the expert reports filed in this case are also sufficiently detailed such that the trial court was not required to dismiss the cause of action. That said, the petition for writ of mandamus in this cause is, likewise, denied. Jack Carter Justice Date Submitted: February 24, 2009 Date Decided: February 25, 2009	{ "pile_set_name": "FreeLaw" }
398 S.E.2d 40 (1990) 100 N.C. App. 603 Rankin WHITTINGTON, Daniel C. Hudgins, Dr. Takey Crist, Dr. Gwendolyn Boyd and Planned Parenthood of Greater Charlotte, Inc., Plaintiffs, v. The NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, David Flaherty, in his capacity as Secretary of the North Carolina Department of Human Resources, The North Carolina Social Services Commission, and C. Barry McCarty, in his capacity as Chairperson of the North Carolina Social Services Commission, Defendants. No. 8910SC405. Court of Appeals of North Carolina. November 20, 1990. 41 Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A. by Leslie J. Winner and Thomas M. Stern, Charlotte, for plaintiff-appellees. Maupin Taylor Ellis & Adams, P.A. by Charles B. Neely, Jr. and Robert A. Cohen, Raleigh, for defendant-appellants. ORR, Judge. We begin by noting that although this case arises in the context of controversial regulations pertaining to state funded abortions, this case is not about abortions. Rather, it is a case solely about administrative rule-making authority and whether the trial court erred in granting summary judgment in favor of plaintiffs in regard to that question. For the reasons below, we find that the trial court did not err. Under N.C.Gen.Stat. § 1A-1, Rule 56(c) (1983), summary judgment is appropriate only when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that any party is entitled to a judgment as a matter of law." Under the rule, a party is entitled to summary judgment if it can establish through the pleadings and affidavits, that there is no genuine issue as to any material fact, that only issues of law remain and that it is entitled to judgment as a matter of law. Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987); Johnson v. Holbrook, 77 N.C. App. 485, 335 S.E.2d 53 (1985). In its judgment after the hearing on the summary judgment motion, the trial court concluded that "there are no material facts in dispute that are necessary to determine these claims and [these rules] ... are each ultra vires and beyond the scope of the administrative authority of the Social Services Commission as a matter of law." The following are the rules in issue: Counseling required by Chapter 479, Section 93(5) of the 1985 Session Laws shall include the opportunity, but not the requirement, for all persons determined eligible for service to personally view fetal models showing the growth and development of the human embryo and fetus, said models to be obtained from regular 42 medical supply houses or medical schools. The director of any county department of social services receiving information from an applicant for State Abortion Funds alleging rape or incest as a basis for eligibility for assistance from the fund shall report such incident of rape or incest to the district attorney having jurisdiction in the area in which the incident occurred. Rule 10 N.C.A.C. 42W .0003(c) and .0005 (hereinafter referred to as "the fetal model rule" and "the reporting rule"). The reporting rule has been interpreted by the Social Services Division to require the director of each county department of social services to report only the fact that the rape or incest incident occurred and may exclude details of the incident and the victim's name. Before addressing the specific statutory provisions upon which the parties rely to support their opposing positions, we must first set out the following general rules regarding statutory construction. As early as 1915, our Supreme Court stated that when construing a statutory provision, the words in the statute are to be given their natural or ordinary meaning, unless the context of the provision indicates that they should be interpreted differently. Abernethy v. Commissioners, 169 N.C. 631, 86 S.E. 577 (1915). Moreover, when one statute speaks directly and in detail to a particular situation, that direct, detailed statute will be construed as controlling other general statutes regarding that particular situation, absent clear legislative intent to the contrary. Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966). It is only when the language of a statute is unclear or ambiguous that a court should attempt to interpret the language of a statute in accordance with what the court presumed the Legislature intended. State v. White, 58 N.C.App. 558, 294 S.E.2d 1 (1982). In enacting a law, we must presume that the Legislature acted with full knowledge of prior and existing law. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). Finally, statutes relating to the same subject should be construed in para materia, in such a way as to give effect, if possible, to all provisions without destroying the meaning of the statutes involved. See State ex rel. Utilities Comm. v. Thornburg, 84 N.C.App. 482, 353 S.E.2d 413, disc. review denied, 320 N.C. 517, 358 S.E.2d 533 (1987). We first note that the broad general rule-making authority in the executive branch of government for matters relating to human resources is found in Article 3 of Chapter 143B of the General Statutes known as the Executive Organization Act of 1973. Within this article, there is a specific legislative grant of rule-making authority to the Social Services Commission in N.C.Gen.Stat. § 143B-153 which states in pertinent part: There is hereby created the Social Services Commission of the Department of Human Resources with the power and duty to adopt rules and regulations to be followed in the conduct of the State's social service programs with the power and duty to adopt, amend, and rescind rules and regulations under and not inconsistent with the laws of the State necessary to carry out the provisions and purposes of this Article. Provided, however, the Department of Human Resources shall have the power and duty to adopt rules and regulations to be followed in the conduct of the State's medical assistance program. (1) The Social Services Commission is authorized and empowered to adopt such rules and regulations that may be necessary and desirable for the programs administered by the Department of Human Resources as provided in Chapter 108A of the General Statutes of North Carolina. N.C.Gen.Stat. § 143B-153 (1987). Pursuant to that authority, over the course of years, the Social Services Commission has made numerous rules and regulations covering the gamut of programs within its scope of services. Beginning in 1978, the General Assembly began providing limited appropriations for 43 state funded abortions. 1977 N.C.Sess. Laws 2d Sess. c. 1136. No specific legislation pertaining to this program was enacted other than the line item budget provisions enacted in the spending legislation passed by the General Assembly. In the 1985 Session Laws, Chapter 479, Section 93, the General Assembly for the first time enacted specific legislation dealing with the operation of the State Abortion Fund and the legislative policies applying to it. Section 93 states in pertinent part: LIMITATIONS ON STATE ABORTION FUND Sec. 93. (1) It shall be the policy of the State of North Carolina that the State Abortion Fund shall not be available for abortion on demand but shall be limited in accordance with this section. . . . . . No rules adopted pursuant to this section may require a woman to report rape or incest within any specified time. (4) Responsibilities of the County Department of Social Services. Services provided under this section shall be administered uniformly in every political subdivision of the State. Applications for service shall be made to county departments of social services. Eligibility for the services under this section shall be determined by the county department of social services under the provisions of subdivision (3) of this section. The county department of social services shall arrange for the delivery of these services with appropriate medical providers. (5) Counseling and Referral Services. The county department of social services shall provide counseling to all persons determined eligible for service under this section. Counseling shall include discussion of pregnancy options, including adopting, and family planning information. . . . . . The county department of social services shall provide to all persons determined eligible under this provision family planning counseling, and referral for family planning consultation and supplies, or voluntary sterilization. In cases where the applicant chooses to carry the pregnancy to term, the county department of social services shall refer the individual for all appropriate services, including licensed adoption services, maternal health care services and financial assistance. (6) Reimbursement to Providers. Services shall be reimbursed at no less than one hundred fifty dollars ($150.00) for outpatient services and not more than five hundred dollars ($500.00) for inpatient services. No services may be reimbursed where federal funds are available. Providers receiving funds under this section may not collect additional funds from individuals receiving services. Notwithstanding any provision of law, the setting of rates or fees for such services; the setting of eligibility standards or application requirements; the determination of the components of income that are considered in computing family monthly gross income; designation of services to be provided or the designation of providers shall be done only by enactment of law by the General Assembly. For purposes of administering this section, the following regulations which are codified in the North Carolina Administrative Code, to the extent that they are consistent with this section, are specifically authorized by the General Assembly: 10 NCAC 42W .0001-.0003, which were filed and effective as of January 1, 1983; 10 NCAC 35E .0103, Income Eligible Status, which was filed and effective as of July 1, 1983; and 10 NCAC 35 .0003, including the referenced Family Services Manual. 1985 N.C.Sess. Laws c. 479 s. 93. Finally, in 1985, the General Assembly passed a new Administrative Procedures Act codified in N.C.Gen.Stat. § 150B. This provision states in pertinent part: § 150B-1. Policy and scope. (a) The policy of the State is that the three powers of government, legislative, 44 executive, and judicial, are, and should remain, separate. The intent of this Chapter is to prevent the commingling of those powers in any administrative agency and to ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the administrative process. (b) The purpose of this Chapter is to establish as nearly as possible a uniform system of administrative rule making and adjudicatory procedures for State agencies. (c) This Chapter shall apply to every agency, as defined in G.S. 150B-2(1), except to the extent and in the particulars that any statute, including subsection (d) of this section, makes specific provisions to the contrary. N.C.Gen.Stat. § 150B-1 (1987). The Social Services Commission was not excluded from coverage under subsection (d). While the specific issue before this Court is the appropriateness of the trial court's grant of summary judgment for the defendants, the underlying basic issue is the applicability of these various legislative enactments to the rules in question. We turn now to the specific contentions of the parties. Defendants' Contentions Defendants primarily contend that the rules adopted by the Social Services Commission are authorized specifically under N.C.Gen.Stat. § 143B et seq., and that these provisions create express general authority in the Social Services Commission of the Department of Human Resources to adopt rules and regulations pertaining to the Fund. Defendants further argue that Stam v. State, 47 N.C.App. 209, 267 S.E.2d 335 (1980), aff'd in part and rev'd in part, 302 N.C. 357, 275 S.E.2d 439 (1981), supports their authority to regulate the Fund through the adoption of rules. In addition, defendants contend that they have the implied authority to make such rules because administrative authority should be broadly construed. Defendants rely on the broad grant of authority of N.C.Gen.Stat. § 143B-137 and the specific grant of § 143B-153 wherein the Social Services Commission is created "with the power and duty to adopt rules and regulations to be followed in the conduct of the State's social service programs with the power and duty to adopt, amend, and rescind rules and regulations under and not inconsistent with the laws of the State...." Defendants further rely on Stam for the proposition that pursuant to Chapter 143B, the Commission has rule-making authority as it pertains to the State Abortion Fund. To this point at least, defendants' contentions are correct and the Social Services Commission is authorized by virtue of Chapter 143B, standing alone, and specifically authorized as to the State Abortion Fund by Stam to promulgate rules that are "necessary and desirable." Plaintiffs' Contentions The primary contention advocated by the plaintiffs is that the enactment of N.C.Gen. Stat. § 150B-9 limited the rule-making authority of North Carolina administrative agencies such as the Social Services Commission. This statute, as noted previously, was part of the revised Administrative Procedure Act of 1985. Section 150B-9 (effective 12 July 1985), states: (a) It is the intent of this Article to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative rules.... [T]he provisions of this Article are applicable to the exercise of any rule-making authority conferred by any statute, but nothing in this Article repeals or diminishes additional requirements imposed by law or any summary power granted by law to the State or any State agency. No rule hereafter adopted is valid unless adopted in substantial compliance with this Article. (b) Each agency shall adopt, amend, suspend or repeal its rules in accordance with the procedures specified in this Article and pursuant to authority delegated by law and in full compliance with its 45 duties and obligations. No agency may adopt any rule that implements or interprets any statute or other legislative enactment unless the power, duty, or authority to carry out the provisions of the statute or enactment is specifically conferred on the agency in the enactment,.... N.C.Gen.Stat. § 150B-9 (1987) (emphasis added). Plaintiffs argue that general provisions of §§ 143B-153 and 108A-71 must yield to the specific provisions of § 150B-9 and Section 93. Furthermore, plaintiffs argue that Stam is inapplicable to the case at bar because it does not support the proposition that the Social Services Commission currently has authority to enact rules concerning the State Abortion Fund. We must now decide whether any of the above statutes or provisions grant to the Social Services Commission the specific or implied authority to adopt the fetal model and reporting rule pursuant to the Fund. We hold that they do not. a. Specific Authority Since the rules in question were adopted by the Commission subsequent to the enactment of N.C.Gen.Stat. § 150B-9, they are subject to the specific requirements. The first such requirement under § 150B-9(b) is that they be adopted in accordance with procedures specified in the article. On this count, the Commission failed to comply. Secondly, the Commission is prohibited from adopting any rule implementing or interpreting any statute or other legislative enactment unless specifically authorized to do so in the enactment. We now turn to Section 93 wherein the Legislature specifically enacted certain limitations on the State Abortion Fund. There is nothing in Section 93 which specifically confers upon the Social Services Commission or any other designated entity rule-making authority; however, the Legislature did specifically authorize for purposes of administering the section certain regulations previously codified. The language tracks the requirements of Chapter 150B. Although there are references to certain limitations on "Rules adopted pursuant to this section ...," we cannot conclude that Section 93 references a specific grant of rule-making authority to any particular entity. In fact, Section 93 specifically reserves the right to make such rules to the General Assembly. Notwithstanding any provision of law,... designation of services to be provided or the designation of providers shall be done only by enactment of law by the General Assembly. For purposes of administering this section, the following regulations which are codified in the North Carolina Administrative Code, to the extent that they are consistent with this section, are specifically authorized by the General Assembly: 10 NCAC 42W .0001-.0003, ... 10 NCAE 35 .0103,..., and 10 NCAC 35 .0003, which were filed and effective as of January 1, 1983;.... 1985 N.C.Sess. Laws c. 479, s. 93 (emphasis added). In summary, we conclude that the Commission has and continues to have general rule-making authority under its grant in N.C.Gen.Stat. § 143B-153 and by the provision of N.C.Gen.Stat. § 108A-71 which authorizes the Department of Human Resources to accept all "State appropriations" for programs of social services. That grant became limited, however, by Chapter 150B upon its enactment, thereby requiring the Commission to comply with certain procedural requirements in adopting rules if specifically authorized by legislative enactment to adopt rules. We also note that any rules made pursuant to Chapter 143B must be "[consistent] with the laws of the state." N.C.Gen.Stat. § 143B-153. Since the State Abortion Fund prior to the enactment of Section 93 was merely a "state appropriation," the Department of Human Resources, through its Social Services Commission, could and did enact rules and regulations pertaining to the program. However, by the passage of Section 93, which specifically limits by legislative enactment, 46 how the Fund is to be administered, the Department of Human Resources and the Commission's rule-making authority must comply with the requirements of Chapter 150B. We make no ruling on whether the rules in question are, in fact, "necessary and desirable" under § 143B-153. Furthermore, for the purposes of this opinion, we do not need to make a determination of whether the Fund is a grant-in-aid under Chapter 108A. We also note that defendants are correct in their analysis of the Stam case to the extent that Stam interpreted § 143B-153(7) to grant rule-making authority to the Commission to adopt "rules and regulations consistent with the provisions of this Chapter," as well as the specific grants of power in subsections (1) through (6). 47 N.C.App. at 220, 267 S.E.2d at 343. However, Stam does not authorize the Social Services Commission to make such rules if they are inconsistent with other more specific statutes such as § 150B-9. Defendants argue in their reply brief that § 150B-9 should not apply to the rules in question because this statute became effective 12 days after Section 93. Therefore, the General Assembly had no reason to specifically confer the authority in the enactment of Section 93 to carry out the provisions of that section since § 150B-9 was not yet law. This argument is without merit for at least two reasons. First, Section 93 specifically reserves the right of designation of services under the Fund to the General Assembly. Had the Legislature desired to carve an exception under any of the subsections to permit the Social Services Commission to promulgate rules, it could have done so. The Legislature did this for certain other rules in its last sentence of Section 93 by allowing some that already had been promulgated and codified in the North Carolina Administrative Code. Had the Legislature intended to leave room for additional future rules, such as the rules in the present case, it could have done so. Second, although § 150B-9 was enacted after Section 93, the General Assembly has had additional opportunities to confer specific rule-making authority on the Social Services Commission in Section 93, and has failed to do so. The Legislature failed to grant such authority to the Social Services Commission in 1987, and twice in 1989. Moreover, the Social Services Commission promulgated the rules in question after § 150B-9 became effective. Therefore, § 150B-9 does not operate retroactively in the case sub judice. b. Implied Authority Defendants argue that the administrative authority of an agency is to be broadly construed, consistent with the modern trend to permit administrative agencies reasonable discretion to carry out their charter purposes. See Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547, reh'g denied, 301 N.C. 107, 273 S.E.2d 300 (1980). We find this proposition to be inapplicable to the case at bar. First, the General Statutes of the state must justify any authority which administrative agencies purport to exercise. Charlotte Liberty Mutual Insurance Co. v. Lanier, Comr. of Insurance, 16 N.C.App. 381, 384, 192 S.E.2d 57, 59 (1972). There is no such justification from the General Statutes in the case at bar. Second, in General Motors Corp. v. Kinlaw, 78 N.C.App. 521, 338 S.E.2d 114 (1985), this Court stated that administrative agencies have those powers expressly vested by statute, and "those [implied] powers reasonably necessary for the agency to function properly...." Id. at 530, 338 S.E.2d at 121. In our case, there is no such grant of authority from which we may infer any rule-making authority pursuant to the legislation authorizing the Fund. Finally, because Section 93 and N.C.Gen. Stat. § 150B-9 prohibit the Social Services Commission from promulgating rules such as the fetal model and reporting rule, there is no implicit authority for the Commission to make and enforce such rules in these or other statutes. We find that § 150B-9 and Section 93 speak directly to the rule-making authority of the Social Services Commission in the *47 case sub judice, and we must, under the laws of this State, construe those provisions as controlling. We find no clear legislative intent to the contrary. See Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966). Furthermore, we note that it is the Legislature's obligation to clarify its intent should it deem such clarification to be necessary. In summary, we hold that the trial court did not err in granting summary judgment under Rule 56 of the N.C. Rules of Civil Procedure for plaintiffs because, as a matter of law, defendants are not authorized by the laws of this State to promulgate rules such as the fetal model and reporting rules pursuant to the State Abortion Fund. Affirmed. EAGLES and COZORT, JJ., concur.	{ "pile_set_name": "FreeLaw" }
1+27-(V ELECTRONIC RECORD (¥ZBf¥ COA# 02-13-00018-CR OFFENSE: OTHER CRIMINAL Aleksandr Goukasian v. The State STYLE: of Texas COUNTY: Tarrant COA DISPOSITION: AFFIRM TRIAL COURT: Criminal District Court No. 2 DATE: 09/18/2014 Publish: NO TCCASE#: 1215851D IN THE COURT OF CRIMINAL APPEALS Aleksandr Goukasian v. The State of STYLE: Texas CCA#: J TT mO mWW Petition CCA Disposition: FOR DISCRETIONARY REVIEW IN CCA IS: DATE: JUDGE: DATE: /^^/^Yy^// SIGNED: PC: JUDGE: f.dA C/yuU^^ PUBLISH: DNP: MOTION FOR REHEARING IN CCA IS: JUDGE: ELECTRONIC RECORD	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-6179 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MICHAEL EDWARD JONES, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Charles H. Haden II, District Judge, sitting by designation. (CR-96-123, CA-02-302) Submitted: April 17, 2003 Decided: April 23, 2003 Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael Edward Jones, Appellant Pro Se. Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Michael Edward Jones seeks to appeal the district court’s orders dismissing his motion to correct, construed as having been filed under 28 U.S.C. § 2255 (2000), and the motion for reconsideration. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court’s final judgment or order, Fed. R. App. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5) or reopens the appeal period under Fed. R. App. P. 4(a)(6). This appeal period is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). The district court’s order denying the § 2255 motion was entered on the docket on July 24, 2002. The court’s order denying the motion for reconsideration was entered October 9, 2002. The notice of appeal was filed on December 18, 2002. Because Jones failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3	{ "pile_set_name": "FreeLaw" }
714 F.2d 213 Robert SIEGEL, on behalf of himself and all otherstockholders of Converters Transportation, Inc., Appellee,v.CONVERTERS TRANSPORTATION, INC., Elk Piece Dye Works, Inc.,Louis Sgrosso, Vincent Oltremare, Sr., and VincentOltremare, Jr., Appellants. No. 83-7195. United States Court of Appeals,Second Circuit. Argued June 16, 1983.Decided Aug. 2, 1983. Howard Graff, Bloch, Graff, Danzig, Jelline & Mandel, New York City (Elaine Menlow, Bloch, Graff, Danzig, Jelline & Mandel, New York City, of counsel), for appellee. Murray N. Jacobson, Jacobson & Jacobson, New City, N.Y., for appellants. Before FRIENDLY, OAKES and CARDAMONE, Circuit Judges. PER CURIAM: BACKGROUND 1 This case presents the question whether an individual shareholder of a contract carrier may recover on its behalf in a derivative action the difference between freight rates paid by a shipper and those set forth in the tariff filed by the carrier with the ICC pursuant to 49 U.S.C. § 318(a), amended by 49 U.S.C. § 10761(a) (Supp. V 1981). The United States District Court for the Southern District of New York, Charles E. Stewart, Judge, in two separate memorandum decisions, rejected the defendants' estoppel defense and granted summary judgment as to liability on the plaintiff's timely claims. We affirm. 2 The named plaintiff in this action, Robert Siegel, was a shareholder and President of Converters Transportation (Converters), a New York corporation operating as a contract carrier as defined in 49 U.S.C. § 303(a)(15), amended by 49 U.S.C. § 10102(5), (13) (Supp. V 1981). Converters was formed in 1969, apparently for the sole purpose of providing transportation services to the defendant Elk Piece Dye Works (Elk), a corporation that dyes and finishes "piece goods" for the textile industry. Although legally separate from Elk, one-half of Converters' stock was held by Vincent Oltremare, Jr. and Joseph Scancarello, who both represented the interests of Elk. The other one-half was held by plaintiff Siegel. Converters also agreed to pay defendants Vincent Oltremare, Sr. and Louis Sgrosso, both principals of Elk, $12,500 annually as "commissions" for obtaining Elk's trucking business. 3 The appellees argued that the payments were illegal rebates. The amended complaint sought both recovery of the commissions and compensation for payments for trucking services rendered Elk by Converters from May 30, 1975 to March 21, 1977. Elk argues that Converters should be estopped from recovering because, as Judge Stewart found, "[t]here is uncontroverted evidence that Siegel knew, ratified and participated in the alleged illegal payments." Converters argues that the "commissions" agreement was "attributable solely to Elk providing it with customers--a bounty for its lifeblood." In the alternative, Elk argues that recovery for at least some of the period set forth in Converters' amended complaint is barred by the statute of limitations. DISCUSSION A. Estoppel 4 Elk's estoppel argument--based on the equitable maxim that a party ought not to profit from his own wrongdoing--runs contrary to well settled case law establishing essentially strict liability for any difference between the rates paid by a shipper and the tariff filed by the carrier. In short, "[u]nder the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge." Louisville & Nashville R.R. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915). The Court in Louisville & Nashville recognized that "[t]his rule is undeniably strict and it obviously may work hardship in some cases" but concluded that strict liability "embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination." Id. Any number of recent cases from this and other circuits confirms the proposition that an estoppel defense is simply unavailable under the Act. See, e.g., Fry Trucking Co. v. Shenandoah Quarry, Inc., 628 F.2d 1360, 1361-63 (D.C.Cir.1980); Illinois Central Gulf R.R. v. Golden Triangle Wholesale Gas Co., 586 F.2d 588, 592 (5th Cir.1978); Nyad Motor Freight, Inc. v. W.T. Grant Co., 486 F.2d 1112, 1114 (2d Cir.1973) ("a common carrier may, despite its own complicity, recover any illegal differential between its filed rates and the actual charges made"); Bowser and Campbell v. Knox Glass, Inc., 390 F.2d 193, 194-97 (3d Cir.), cert. denied, 392 U.S. 907, 88 S.Ct. 2061, 20 L.Ed.2d 1365 (1968). 5 Bangor Punta Operations, Inc. v. Bangor & Aroostook R.R., 417 U.S. 703, 94 S.Ct. 2578, 41 L.Ed.2d 418 (1974), the case Elk relies upon most, does not call for a different result. In Bangor Punta the Court held that a corporation could not maintain an action for waste of corporate assets and mismanagement against the former owners of a corporation it had acquired at what was conceded to be a fair price. Elk argues that the decision "recognize[s] the principle that a stockholder may not maintain an action to recover for wrongful conduct if that stockholder acquiesced in, participated in, or ratified the wrongdoing complained of." We do not believe that Bangor Punta must--or should--be read so broadly. The Court's decision ultimately turned on its view that the plaintiff in Bangor Punta, having paid a fair price for its shares, suffered no injury as a result of any earlier mismanagement of the acquired corporation. 417 U.S. at 711, 94 S.Ct. at 2583. Thus Bangor Punta was not a case where recovery was denied under either an "unclean hands" or "in pari delicto" rationale. See Memorex Corp. v. International Business Machines Corp., 555 F.2d 1379 (9th Cir.1977). B. Statute of limitations 6 Siegel originally filed suit on his own behalf on June 10, 1977. On September 15, 1978, Judge Stewart held that, under New York law, Siegel was not entitled to maintain the action and dismissed without prejudice. Siegel then filed a verified amended complaint as a derivative suit on October 30, 1978. Although Siegel's first complaint sought compensation only for shipments made between April 3, 1976 and March 21, 1977, the time period encompassed by the amended complaint ran from May 30, 1975 to March 21, 1977. Although it is clear that, under the applicable three year statute of limitations, 49 U.S.C. § 304a, amended by 49 U.S.C. § 11706 (Supp. V 1981), a claim relative to shipments dating back to May 30, 1975 would have been timely when the first complaint was filed on June 10, 1977, Elk contends that the amended complaint's alteration of the period for which damages were sought cannot "relate back" to the filing of the original complaint under Fed.R.Civ.P. 15(c). 7 The text of Rule 15 makes explicit Congress's intent that leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The purpose of Rule 15 "is to provide maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities." 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1471, at 359 (1971). To this end Fed.R.Civ.P. 15(c) provides in part that: 8 Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. 9 We held over forty years ago that Rule 15(c) was to be liberally construed, particularly where an amendment does not "allege a new cause of action but merely ... make[s] defective allegations more definite and precise." Glint Factors, Inc. v. Schnapp, 126 F.2d 207, 209 (2d Cir.1942). See also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). 10 In this case the initial complaint made it clear that Converters sought recovery for all unpaid shipping services it had rendered Elks and all the "commissions" paid to the various defendants. The "conduct" or "transaction" in question was therefore the agreement to violate the tariff filed with the ICC by means of "free" shipments and "commissions." Cf. Tiller v. Atlantic Coast Line R.R., 323 U.S. 574, 580-81, 65 S.Ct. 421, 424, 89 L.Ed. 465 (1945) ("The cause of action now, as it was in the beginning, is the same .... There is no reason to apply a statute of limitations when, as here, the respondent has had notice from the beginning that petitioner was trying to enforce a claim against it because of the events [alleged in the original complaint]"); see also Tabacalera Cubana, S.A. v. Faber, Coe & Gregg, Inc., 379 F.Supp. 772, 775-76 (S.D.N.Y.1974); Brennan v. Tar Heel Home Supply, Inc., 62 F.R.D. 190 (D.N.C.1974). To allow Elk to interpose a statute of limitations defense on the theory that each shipment represented a separate "occurrence" for the purpose of Rule 15(c) would ignore the fact that the plaintiff was not required under the Rules to plead each shipment with specificity, and did not do so. Such an approach would also defeat the rationale of Rule 15 which is, quite simply, "to ameliorate the effect of the statute of limitations." 6 C. Wright & A. Miller, Federal Practice and Procedure § 1497, at 495 (1971) (footnote omitted). See also id. § 1496, at 482-83. Nor is there any possibility that Elk was prejudiced here. Any reliance on the statute of limitations as to shipments earlier than those made within the period specified in the original complaint would have been wholly unjustified because a "suit warns the defendant to collect and preserve ... evidence in reference to it. When a suit is filed in a federal court under the Rules, the defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be." Barthel v. Stamm, 145 F.2d 487, 491 (5th Cir.1944), cert. denied, 324 U.S. 878, 65 S.Ct. 1026, 89 L.Ed. 1430 (1945). The gist of both the original suit and the amended complaint was the unlawful agreement to pay lower freight charges and commissions, and its continuing performance, not a series of agreements as to unrelated shipments. 11 Judgment affirmed.	{ "pile_set_name": "FreeLaw" }
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425 F.2d 766 Application of Karl H. SANDMEYER, William A. Miller and Leroy M. Swanson. Patent Appeal No. 8282. United States Court of Customs and Patent Appeals. May 21, 1970. William H. Webb, Russell D. Orkin, Pittsburgh, Pa., for appellants; Spencer B. Michael, Washington, D. C., of counsel. Joseph Schimmel, Washington, D. C., for Commissioner of Patents; Fred W. Sherling, Washington, D. C., of counsel. Before RICH, Acting Chief Judge, ALMOND, BALDWIN and LANE, Judges, and FORD, Judge, United States Customs Court, sitting by designation. LANE, Judge. 1 This appeal is from the decision of the Patent Office Board of Appeals1 which affirmed the rejection of claims 1 through 6, all the claims in appellants' patent application serial No. 347,395, filed February 26, 1964, for "High Alpha-Alumina Fused Cast Refractories." We affirm the board's decision. 2 Claims 1 and 4 are illustrative of the claims on appeal. 3 1. A fused cast refractory article consisting essentially of alpha-alumina and containing a small amount up to 1½ percent of an alkali oxide, and less than 1 percent of silica, said article having a preselected, definite size and shape. 4 4. A fused cast refractory article consisting essentially of alpha-alumina and containing a small amount up to 1½ percent of lithium oxide, said article having a preselected, definite size and shape. 5 The other claims on appeal additionally recite a nonporous crystal structure, and density. 6 All the claims were rejected by the examiner as fully met by Comstock2 or Marshall.3 The board construed this rejection to be under 35 U.S.C. § 103 since the examiner's rejection stated that only mechanical skill would be required to form the molten alumina into any desired shape. The board in its decision added a new rejection under Rule 196(b), stating that claims 1, 2 and 3 were met by Comstock under 35 U.S.C. § 102. Upon subsequent consideration of arguments and affidavits filed by the applicant, the examiner withdrew this new 35 U.S.C. § 102 rejection. 7 The Comstock patent discloses a fused alumina containing 0.06% silica, 0.07% ferric oxide, 0.01% sodium oxide, with trace amounts of other materials. Comstock also teaches the formation of a hotpressed molded product of great density and low porosity. The Marshall patent discloses an abrasive material consisting of fused alumina, 0.1-0.5% of lithium oxide, and 1.23-1.50% of silica. 8 Appellants' claim 1 defines a fused cast refractory article of preselected size and shape and consisting essentially of alpha-alumina and containing up to 1½ percent of an alkali oxide and less than 1 percent of silica. The Comstock articles of granular alumina are described therein as electrically fused and Comstock mentions a hot high-pressure molding technique utilizing graphite molds to produce ingots. The claims on appeal do not specify any particular size or shape distinguishable from the ingots molded by Comstock. Marshall discloses alumina abrasive materials prepared by adding ingredients to an arc furnace wherein the ingredients are heated to the fusing point and rendered molten. After cooling, the Marshall refractory article is crushed to produce materials for surface grinding operations. Both Comstock and Marshall disclose refractory articles consisting essentially of alumina containing small percentages of an alkali oxide and silica. Consideration of the ingots produced by Comstock in hot high-pressure molding, or by Marshall in an arc furnace rendering the materials molten, supports the conclusion that it would have been obvious to form fused cast refractory articles of any desired size and shape from the disclosed ingredients. Claim 2 adds to claim 1 that the article has a dense nonporous crystal structure, and claim 3 recites that it has a compact crystal structure having a density of at least 3.5 (presumably grams per cubic centimeter). Marshall discloses that alpha alumina has a density of 3.99 grams per cubic centimeter. Claims 4, 5 and 6 limit the alkali oxide specifically to lithium oxide. The aluminous abrasives disclosed by Marshall are stated to contain from 0.1 to 0.5 percent added lithia (lithium oxide). 9 Appellants contend that there is a difference between "fused" and "fused cast" and that the Comstock product is not fused cast. Comstock discloses hot molding of mixtures including fused low-soda alumina at temperatures of at least 1650° C. to produce strong and dense molded pieces. We are not convinced that it would not have been obvious to one skilled in the art of forming refractory articles to make such articles in a preselected shape and size by casting, by molding or by pressure molding. We find nothing in the record to convince us that the board erred in affirming the rejection of claims 1, 2 and 3 as obvious over Comstock and unpatentable under 35 U.S.C. § 103. 10 Appellants assert finally that Comstock and Marshall contain no teaching of fused cast refractory articles usable as a lining for glass tanks and the like. The claims on appeal are directed only to a fused cast refractory article of a preselected, definite size and shape. Appellants' application discloses melting of the raw batch composition with an electric arc. Marshall teaches adding the mixtures to a large arc furnace in which the ingredients are rendered molten. The size and shape of the article are a matter of selection within the ability of one having ordinary skill in the art. The selection of size and shape for a desired use is not considered to be a problem in this particular case wherein appellants have disclosed no specific sizes and shapes. 11 We conclude that the board's determination that claims 1 through 6 are unpatentable under 35 U.S.C. § 103 over Comstock and Marshall is correct and must be affirmed. 12 There is pending before us a motion by appellants to remand this case to the primary examiner. The basis for the motion is the contention that the board applied for the first time a rejection under 35 U.S.C. § 103 and failed to denominate this a new ground of rejection. Appellants say they believed the examiner's rejections to be under § 102 only, and that they never had an opportunity to argue § 103 issues before the examiner and to submit evidence addressed to such issues. We find no merit in these contentions. First of all, appellants submitted, prior to final rejection, an amendment stating that "neither reference has such a teaching as to make obvious the production of articles corresponding to these claims." (Emphasis ours.) Second, in their petition to revive the instant application, which apparently had been held abandoned at one point in the proceedings below, appellants prayed for relief "to get a further review of this application either at the Board of Appeals level or before the Court of Customs and Patent Appeals," not to go back to the primary examiner. Finally, we find that all issues relevant to the disposition of this case have been fully developed before us. Accordingly, appellants' motion for remand is denied. 13 The decision of the board is affirmed, and appellants' motion to remand is denied. 14 Affirmed; motion denied. Notes: 1 Consisting of Magil and Behrens, Examiners-in-Chief, and Rebold, Acting Examiner-in-Chief, opinion by Rebold 2 U.S. Patent 2,618,567, issued November 18, 1952 3 U.S. Patent 3,141,747, issued July 21, 1964, filed August 24, 1961	{ "pile_set_name": "FreeLaw" }
85 F.3d 618w NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Valentine Chukwuemeka NNANI, Defendant-Appellant. No. 95-6108. United States Court of Appeals, Fourth Circuit. Submitted: December 19, 1995.Decided: May 9, 1996. NOTE: THE COURT HAS WITHDRAWN THIS OPINION	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS IN THE MATTER OF R. D., A JUVENILE § § § § § § No. 08-07-00100-CV Appeal from the 289th District Court of Bexar County, Texas (TC# 2006-JUV-03111) O P I N I O N This is an appeal from an adjudication of engaging in the delinquent conduct of aggravated robbery. Appellant raises three issues challenging the legal and factual sufficiency of the evidence supporting the jury's deadly weapon finding and the factual sufficiency of the evidence in rejecting his affirmative defense of duress. We affirm. R. D. was walking to the store when he met Richard Casarez. Casarez asked if R. D. knew where he could get some cocaine. He did not, but he knew where he could get some marijuana. R. D. agreed to go to Casarez's house where they smoked marijuana. Casarez's father came home and offered them beer, which they accepted. Casarez's father asked R. D. about his tattoos, and told him he was not supposed to have them. Casarez's father began to threaten R. D., and told him he had to do something to get into his gang since he already had the tattoos. Casarez's father told R. D. that if he did not do something for him, then he was going to hurt his family or R. D. R. D. was frightened by the threat to his family. Casarez had told R. D. that he had seen him around the neighborhood and knew where he lived. Casarez's father told R. D. that he had been to jail, and he was in the Mexican Mafia. R. D. and Casarez along with Casarez's trained pit bull left the house. Casarez told him if he did not do what his father told him that something bad was going to happen. Before they left, they also retrieved a pellet gun from the backyard. R. D. knew the gun was not loaded. Casarez told R. D. they were going to go up to someone and try to get money. Maria Gomez was walking back to her house when two boys told her to stop. At first, she did not realize they were talking to her, but then she turned around to see what they wanted. One of the boys asked her for money. She thought that they might set the dog on her if she did something. Ms. Gomez told them that she did not have any money. One of the boys told her that "he was not playing" to which she responded that she did not have anything on her because she did not have any pockets. Ms. Gomez turned around and starting walking away, and then the boy without the dog told her to stop, that he was not playing with her. When she turned around, she saw that he was pointing a gun at her. The boy continued to tell her that he wanted money from her. Ms. Gomez was scared, and thought he might shoot her. She turned around and started to walk away. The boy came behind her, and she felt the gun on the back of her neck. He, again, told her to stop and he was not playing. She turned around, grabbed the front of the gun, and pushed it away from her. The boy with the dog told her to take off her earrings, and she gave them to the boy with the gun. After giving them her earrings, she turned around, walked home, and called the police. The police arrived and asked her what happened and to describe the two boys. The officers took her to a location where they had two boys and asked if they were the ones who robbed her. It was the same two boys. Ms. Gomez identified R. D. as the boy with the gun at trial. Officer Peter Baltes, of the San Antonio Police Department, testified for the State as to whether the gun used was a deadly weapon. Officer Baltes was told by R. D. that the gun was in his waistband. The weapon appeared to be a black semi-automatic pistol. Officer Baltes realized it was a pellet gun when he went to place the gun in his trunk to secure it. Officer Baltes' experience with firearms included qualifying with various types of weapons system in the Marine Corp and firing different types of firearms as a deputy sheriff. Officer Baltes testified that he was educated on the law in the State of Texas and was familiar with the definition of a deadly weapon under those laws. It was Officer Baltes' opinion that the gun was a deadly weapon. If the gun was placed to close to the human body, it would be capable of causing serious bodily injury or death, and its intended use could cause the same. On cross-examination, Officer Baltes stated that without pellets the gun would not be capable of causing serious bodily injury or death unless used as a club. In an unloaded state, it was not capable of being a deadly weapon. Officer Baltes did not test the gun to see if it functioned, nor did he know if the CO2 cartridge had any gas in it. The jury found that Appellant had engaged in delinquent conduct of aggravated robbery. The jury sentenced him to commitment to the Texas Youth Commission with the possible transfer to the Institutional Division of the Texas Department of Criminal Justice for fifteen years. In Issue One, Appellant argues the trial court erred in denying his motion for directed verdict because the evidence was legally insufficient to support the finding that R. D. used or exhibited a deadly weapon. An appellate challenge to the trial court's denial of a motion for a directed verdict is considered to be a challenge to the legal sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App. 2003). In Issue Two, Appellant argues the trial court erred in denying the motion for new trial because the evidence was factually insufficient to support the finding that R. D. used or exhibited a deadly weapon. In reviewing the legal and factual sufficiency of the evidence to support a deadly weapon finding, an appellate court uses the same standards used to review the sufficiency of the evidence to support a conviction. Lee v. State, 51 S.W.3d 365, 371 (Tex.App.--Austin 2001, no pet.). We review adjudications of delinquency in juvenile cases by applying the same standards applicable to sufficiency of the evidence challenges in criminal cases. In re M.C.L., 110 S.W.3d 591, 594 (Tex.App.--Austin 2003, no pet.). In a legal sufficiency challenge, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). Evidence that is legally sufficient, can still be factually insufficient. Id. In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust, or the verdict is against the great weight and preponderance of the evidence. Rollerson, 227 S.W.3d at 724. Under both standards, the reviewing court must consider all of the evidence. Id. "The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these question 'albeit to a very limited degree.'" Rollerson, 227 S.W.3d at 724, quoting Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006). There is little actual difference between the two standards of review. Id. A person commits aggravated robbery if he commits robbery as defined in Section 29.02 of the Penal Code and uses or exhibits a deadly weapon. Tex.Pen.Code Ann. § 29.03(a)(2) (Vernon 2003). The jury charge defined a deadly weapon as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See Tex.Pen.Code Ann. § 1.07(17)(B)(Vernon Supp. 2008). R. D. testified that he knew the gun was not loaded when they got it from the backyard. After Ms. Gomez, tried walking away, R. D. told her he was "not playing" and was pointing the gun at her. He repeated his request for money. Ms. Gomez stated she did not have any, and tried to walk away again. She was scared, and thought he might shoot her. R. D. came up behind her and placed the gun to the back of her neck, and said he was not playing. Officer Baltes testified that it was a pellet gun that looked like a semi-automatic weapon. He gave his opinion that it was a deadly weapon, and was capable of causing serious bodily injury or death. Officer Baltes stated that in an unloaded state, it is not a deadly weapon unless used as a club, and he did not test the gun to see if it functioned. In Adame v. State, the Court of Criminal Appeals found that evidence showing the appellant displayed the BB gun, and the gun was capable of causing serious bodily injury if pointed and fired at someone was sufficient to support the jury's deadly weapon finding. Id., 69 S.W.3d 581, 582 (Tex.Crim.App. 2002). The Court held that whether the BB gun was loaded or unloaded is not significant in the analysis because the issue is whether the gun was capable of causing seriously bodily injury. Adame, 69 S.W.3d at 582, citing McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000)("an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury"). The court held that it is not necessary to place an additional evidentiary burden on the State to prove that a BB gun was loaded at the time of the commission of the offense, but rather the State only must show that the weapon used was capable of causing serious bodily injury or death in its use or intended use. Adame, 69 S.W.3d at 582. With testimony that a BB gun is capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding. Id. While R. D. testified that the gun was not loaded, the jury is the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The jury was free to disbelieve this self-serving statement. The fact that the gun was found without pellets is ambiguous evidence. Appellant could have unloaded the gun after walking away from the robbery. The fact that he pointed the gun at Ms. Gomez, placed it against the back of her neck, and stated that he "was not playing" allowed the jury to infer that the gun was loaded. See Delgado v. State, 986 S.W.2d 306, 308 (Tex.App.--Austin 1999, no pet.). Accordingly, the evidence is legally sufficient to support the finding that Appellant used or exhibited a deadly weapon, and the verdict is neither clearly wrong or manifestly unjust nor against the great weight and preponderance of the evidence. Issues One and Two are overruled. In Issue Three, Appellant argues the trial court erred in denying the motion for new trial because the evidence was factually insufficient to support the jury's rejection of R. D.'s affirmative defense of duress. As a transfer case, we must apply the precedent of the transferor court. Tex.R.App.P. 41.3. The Rules of Civil Procedure govern juvenile proceedings unless there is a conflict within the Texas Family Code. Tex.Fam.Code Ann. § 51.17(a)(Vernon 2008); In re M.P., 126 S.W.3d 228, 230 (Tex.App.--San Antonio 2003, no pet.). Rule 324 requires a motion for new trial as a prerequisite for challenging the factual sufficiency at trial. Tex.R.Civ.P. 324(b)(2). While R. D. did file a motion for new trial, it only challenged the sufficiency of the evidence of the deadly weapon finding. The motion did not challenge the jury's rejection of R. D.'s affirmative defense. As such, the issue was not preserved for review. See In re L.M.M., No. 04-04-00055-CV, 2004 WL 2289731 at *1 (Tex.App.--San Antonio Oct. 13, 2004, no pet.)(mem. op., not designated for publication). If the case had originated in the Eighth Judicial District, we would have reviewed the issue since this Court has held that filing a motion for new trial is not required to raise a factual sufficiency issue on appeal in a juvenile proceeding. See In re J.L.H., 58 S.W.3d 242, 246 (Tex.App.--El Paso 2001, no pet.). Appellant's Issue Three is overruled. Having overruled all of Appellant's issues, we affirm the adjudication of the trial court. March 12, 2009 DAVID WELLINGTON CHEW, Chief Justice Before Chew, C.J., McClure, and Carr, JJ. Carr, J. (Not Participating)	{ "pile_set_name": "FreeLaw" }
Filed 9/30/15 P. v. Renteria CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Appellant, A143345 v. FERNANDO DANIEL RENTERIA, (City & County of San Francisco Super. Ct. No. 222161) Defendant and Respondent. The trial court vacated a jury verdict and granted defendant Fernando Daniel Renteria’s motion for a new trial following an evidentiary hearing in which the court found that prejudicial juror misconduct occurred during deliberations. The trial concerned robberies unrelated to gang activity, yet a juror injected an opinion explicitly based on extraneous information obtained as a law enforcement officer that defendant is the member of a dangerous street gang. The district attorney appeals. We shall affirm the order. Summary of Evidence Presented at Trial Resolution of the issues raised on appeal does not require a detailed statement of the evidence. A short summary suffices. On the night of April 22, 2014, in little over an hour three separate robberies were committed in San Francisco within one and a half miles of each other. The three victims each testified they were walking alone on a city street when two men, one with a handgun, robbed them of their cell phones and wallets. Most of the gunman’s face was 1 obscured by a bandana, according to two victims, or a ski mask according to the third victim. The third victim electronically traced the location of his stolen phone and informed the police of the phone’s location. The police arrived at that location less than 20 minutes after the robbery and found a vehicle with a female driver and two male passengers, one of whom was defendant. The police detained the occupants and recovered from inside the vehicle the traced phone and other stolen items belonging to the victims. In a jacket on the vehicle’s back seat the police also found an air pellet gun resembling a firearm. One of the victims testified he recognized defendant as the gunman based on defendant’s eyes and another based on defendant’s ears and eyebrows. The third victim could not make an identification. Defendant denied committing the robberies. The defense claimed the robberies were committed by the other male passenger in the vehicle, Phillip, and another unidentified man. Defendant testified that he and his girlfriend had picked up his friend Phillip just before they were stopped by the police and noticed that Phillip had cell phones and a pellet gun when he entered the vehicle. The defense challenged the victims’ identification of defendant as the gunman by eliciting on cross-examination the victims’ admission that none had seen any tattoos on the gunman. Defendant has tattoos on his neck and right hand that were displayed to the jury. The large tattoo on the back of defendant’s hand is an ornate character that was described at trial as the letter “B” by defense counsel and the letter “R” by one of the victims looking at defendant from the witness stand. A photograph of the tattoo shows either interpretation to be reasonable. In closing argument to the jury, defense counsel asked: “How is it possible that if [defendant] is up close and personal with three separate people that not one of them remembers such a distinctive obvious tattoo?” Verdict and New Trial Motion The jury found defendant guilty of three counts of second degree robbery. (§ 211.) Defendant filed a motion for new trial asserting juror misconduct, among other claims. (§ 1181.) Defendant claimed the jury strayed from the subject of whether the victims’ 2 failure to note tattoos on the gunman proved mistaken identity into speculation about the nature and possible significance of defendant’s hand tattoo. Defendant presented evidence that one juror told the other jurors that the tattoo on defendant’s hand was not the letter “B” or “R” but the number “13” and, based on the juror’s expertise as a former law enforcement officer, opined that defendant is a gang member. Defendant submitted several juror declarations and the court conducted an extensive evidentiary hearing. The jurors’ individual accounts of the nature and extent of their discussion of tattoos and gangs contain some conflicts, which the trial court resolved and we accept.1 One of the juror declarations attests that Juror No. 4 told the deliberating jury that defendant’s “tattoo on his right hand was not the letter ‘B,’ ” which the defense wanted them to think, “but the number ‘13’ and that he ‘knew what that meant.’ ” Other jurors asked what the “13” meant and Juror No. 4 said “he was a former law enforcement officer and that if they wanted to know what it meant he would tell them.” Juror No. 4 said “the number ‘13’ was associated with the gang MS-13 and that they were the most dangerous street gang.” The juror also told the group “that because [defendant] had the number 13 tattooed on his hand it meant that [defendant] was an MS-13 gang member.” Juror No. 4 also said he knew the investigating police officer who testified at trial, Sergeant Michael Moody, and knew that Moody was familiar with Latino gangs from the officer’s work in San Francisco’s Mission District. Moody’s interrogation of defendant had been introduced at trial and included Moody’s comment to defendant, “we know you are in the game.” Juror No. 4 told the other jurors that Moody “made the comment about being ‘in the game’ because [the officer] must have seen [defendant’s] tattoos that were consistent with MS-13.” The testimony and declarations of several other jurors are largely consistent with this account, differing only in recalling that Juror No. 2 joined in 1 On review of an order granting a new trial, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” (People v. Nesler (1997) 16 Cal.4th 561, 582.) We limit our review of the evidence to objective facts and disregard all evidence of the jurors’ subjective impressions. (Evid. Code, § 1150, subd. (a).) 3 Juror No. 4’s statement that the tattoo was the number 13, and may have been the first to offer the suggestion. Another juror declared that Juror No. 4 also said that the MS-13 gang was “a violent street gang known for committing robberies.” The trial court found prejudicial juror misconduct and granted defendant’s motion for a new trial. In finding misconduct, the court stated: “had [Juror No. 4] or [Juror No. 2] said I don’t think that’s a B, I think that’s a 13 and left it at that, that would merely be a comment on the evidence. But once they bring up things about M.S. 13, that it’s a violent gang, they start bringing in gang culture, and once [Juror No. 4] reemphasizes his participation in law enforcement, that gives it extra value.” The court found that Juror No. 4 effectively told the jury “I’m a police officer” with training in gangs and “therefore I know [defendant is] a gang member.” The court also noted that Juror No. 4 introduced outside information when telling the jury that Sergeant Moody is expert in gangs and in interpreting the officer’s comment to defendant about being “in the game” as the officer’s opinion that defendant is a gang member. The court found allegations of gang affiliation to be highly prejudicial, noting that it had granted a defense motion to exclude such evidence and that “there are numerous cases that hold gang evidence would lead jurors to believe that defendant is a bad person and more likely to commit crimes.” The court found discussions of defendant’s possible gang participation to be especially damaging in this case, in which defendant testified and his credibility as a witness was in issue. Discussion In reviewing a trial court’s grant of a new trial motion, we first determine whether there was any juror misconduct. (People v. Collins (2010) 49 Cal.4th 175, 242.) The determination presents a mixed question of fact and law. As noted earlier, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” (People v. Nesler (1997) 16 Cal.4th 561, 582.) But whether those facts constitute misconduct is a legal question we review independently. (Collins, supra, at p. 242.) The trial court found that Juror No. 4 committed misconduct by introducing into the deliberations his opinion, based on the juror’s expertise as a former law enforcement 4 officer and extraneous information about gangs, that defendant is a gang member. While the case presents a close question, we agree the juror crossed the line from expressing an opinion based on the trial evidence to one based on specialized information obtained from outside sources. “A fine line exists between using one’s background in analyzing the evidence, which is appropriate, even inevitable, and injecting ‘an opinion explicitly based on specialized information obtained from outside sources’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1266.) “It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors’ views of the evidence . . . are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.” (In re Malone (1996) 12 Cal.4th 935, 963 (Malone).) In Malone, the California Supreme Court determined that a juror committed misconduct when she told other jurors that her professional reading and course work caused her to doubt the accuracy rates claimed by the examiners who conducted the petitioner’s polygraph examination and asserted the polygraph results were not reliable because of the manner in which a particular question had been phrased by the examiner. (In re Malone, supra, 12 Cal.4th at pp. 945, 963.) The court held that her statements to the other jurors constituted misconduct because the juror expressed negative opinions regarding the reliability of the petitioner’s polygraph evidence based upon her own professional study of psychology and not upon the evidence received at trial. (Id. at p. 963.) As in Malone, Juror No. 4 presented an opinion explicitly based on specialized information obtained from outside sources. (In re Malone, supra, 12 Cal.4th at p. 963.) Juror No. 4 told the jury that unchallenged testimony and argument by counsel describing the tattoo as either the letter “R” or “B” was wrong and that, based on his professional 5 knowledge as a law enforcement officer, the tattoo was actually a “13” and signified gang membership. The juror also said he knew Sergeant Moody to be an expert in gangs, although no such expertise was established at trial, and opined that Moody’s reference to defendant being “in the game” meant that Moody recognized defendant’s tattoo as a gang symbol. Juror No. 4 committed misconduct in injecting external information and his specialized knowledge into the deliberations to tell other jurors that defendant is the member of a dangerous gang. Having found juror misconduct, we must determine whether the misconduct was prejudicial. A trial court’s finding of prejudice warranting a new trial is reviewed for abuse of discretion, a standard of review more deferential than is the standard of review for an order denying a motion for new trial. (People v. Ault (2004) 33 Cal.4th 1250, 1271-1272.) “[W]here the effect of the ruling below is simply that the case will be retried free of the error or misconduct that infected the original proceeding, we may conclude that ‘ “the concerns of judicial administration tip in favor of the trial court” ’ [citation] and suggest a deferential standard of appellate review.” (Id. at pp. 1267-1268.) “[A]ffirmance of a trial court order granting a new trial on grounds that established juror misconduct was prejudicial simply endorses the trial court’s effort to fulfill its responsibility to protect the right to an impartial jury. Even if the trial court has erred on the side of caution in a close case, appellate deference to the court’s determination produces no final victory for either party, but simply allows the matter to be retried before a new jury.” (Id. at p. 1266, italics omitted.) Thus, “the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if the reviewing court itself, addressing the issues de novo, would not have found a basis for reversal.” (Id. at p. 1263.) The district attorney contends the court abused its discretion in finding that the misconduct was inherently and substantially likely to have influenced a juror without considering the evidence as a whole and weighing the strength of the incriminating evidence. At oral argument, counsel quoted the trial court’s comment that “a biased adjudicator is one of the few structural trial defects that compel reversal without 6 application of the harmless error standard.” Counsel argued: “This is the comment that the trial court made in ultimately making its ruling that it’s hands were tied and it was not allowed to apply the harmless error standard. Therein, the trial court erred and it abused its discretion.” However, the court immediately limited its comment about compelled reversal to a juror’s actual bias and noted that another basis for reversal arises when juror misconduct “is so prejudicial in and of itself that it is inherently substantially likely to have influenced a juror.” (People v. Nessler (1997) 16 Cal.4th 561, 578-579.) The court proceeded to make a thorough assessment of the evidence in considering whether the misconduct was likely to influence a juror. The court found the extraneous information prejudicial, noting that “gang evidence is so prejudicial because people . . . are likely to believe this defendant is a bad person, especially since defendant testified, that would go to his believability.” While there was strong circumstantial evidence of defendant’s participation in the robberies, the identification of defendant as the gunman was far from conclusive. The case turned on whether the jury believed defendant’s testimony denying participation in the robberies and claiming that the robberies were committed by his friend Phillip and another man. Under these circumstances, the trial court reasonably found it prejudicial for the jury to have received outside information suggesting that defendant is a gang member since gang members are commonly viewed as untrustworthy and likely to commit violent crimes. The district attorney argues the trial court failed to consider the ameliorative effect of the jury foreperson urging the jurors “to look just at the evidence that’s been presented” when gangs were being discussed. A foreperson’s admonishment is a relevant consideration when evaluating prejudice (People v. Lavender (2014) 60 Cal.4th 679, 691- 692) but is not, as argued, necessarily “sufficient to rebut prejudice resulting from juror misconduct.” The trial court heard the foreperson’s testimony and weighed it along with the testimony of other jurors in finding prejudice. Trial courts “are best positioned to determine whether errors or irregularities in proceedings before them were prejudicial.” (People v. Ault, supra, 33 Cal.4th at p. 1271.) The trial court’s finding of prejudice is fairly supported by the record. 7 Disposition The order granting a new trial is affirmed. _________________________ Pollak, Acting P.J. We concur: _________________________ Siggins, J. _________________________ Jenkins, J. A143345 8	{ "pile_set_name": "FreeLaw" }
734 F.Supp.2d 90 (2010) ALLIED PILOTS ASSOCIATION, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant. Civil Action No. 09-0536 (PLF). United States District Court, District of Columbia. August 30, 2010. 91 Edgar Neville James, Marie Chopra, James & Hoffman, Washington, DC, for Plaintiff. Thomas Edward Reinert, Jr., Aniya M. Dunkley, Morgan, Lewis & Bockius, LLP, Washington, DC, for Defendant. OPINION PAUL L. FRIEDMAN, District Judge. This matter is before the Court on the motion of defendant American Airlines, Inc. ("American") to dismiss the plaintiff's complaint. By an Order dated July 16, 2010, the Court advised the parties that it would convert the defendant's motion to dismiss into a motion for summary judgment and gave them time in which to supplement the record and their arguments in light of that conversion. Both the plaintiff and the defendant submitted additional memoranda in response to the Court's Order. In addition, the plaintiff requested that the Court construe its filings as a cross-motion for summary judgment. After considering the parties' submissions, the relevant legal authorities, 92 and the entire record in this case, the Court will grant the defendant's motion, deny the plaintiff's cross-motion, and enter judgment for American.[1] I. BACKGROUND Plaintiff Allied Pilots Association ("APA") serves as the certified collective bargaining representative of pilots who fly for American. Compl. ¶ 3. Under the collective bargaining agreement ("CBA") signed by the APA and American, "[a]ll flying performed by or on behalf of [American] or an Affiliate [is to] be performed by pilots on the American Airlines Pilots Seniority List," subject to limited exceptions that are enumerated in the CBA. CBA § 1(C)(1). The Seniority List, which is maintained by American, "contains the names of all pilots arranged in the order of system seniority, whether active or inactive, and the seniority date of each pilot." Id. § 13(G)(1). While pilots on the Seniority List generally have a contractual right to do all of American's flying, the CBA makes an exception to that rule for flights subcontracted by American to commuter air carriers. Compl. ¶ 7; CBA § 1(D). That exception is limited, however, by a provision creating what is known as the "cockpit crewmember floor" ("crewmember floor" or "floor"): In the event that the number of cockpit crewmembers employed by [American] on the American Airlines Pilots Seniority List goes below 7300, the parties agree that the commuter [air carrier] exception ... shall be terminable at the option of APA following a 90-day period to provide an opportunity for discussion.... CBA § 1(D)(4). The CBA further specifies, in a provision known as the "merger exclusion," that "[p]ilots added to the American Airlines Pilots Seniority List by way of seniority merger shall not count in calculating the number of cockpit crewmembers" that count toward the crewmember floor. Id. In August of 2008, the APA filed a grievance in which it claimed that American was in violation of Section 1(D)(4), the provision of the CBA that establishes the cockpit crewmember floor. Compl. ¶ 12. According to the APA, "the number of cockpit crewmembers employed by [American] on the American Airlines Pilots Seniority List" at that time amounted to fewer than 7,300 because the following categories of pilots did not count towards the crewmember floor: (1) furloughed pilots, id. ¶ 15; (2) "pilots on medical, disability or military leave," Opp. at 4; (3) "Management and Chief pilots not covered by the CBA or even represented by the APA," id.; (4) pilots employed by American Eagle who had received a spot on American's Seniority List, id.; and (5) pilots "added to the American pilot workforce by American's 1999 acquisition of Reno Air and 2001 acquisition of TWA." Id. at 5. American, on the other hand, contended that all of those pilots did count towards the crewmember floor, and that the "number of cockpit 93 crewmembers employed by [American]" therefore was considerably higher than 7,300. Opp. at 6. In conformity with the terms of the CBA and the Railway Labor Act, 45 U.S.C. §§ 151 et seq., the APA submitted its grievance to the American Airlines System Board of Adjustment ("System Board" or "Board") for resolution. Compl. ¶ 12; see CBA § 23 (establishing the System Board and defining its duties and the scope of its authority); 45 U.S.C. §§ 153, 184 (providing for the establishment of adjustment boards by airlines and their employees). The grievance was heard by a Board panel consisting of two members appointed by the APA, two members appointed by American, and one neutral arbitrator approved by both the APA and American. See Award at 27; CBA § 23(B)-(C). The Board ruled in American's favor. Award at 25-26. After reviewing the factual background of the grievance and reciting the language of Section 1(D)(4) of the CBA, which creates and defines the crewmember floor, the Board summarized the arguments of the parties. It noted that, according to the APA, the pilots that could be counted toward the crewmember floor did not include "former TWA and Reno pilots; furloughed pilots; American Eagle pilots; management and Chief pilots, pilots on medical, disability, personal or military leave; Check Airmen; Tulsa pilots; and staff pilots." Id. at 4-5. After describing American's contrary interpretation of the CBA and reviewing basic principles of contract interpretation, the Board identified the issues before it as follows: The contract interpretation questions involving Section 1(D)(4) which are raised by the instant grievance relate primarily to the following: first, to the phrase "the number of cockpit crewmembers employed by the Company on the American Airline Pilot Seniority List," which defines the comparator group of current pilots who count against the 7,300 cockpit crewmember floor; and second, to the language added in 1997, "pilots added to the American Airline Pilot Seniority List by way of seniority merger," a group expressly excluded from counting against the floor. More precisely, does the first phrase encompass the entire pilot complement on the Seniority List or is it limited to active pilots[?] As to the "merger exclusion," should it be interpreted to deal only with future mergers after the [e]ffective date of the 2003[CBA], or does it exclude all pilots added to the Seniority List by a merger after 1997[?] Id. at 8. To answer those interpretive questions, the Board analyzed the text, structure, purpose, and drafting history of the CBA. According to the Board, the original purpose of the crewmember floor, which was first added to the CBA in 1987, was to protect "the entire pilot complement on the Seniority List" from attrition. Award at 19. The Board based that conclusion at least in part on the testimony of Phillip Smythe, an American executive who had participated in the negotiation of the crewmember floor in 1987. Id. at 12-13. Mr. Smythe testified that the level of the crewmember floor was set at 6,285 in 1987 because that number encompassed "the entire Seniority List a[t] that time, both active and inactive pilots, and including Check airmen, management pilots, and pilots on leave." Id. at 12. Guided by that understanding of the floor's purpose, the Board interpreted the language defining the floor broadly. Under the language of the CBA, the floor is to protect "cockpit crewmembers employed by the Company [American] on the American Airlines Pilots Seniority List." 94 CBA § 1(D)(4). The APA argued that the phrase "employed by the Company" acts as a significant limitation on the number of pilots who counted towards the crewmember floor, applying only to those "pilots in active duty" and excluding "those on leave, in supervisory positions, and on furlough." Award at 9. The Board disagreed. It noted that the word "employ" is used in the CBA to refer both to active and inactive personnel and so does not necessarily refer only to active pilots in Section 1(D)(4). Id. Furthermore, the "inactive" pilots identified by the APA, while not currently flying for American, still possess various characteristics associated with employment. Id. For example, pilots "on medical disability receive[] a stream of income, retain seniority rights to return, and are carried on APA's membership database." Id. at 22. Pilots on other types of leave, though receiving "no compensation," "retain rights to return to active employment and remain on APA's membership database." Id. Thus, contrary to the APA's assertions, the phrase "employed by the Company" did not unambiguously prevent pilots on leave from counting toward the crewmember floor. Based on the history of the CBA and of Section 1(D)(4) in particular, the Board decided that pilots on leave were intended by the parties to the CBA to count toward the floor. When the level of the floor was first set in 1987, it was determined "based on the entire Seniority List," including "active and inactive pilots ... and pilots on leave." Award at 12. In 1997, when the floor was adjusted upward, its new level was "based on a number that included ... pilots in leave." Id. at 21. According to the Board, these factual findings indicated that the parties contemplated that pilots on leave would be considered "employed by the Company." Id. at 22. The Board reached the same result with regard to pilots on furlough. Acknowledging that such pilots receive no compensation from American, the Board pointed out that they nevertheless have "contractual recall rights," meaning that, under the Railway Labor Act, they "retain an employee-employer relationship, and are thus `employees' eligible to vote in [National Mediation Board] representation elections." Award at 25. As a result, the phrase "employed by the Company" does not necessarily exclude furloughed pilots. In addition, the Board found that the history of the CBA indicates that Section 1(D)(4) is not meant to provide furlough protectionthat is, the crewmember floor was not written to deter American from placing pilots on furlough, which would be the effect of the provision if furloughed pilots did not count towards the floor. Id. at 16. In support of this conclusion, the Board pointed out that the 1997 version of the CBA incorporated a furlough protection clause unrelated to the crewmember floor, suggesting that furlough protection was not the aim or the effect of the floor. Id. Because the language of Section 1(D)(4) does not, under the Board's reading, exclude furloughed pilots, and because the floor is meant to provide protection for a broad set of pilots on the Seniority List, the Board concluded that pilots on furlough do count towards the floor. Id. at 25. The APA also contended before the Board that Section 1(D)(4) does not protect some 400 pilots employed by the commuter carrier American Eagle who gained the right to be placed on the American Seniority List in 1997. See Award at 24; Opp. at 13. As the APA pointed out, those pilots are employed by American Eagle, not by American. Award at 24. According to the APA, they therefore are not encompassed within Section 1(D)(4) of the CBA because they are not "employed by 95 the Company." The Board, while noting that it was "not unsympathetic" to that argument, nevertheless rejected it. Id. Noting that the American Eagle pilots received the right to be placed on the Seniority List only by negotiating an agreement with the APA, the Board pointed out that by contracting to receive a place on the Seniority List, the American Eagle pilots secured the rights that come with a place on the List, including the protection provided by the crewmember floor. Id. The APA could have prevented the American Eagle pilots from receiving that protection by including a provision to that effect in its agreement with them, but it failed to do so and so must bear the consequences. Id. Having addressed the parties' dispute concerning the meaning of the phrase "employed by the Company," the Board turned to the phrase "cockpit crewmember." The APA argued that only line pilots, not management or chief pilots or check airmen, count toward the crewmember floor. Award at 23; see also Opp. at 14. Noting that each of the types of pilot that the APA sought to exclude also serves as a line pilot at least sporadically, the Board concluded that management or chief pilots and check airmen fall within the scope of Section 1(D)(4). Award at 23. That conclusion followed from the fact that the level of the crewmember floor was set in 1987 based on a number of pilots that included management pilots as well as check airmen. Id. at 12; Id. at 10. The Board's last task was to interpret the merger exclusion clause: "Pilots added to the American Airlines Pilots Seniority List by way of seniority merger shall not count in calculating the number of cockpit crewmembers" that count toward the crewmember floor. CBA § 1(D)(4). The merger exclusion language was first included in the CBA in 1997 and was retained when the CBA was revised and renewed by the parties in 2003. See Award at 16; CBA § 1(D)(4). According to the APA, the merger exclusion prevents from counting toward the crewmember floor any pilots who were added to American's Seniority List by means of a merger that occurred after the signing date of the 1997 CBA. See Award at 10. By that logic, pilots added to the Seniority List in connection with American's acquisition of TWA in 2001 and Reno Air in 2000 do not count toward the floor. Id. The Board found the APA's logic unpersuasive, concluding that the language of the merger exclusion "was intended to apply only to future mergers during the term of an Agreement." Award at 19. It reached that conclusion first by determining, based on the negotiations leading to the adoption of the merger exclusion, that "the purpose of the ... provision was to protect APA from post-Agreement mergers." Id. at 20. Since the provision was intended to provide protection from future events, it applied only prospectivelythat is, only in the event that pilots were added to the Seniority List by a merger that occurred after the effective date of the CBA containing the provision. Id. As a result, the 1997 exclusion clause did initially operate to prevent the TWA and Reno pilots from counting towards the crewmember floor. Id. at 16. Once a new version of the CBA was adopted in 2003, however, the 1997 version was superseded and rendered ineffective. Award at 20. While the 2003 CBA also contained a merger exclusion clause, that provision was phrased in exactly the same language as the 1997 provision, and so should have the same meaning and effect; it should apply only prospectively, to mergers occurring after the adoption of the 2003 agreement. Id. at 20-21. By that logic, the 2003 merger exclusion clause would not apply to pilots added to the Seniority List 96 by means of mergers that occurred in 1999 and 2000. Id. The Board's conclusion that the 1997 and 2003 merger exclusion clauses should operate in the manner describedthat they should apply only to mergers occurring within the term of the specific version of the agreement in which each clause appearedwas based on a review of the drafting history and the purposes of the crewmember floor. In the Board's judgment, the crewmember floor was adopted "as a protection of the size of the entire pilot complement in the Seniority List against attrition." Award at 13. Counting towards the crewmember floor any pilots added to the List by merger after the signing of the operative CBA could undermine that purpose "by masking the attrition in the Seniority List." Id. at 20. Once the CBA operative at the time of a merger had expired and been replaced by a renegotiated CBA, however, the APA had the opportunity to correct for the effect on the List of any pilots added by mergerby negotiating for a higher crewmember floor. See Id. at 21. Because the APA could protect its interests by negotiation once the time to adopt a new CBA had come, there was no need to prevent from counting toward the crewmember floor any pilots added to the List by merger prior to the adoption of a given CBA. Id. Indeed, the Board noted, the APA attempted to negotiate for an increase in the crewmember floor to compensate for the addition of the Reno pilots multiple times in the years leading up to the adoption of the 2003 CBA. Id. Having examined and rejected each of the APA's arguments, the Board found "that American has over 11,300 pilots on its current Seniority List" and so "is not in violation [of CBA] Section 1.D.4. with regard to the Cockpit Crewmember Floor." Award at 26. Two Board membersthose appointed by the APAdissented. Id. at 27. The APA subsequently filed the pending complaint before this Court, seeking vacatur of the Board's decision. II. DISCUSSION Under the Railway Labor Act ("RLA"), which applies to employees of air carriers, see 45 U.S.C. §§ 181-88, the "findings and order" issued by an Adjustment Board to resolve a labor dispute are "conclusive on the parties" unless one or more of three conditions are met: (1) the Board failed "to comply with the requirements of" the RLA; (2) the Board's award fails "to conform, or confine itself, to matters within the scope of the [Board's] jurisdiction"; or (3) a member of the Board has engaged in "fraud or corruption" related to the issuance of the award. 45 U.S.C. § 153 First (q); see Northwest Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 808 F.2d 76, 80 (D.C.Cir.1987) (applying this standard in an airline labor dispute). Only the second of those conditions is at issue in this case. The APA contends that the Board acted in excess of its jurisdiction in rejecting the APA's interpretations of Section 1(D)(4) of the CBA. Compl. ¶ 18; Opp. at 11. A labor arbitration board acts within the scope of its jurisdiction so long as its final award is "confined to interpretation and application of the collective bargaining agreement." United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). If "the arbitrator's decision `draws its essence from the collective bargaining agreement,' it must be enforced." Northwest Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 808 F.2d at 82 (quoting United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. at 597, 80 S.Ct. 1358). That "extraordinarily deferential" standard "is met ... if the arbitrator `premise[d] [its] award on [its] construction of 97 the contract.'" Nat'l Postal Mail Handlers v. Am. Postal Workers Union, 589 F.3d 437, 441 (D.C.Cir.2009) (quoting United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. at 598, 80 S.Ct. 1358). In reviewing the arbitration award, a court asks only "whether the arbitrator was `even arguably construing or applying the contract.'" Id. (quoting Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001)). Admittedly, this is an "extraordinarily deferential standard." Id. Perhaps most importantly, because "[t]he federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards," United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987), "[c]ourts do not review the substantive reasonableness of a labor arbitrator's contract interpretation." Nat'l Postal Mail Handlers v. Am. Postal Workers Union, 589 F.3d at 441. Because the parties "`authorized the arbitrator to give meaning to the language of the [collective bargaining] agreement,'" a court "`cannot reject [the arbitrator's] award on the ground that the arbitrator misread the contract.'" Madison Hotel v. Hotel & Restaurant Employees Local 25, 144 F.3d 855, 859 (D.C.Cir.1998) (quoting United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. at 38, 108 S.Ct. 364). That principle holds true even where the court is convinced that "the arbitrator erredor even seriously erredin interpreting the contract." Nat'l Postal Mail Handlers v. Am. Postal Workers Union, 589 F.3d at 441. The arbitrator's decision may be set aside "only if the arbitrator [has] `stray[ed] from interpretation and application of the agreement and effectively dispense[d] his own brand of industrial justice.'" Id. (quoting E. Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000)) (internal quotation marks omitted). The APA contends that the award issued by the Board fails to draw its essence from the CBA because it "contradict[s]" and "ignore[s]" the "plain language" of the contract. Opp. at 11. According to the APA, the language of Section 1(D)(4) so clearly supports the APA's interpretation of the CBA that the Board necessarily "applied its own brand of industrial justice [and] exceeded the scope of its jurisdiction" by rejecting that interpretation. Compl. ¶ 16. Neither the language of the CBA nor the reasoning employed by the Board, however, supports the APA's argument. The APA insists that the Board, in finding that inactive, management, and American Eagle pilots count toward the crewmember floor, "render[ed] the ... terms `cockpit crewmembers' and `employed by the Company' a nullity." Opp. at 13. That argument assumes the outcome of one of the main questions before the Board: what is the meaning of the phrases "cockpit crewmembers" and "employed by the Company"? Contrary to the APA's assertions, neither of those phrases has a self-evident, unambiguous meaning, and neither is explicitly defined in the CBA itself. In interpreting those phrases, the Board drew on basic and appropriate tools for contract interpretationthe text, structure, purpose, and history of the CBAin order to ascertain the parties' intention in negotiating and adopting the language in question. It therefore did precisely what it was called upon and authorized to do, and, since it was undoubtedly "construing or applying the contract," it acted well within its jurisdiction. Nat'l Postal Mail Handlers v. Am. Postal 98 Workers Union, 589 F.3d at 441 (citation and internal quotation marks omitted). The APA's arguments to the contrary are simply challenges to the merits of the Board's conclusion thinly disguised as jurisdictional challenges. For example, the APA insists that allowing American Eagle pilots to count toward the crewmember floor disserves the floor's purpose because that purpose is "to prevent diversion of American flying jobs to commuter carriers," and "including the Eagle pilots in the Floor ... mak[es] the Floor a mechanism by which to enable the diversion of American Flying jobs to a commuter carrier." Opp. at 13 (emphasis in original). As a factual matter, the Board determined that the crewmember floor was meant to protect the jobs of American pilots by protecting "the entire pilot complement on the Seniority List" from attrition. Award at 19. That function of the List would be served if American Eagle pilots, who appeared on the Seniority List by virtue of an agreement with the APA, were counted towards the floor. Id. at 24. In making that determination regarding the purpose of the floor and the addition of the American Eagle pilots to the Seniority List, the Board may have erred, as the APA suggests. But because the Board reached its decision by construing the CBA, it is not the task of this Court to correct the Board's interpretation, even if that interpretation was "badly mistaken." Nat'l Postal Mail Handlers v. Am. Postal Workers Union, 589 F.3d at 443; see also U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 695 (D.C.Cir.2009) ("[U]nder Enterprise Wheel and its progeny, the arbitrator has a right to be wrong in his interpretation of the parties' CBA."). Similarly, the APA's substantive disagreements with the Board's findings that furloughed pilots, management pilots, and pilots on leave should count toward the crewmember floor, see 13-15, do not change the fact that the Board made those findings based on its interpretation of the CBA. The Board explained its reasoning in terms of the CBA's language, purpose, and history. It thus was "at least arguably construing or applying the contract" and so issued a decision that drew its essence from the CBA. Nat'l Postal Mail Handlers v. Am. Postal Workers Union, 589 F.3d at 444. The APA's arguments regarding the merger exclusion clause must also fail. According to the APA, the Board "effected a change in the terms of the CBA" by finding that the merger exclusion applied to the Reno and TWA pilots while the 1997 CBA was in effect, but not once the 2003 CBA had become effective. Opp. at 16. Far from changing the meaning of the merger exclusion, however, the Board applied it entirely consistently: it found that in both the 1997 and the 2003 CBA the exclusion applied prospectively to pilots added to the Seniority List by merger, but only for so long as the version of the CBA in effect at the time of the merger remained operative. See Award at 19-21. The APA may disagree that the clause should, in fact, operate in that manner, but again, such a disagreement is grounded in a dispute over the manner in which the CBA should be interpretedthe province of the Board, not a reviewing court. See, e.g., U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d at 695 ("It does not matter whether [the Court] agree[s] with [an arbitrator's] reasoning or judgment, so long as [the Court] find[s] that [the] award rested on [the arbitrator's] construction of the CBA."). III. CONCLUSION For the foregoing reasons, the Court will grant the defendant's motion for summary judgment and deny the plaintiff's *99 cross-motion for summary judgment. An Order consistent with this Opinion will issue this same day. SO ORDERED. NOTES [1] The papers reviewed by the Court in connection with the defendant's motion include the following: the plaintiff's complaint ("Compl."); the defendant's motion to dismiss, which has been converted into a motion for summary judgment ("MSJ"); plaintiff's opposition to the defendant's motion ("Opp."); the defendant's reply to the plaintiff's opposition ("Reply"); Declaration of John S.F. Gross (attached to MSJ), Ex. B ("CBA"); Declaration of John S.F. Gross, Ex. C (Decision and Award of the American Airlines Pilots' System Board of Adjustment) ("Award"); plaintiff's submission in response to the Court's July 16, 2010 Order; defendant's supplemental memorandum in support of its dispositive motion; plaintiff's reply in support of its submission in response/motion for summary judgment.	{ "pile_set_name": "FreeLaw" }
456 F.2d 937 20 Wage & Hour Cas. (BN 537, 67 Lab.Cas. P 32,653 James D. HODGSON, Secretary of Labor, United StatesDepartment of Labor, Plaintiff-Appellee,v.ELLIS TRANSPORTATION CO., a corporation, and Wade G. Ellis,Defendants-Appellants. No. 71-1561. United States Court of Appeals,Ninth Circuit. March 15, 1972. David G. Moore (argued), of Reid, Babbage & Coil, Riverside, Cal., for defendants-appellants. Carin Ann Clauss (argued), Helen W. Judd, Dept. of Justice, Alfred G. Albert, Acting Solicitor of Labor, Bessie Margolin, Assoc. Solicitor, Washington, D. C., John M. Orban, Assoc. Regional Solicitor, Los Angeles, Cal., for plaintiff-appellee. Before HAMLEY, HUFSTEDLER and WRIGHT, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 In this action brought under the Fair Labor Standards Act (29 U.S.C. Sec. 201), et seq., the Secretary of Labor alleged the appellant Ellis Transportation Co. was in violation of Sec. 7(a) (1) of the Act by failing to pay overtime to 12 employees. The district court was asked to restrain future violations and to enjoin further withholding of past due wages. 2 Ellis Transportation contended that its employees were exempted by the so-called Motor Carrier Act exemption, 29 U.S.C. Sec. 213(b). Further, it asserted that George Blackstone, a supervising mechanic, was exempted because he was an independent contractor, not an employee. The district court rejected both contentions and granted the equitable relief sought by the Secretary. We affirm. I. 3 Section 7(a) (1) of the Fair Labor Standards Act requires employers, whose employees meet the jurisdictional requisites, to compensate them at no less than one and one-half times the regular hourly wage for time worked in excess of a 40-hour work week. Section 13(b) of the Act exempts any employee over whom the Interstate Commerce Commission has regulatory power to fix qualifications and maximum hours of service pursuant to Section 204 of the Motor Carrier Act, 49 U.S.C. Sec. 304. The critical question in this case is whether Ellis Transportation falls within the Section 13(b) exemption. 4 Ellis Transportation leases and maintains rolling stock, its principal customer being Ellis Interstate Corporation, which holds an I.C.C. license for interstate trucking. Ellis Transportation is a California corporation and Wade Ellis is its sole shareholder. Prior to 1962 Ellis Transportation held an I.C.C. interstate trucking license. In 1962 Mr. Ellis formed Ellis Interstate as a wholly owned corporate subsidiary of Ellis Transportation, and transferred the I.C.C. license to the new corporate entity. The parties to this suit have stipulated that Ellis divided his business in this manner to simplify his compliance with the record keeping and reporting requirements of the Interstate Commerce Commission and the California Public Utilities Commission. 5 The two companies share one physical facility in Indio, California. They share one telephone number, and the trucking industry customarily refers to the whole operation as Ellis Transportation. In a real economic sense, these two companies are integrated into one business. 6 Appellants contend that the court, by looking to substance instead of corporate form, should hold that Mr. Ellis' entire trucking business falls within the Motor Carrier Act exemption. 7 The argument is plausible, but we cannot accept it. The Supreme Court decisively rejected this approach to the Sec. 13(b) exemption in Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786 (1946). In Boutell a partnership, the F. J. Boutell Service Company, leased vehicles exclusively to a transportation company, F. J. Boutell Drive-Away Company, a corporation wholly owned by the partners in the Service Company. The Court held that the two companies were legally independent, so the partnership's employees did not come within the Motor Carrier Act exclusion. Three Justices dissented on the ground that, despite the legal forms chosen, the two companies in reality constituted a single business. 8 No meaningful difference distinguishes Ellis' situation from that presented in Boutell, as appellants' counsel virtually conceded at oral argument. We hold that the employees of Ellis Transportation Company are not employees of a common carrier by motor vehicle. 9 The Boutell emphasis on legal form may initially seem senseless, yet it serves a worthwhile purpose. The Court's opinion indicates that the Interstate Commerce Commission had disclaimed jurisdiction over employees of vehicle leasing companies, apparently without regard to their actual integration with transportation companies. Boutell, supra, at 470, 66 S.Ct. 631. So far as we can determine, the Interstate Commerce Commission still declines to regulate employees of leasing companies that are legally independent of transportation firms. See Wirtz v. Dependable Trucking Co., 260 F.Supp. 240 (D.N.J. 1966). 10 Exempting the Ellis Transportation Company employees from the coverage of the Fair Labor Standards Act would likely leave them in a regulatory limbo. The Secretary of Labor would have no power to govern their working conditions, and the I.C.C. would not reach them as a matter of administrative practice. Even if the latter should in the future assume regulatory jurisdiction, it could not restore the lost overtime pay to these employees. II. 11 Ellis argues that the trial court erred in holding that an employer-employee relationship existed between Ellis Transportation and George Blackstone, a diesel mechanic who supervised the other Ellis mechanics. Some aspects of Blackstone's work for Ellis tend to indicate that he might be an independent contractor. For example, he paid his own insurance, taxes, and social security; he did not receive medical coverage, vacation benefits, or paid holidays; he kept time statements and submitted weekly invoices to Ellis. 12 Other facts make Blackstone look like an Ellis employee. He worked exclusively for Ellis Transportation Company; he had no independent business organization or business license, though he had earlier held a license while working for himself; he depended wholly on Ellis for his livelihood; he supervised the other Ellis mechanics, and was obliged to maintain regular hours even though he did not punch the company time clock. 13 Appellant's independent contractor argument draws upon California common law. This approach ignores the Fair Labor Standards Act's own definition of the employer-employee relationship.1 * * * 14 * * * 15 "This Act contains its own definitions, comprehensive enough to require its application to many persons and working relationships which, prior to this Act, were not deemed to fall within an employer-employee category." Walling v. Portland Terminal Co., 330 U.S. 148, 150-151, 67 S.Ct. 639, 640, 91 L.Ed. 809 (1947). 16 Rutherford Food Corporation v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947), is the leading decision in this area. The district court had applied common law principles in holding that a crew of boners in a meat packing plant were independent contractors. The Court of Appeals for the 10th Circuit and the Supreme Court took a different tack, holding that coverage would be governed by underlying economic realities instead of traditional rules borrowed from tort theory.2 The Supreme Court said that the courts must examine the circumstances of the whole activity, and "[w]here the work done, in its essence, follows the usual path of an employee, putting on an 'independent contractor' label does not take the worker from the protection of the Act." 331 U.S. at 729, 67 S.Ct. at 1476. 17 Applying these principles, we have no difficulty in deciding that the district court correctly classified Blackstone as an Ellis Transportation employee. We cannot realistically say that Blackstone is in business for himself, since he works exclusively for Ellis as an essential, integral part of its everyday operation. III. 18 Ellis half-heartedly contends that injunctive relief is inappropriate because (1) Ellis is presently in compliance with Sec. 7(a) (1) since a collective bargaining agreement now requires it to pay overtime, and (2) the Secretary delayed bringing action for more than a year after discovering the violations. We observe that the collective bargaining agreement does not cover four of the 12 employees involved in this suit. Further, without the injunction these employees would have no legal remedy to collect the past due overtime we hold is owed them. See Wirtz v. Malthor, Inc., 391 F.2d 1 (9th Cir. 1968). The injunction should issue. See Wirtz v. Milton J. Wershow Co., 416 F.2d 1071 (9th Cir. 1969); Wirtz v. Malthor, Inc., supra. 19 We affirm the judgment of the district court. 1 29 U.S.C. Sec. 203 says: "As used in this chapter- (d) 'Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee . . . . (e) 'Employee' includes any individual employed by an employer. (g) 'Employ' includes to suffer or permit to work." Mr. Justice (then Senator) Black described this as, "the broadest definition that has ever been included in any one Act." 81 Cong.Rec. 7657, 75th Cong., 1st Sess. (1937). 2 The Court of Appeals said: "[I]n doubtful situations, coverage is to be determined broadly by reference to the underlying economic realities rather than by traditional rules governing legal classifications of master and servant on one hand, and employer and independent contractor on the other. . . . [T]he Act concerns itself with the correction of economic evils through remedies which were unknown at common law, and if it expressly or by fair implication brings within its ambit workers in the status of these . . . it is immaterial whether under the principles of the common law the relationship between [the Company] and the [workers] has been that of employer and independent contractor for other purposes." Walling v. Rutherford Food Corporation, 156 F.2d 513, 516 (10th Cir. 1946), aff'd, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947).	{ "pile_set_name": "FreeLaw" }
622 F.2d 872 7 Bankr.Ct.Dec. 1235 In the Matter of Jules B. LeBLANC, III, Bankrupt.Sally L. BRINKLEY and Roger J. LeBlanc, Appellants,v.CHASE MANHATTAN MORTGAGE AND REALTY TRUST and LouisianaNational Bank, Appellees. No. 78-2715. United States Court of Appeals,Fifth Circuit. Aug. 1, 1980. Jumonville, Hartley, Plauche & Broadhurst, F. Henri Lapeyre, Jr., New Orleans, La., Andrew J. S. Jumonville, Breazeale, Sachse & Wilson, Layfette, La., Van R. Mayhall, Baton Rouge, La. for Sally L. Brinkley. Miller, Cassidy, Larroca & Lewin, William H. Jeffress, Jr., Washington, D.C., for Roger J. LeBlanc. Durrett, Hardin, Hunter, Dameron & Fritchie, Lee C. Kantrow, Baton Rouge, La., Theodore L. Freedman, Richard F. Levy, Chicago, Ill., for Chase Manhattan Mortgage and Realty Trust. Taylor, Porter, Brooks & Phillips, Fredrick R. Tulley, Tom F. Phillips, Baton Rouge, La., for Louisiana Nat. Bank. Appeal from the United States District Court for the Middle District of Louisiana. Before GODBOLD, TJOFLAT and SAM D. JOHNSON, Circuit Judges. SAM D. JOHNSON, Circuit Judge: 1 This is an appeal from the district court's affirmance of an order of the bankruptcy court that confirmed a plan for the rehabilitation of a debtor under Chapter XII of the Bankruptcy Act. The debtor in this case is Jules B. LeBlanc, III-Corporate Hotel Partnership. The debtor owned and operated the Hilton Hotel at Corporate Square in Baton Rouge, Louisiana, until it filed for relief under Chapter XII in November 1977. Its two secured creditors, Chase Manhattan Mortgage and Realty Trust (Chase) and Louisiana National Bank (LNB), proposed the plan that the bankruptcy court confirmed; they are the appellees in this case. The appellant in this case is Roger J. LeBlanc, an unsecured creditor and a brother of Jules B. LeBlanc, III.1 Roger LeBlanc's appeal requires this Court to decide four issues: (1) whether the Louisiana usury exception for loans to corporations applies to dummy corporations formed to take advantage of that exception; (2) whether an interest rate of 4 points above prime is "fixed in writing" as required by Louisiana law; (3) whether the plan in this case improperly placed insiders family members and business associates of general partners of the debtor in a separate class that received nothing under the plan; (4) whether the bankruptcy court's evaluation of the debtor's hotel was clearly erroneous. We resolve each of these issues against the appellant and affirm. I. The Facts 2 In 1973, Jules B. LeBlanc, III, and some of his associates began preliminary discussions with Chase about a loan for the construction of a high-rise hotel in Baton Rouge at Corporate Square. Chase agreed to lend $7.6 million for the hotel to a "corporate designee" of Jules B. LeBlanc, III, and his associates. On November 20, 1973, Chase loaned $7.6 million to Corporate Hotel, Inc., the corporate designee, and Chase took a first lien on the property where the hotel was to be built. Corporate Hotel, Inc. held record title to this property. Chase advanced funds under the note to pay the costs of constructing the hotel. As the hotel neared completion in 1975, however, Chase's note went into default. Chase refused to loan any additional funds for the purchase of furniture, fixtures, and hotel equipment. Chase did agree to a "workout," under which it would refrain from foreclosure, allow a deferral of accrued interest, and reduce interest due in the future on its note. In exchange for Chase's concessions, the workout obligated Jules B. LeBlanc, III, to obtain from other sources a.$1.6 million loan to furnish the hotel and a $2.25 additional equity contribution to complete construction of the hotel. LNB loaned the.$1.6 million needed to furnish the hotel. In return, it took a first lien on the hotel furnishings and equipment and a lien second to Chase's on the hotel itself. LNB also loaned $2.25 million to Sally LeBlanc Brinkley through several intermediaries to finance her purchase of a 41% equity interest in the hotel venture. Finally, as part of this workout, Corporate Hotel, Inc. transferred title to the hotel to the debtor in this case, Jules B. LeBlanc, III-Corporate Hotel Partnership. The debtor is a partnership in commendam, the Louisiana form of a limited partnership. Jules B. LeBlanc, III, is the general partner of the debtor holding a 70 percent interest in the debtor. 3 With this influx of new money, the debtor completed the hotel and opened for business in the spring of 1976. Business went poorly, however, and the debtor defaulted again on its interest payments to Chase. On November 8, 1977 the debtor filed for relief under Chapter XII. The case was transferred to New Orleans because the Baton Rouge bankruptcy judge was a director of LNB. The debtor's main asset was, of course, the hotel. The debtor also had a small amount of cash on hand plus some accounts receivable. Chase and LNB were the only secured creditors, and there were a number of unsecured creditors. In January 1978, Chase and LNB jointly filed a proposed plan. They conditioned the plan on a finding by the bankruptcy court that the debtor's property was worth less than their liens on it. The court found that the hotel and its furnishings were worth $10 million, and that the debtor had $260,000 cash. The court set the value of Chase's claim against the debtor at $8.72 million and LNB's claim against the debtor at $1.79 million. The bankruptcy court held that interest was to accrue on these claims until their release. Thus, the value of the combined claims of Chase and LNB, $10.5 million, exceeded the value of the debtor's property, $10.26 million, and the condition on Chase and LNB's proposed plan was met. 4 The plan provided for a new corporation, 100% owned by Chase, to take title to, operate, and eventually sell the hotel. The plan also provided for the execution of a note for $11.95 million in favor of Chase and LNB. When the new corporation eventually sold the hotel, the plan provided for Chase to take 82 percent of the sale proceeds and LNB 18 percent. 5 The plan obligated Chase to provide up to $300,000 of its own money to meet the payments specified in the plan.2 The plan provided for full payment of all priority and administrative expense claims and varying payments to the different classes of unsecured creditors. Small trade creditors holding the claims of $200 or less were to be paid in full; other trade creditors holding claims greater than $200 were to be paid 40% of their claims; and unsecured creditors who were also insiders of the debtor were to be paid nothing under the plan. Insiders included partners in the debtor, anyone in the immediate family of a partner of the debtor, and any entity owned or controlled by anyone otherwise defined as an insider. Under the plan, Roger J. LeBlanc an insider would receive nothing on his $100,000 unsecured claim against debtor. 6 All of the smaller trade creditors and 98% of the larger trade creditors voted to accept the plan. The insiders, who took nothing under the plan, voted not to accept the plan. The bankruptcy court confirmed the plan on March 15, 1978. Under the plan, Chase and LNB have paid out $120,000 to the trustees, $10,000 to other administrative expense claimants, and $398,000 to the unsecured trade creditors. How much of this $528,000 paid out under the plan was advanced by Chase and LNB is not clear because the operation of the hotel may have generated revenues between the time that the plan was confirmed and the time that creditors were actually paid. Roger J. LeBlanc appealed the bankruptcy court's order confirming the plan to the district court. The appellant stayed execution of the plan by posting a supersedeas bond. The district court affirmed the confirmation order and this appeal followed. Pending resolution of this appeal, the parties agreed to a limited stay of execution of the plan. The limited stay allows the Chase subsidiary to operate but not to sell the hotel. II. The Louisiana Corporate Usury Exception 7 The appellant's primary point on appeal is that the bankruptcy court erred in not reducing the amount of Chase's claim against the debtor for allegedly usurious interest. The Chase note for $7.6 million to Corporate Hotel, Inc. set the interest at four points above the prime rate charged by the Chase Manhattan Bank in New York. Of the $8.72 million claim allowed to Chase by the bankruptcy court, $2.04 million was accrued interest. Chase has stipulated that a substantial part of the interest included within its claim accrued at a rate greater than 10 percent. At all times relevant to this case, Title 9, Section 3503 of the Louisiana Statutes provided that interest on loans secured by a mortgage on immovable property shall not exceed 10 percent.3 Title 9, Section 3501 of the Louisiana Statutes provides for the forfeiture of the entire interest in any note that charges a rate in excess of the lawful maximum.4 Chase has stipulated that a large proportion of the over $2 million interest included in its claim was accrued at a rate in excess of ten percent. Chase claims that its loan was not usurious because it falls within the Louisiana corporate usury exception, which allows corporations to agree to any rate of interest and which prohibits a corporation from asserting a usury defense.5 8 Appellant claims that the corporate usury exception does not apply to Chase because Chase made its loan to a dummy corporation formed solely for the purpose of circumventing the usury laws of Louisiana. Appellant cites no Louisiana authority for this proposition. Instead, he relies on cases from other jurisdictions. Chase has responded with a three point attack to defeat appellant's attempt to avoid the corporate usury exception. First, Chase claims that Corporate Hotel, Inc. was not a dummy corporation formed merely to circumvent the usury laws of Louisiana. Second, Chase claims that the jurisdictions in this country are split on whether a debtor can form a dummy corporation to evade the usury laws, and that the Louisiana courts would follow the "better rule," which allows evasion. Third, Chase claims that no state has ever voided a corporate usury exception on facts similar to those in the instant case. We assume, without deciding, that Corporate Hotel, Inc. was a dummy corporation formed so Chase could charge interest over ten percent. We hold that the Louisiana courts would apply the corporate usury exception given the facts of this case, and we affirm the bankruptcy court's allowance of interest as part of Chase's claim.6 9 The key fact in determining whether the Louisiana courts would hold the usury exception inapplicable to the loan from Chase to Corporate Hotel, Inc. is that Chase loaned almost $8 million for a business purpose to a profit making enterprise. As the New York Court of Appeals stated in Schneider v. Phelps, 41 N.Y.2d 238, 391 N.Y.S.2d 568, 571, 359 N.E.2d 1361, 1365, "There is no difficulty in sanctioning the use of a shell corporation to avoid the usury laws provided that the true borrower has a business purpose and the corporation itself is a financing device in furtherance of the profit oriented enterprise." The court went on to distinguish between a shell corporation formed to secure a loan for the profit making purposes of a business and a shell corporation formed to secure a loan for the personal obligations of an individual. The court held that it would recognize the corporate usury exception only for a shell corporation formed to secure a loan for a business purpose. It also held that the corporate usury exception would not apply to a shell corporation formed "to strip from an impoverished debtor the benefits of the usury laws." 391 N.Y.S.2d at 571, 359 N.E.2d at 1365. In the instant case, there is no question that Corporate Hotel, Inc., was formed to secure a loan for a business purpose of a profit making enterprise. 10 The Arizona courts have followed New York in holding that a usury defense is not available to a corporate shell formed to borrow money for a business purpose. See Gangadean v. Flori Investment Co., 11 Ariz.App. 512, 466 P.2d 63 (1970). In that case, the plaintiff sued to recover on a note made by a corporation that was incorporated two days before the loan was made. The individual defendants in the action, a husband and wife, had guaranteed the note. The trial court found that the loan was made for the business purpose of marketing a beauty oil product and held that the individual defendants could not accept a usury defense. The appellate court affirmed. Fifty years ago, the Court of Appeals of Maryland held that a loan to a dummy corporation formed to finance the acquisition of furniture business was within the corporate usury exception. In Rabinowich v. Eliasberg, 159 Md. 655, 152 A. 437 (1930), the lender agreed to loan $65,000 to finance the acquisition of a furniture business provided Rabinowich formed a corporation to take title to the property of the furniture business and to mortgage that property to the lender. Again, this case illustrates that a lender can require a borrower to form a corporation to circumvent or lessen the impact of usury laws as long as the loan is made for a business purpose. See also American Century Mortgage Investors v. Regional Center, Ltd., 529 S.W.2d 578 (Tex.Civ.App. Dallas 1975) (reversing the grant of a temporary injunction enjoining foreclosure of a loan at four and one half percent over prime where the lender required borrower to form a corporation so it could demand a higher rate of interest.) 11 The cases that appellant cites for the proposition that a dummy corporation cannot be formed to circumvent the usury laws generally involve loans made to shell corporations formed to acquire a loan for the personal obligations of the individual guarantor of the loan. In Havens v. Woodfill, 266 N.E.2d 221 (Ind.App.1971), the lender required the borrowers, a husband and wife, to form a partnership to circumvent the Indiana usury statute. The lender made three separate loans of $100 to the borrowers. The concurring opinion in the case stressed that there was no evidence that the husband and wife were engaged in any business enterprise. 266 N.E.2d at 227. In Walnut Discount Co. v. Weiss, 205 Pa.Super. 161, 208 A.2d 26, 28 (1965), the court stated that a Pennsylvania corporate usury exception does not "extend its effect to loans to individuals who, though on the face of the documents (are) endorsers or guarantors of a corporate obligation, are in fact the real debtors." The appellant here seeks to use this broad language to support a favorable result in this case. The facts of the two cases, however, are not similar at all. In Walnut Discount, the borrowers were two parents who guaranteed a $2900 obligation of a successor corporation to a bankrupt corporation of which their son had been president. See also Lesser v. Strubbe, 67 N.J.Super. 537, 171 A.2d 114, 116 (Super.Ct. at Div.1961) (allowing the assertion of a usury defense in a loan to a corporation when the trial court found the loan was actually made to an individual through the guise of a corporation and the lender knew all along that the loan proceeds were to be used for the personal purposes of the borrower.) 12 The Florida courts will not recognize the corporate usury defense when the trial court finds that a loan was in fact made to an individual and that the corporation was formed as a device to evade the usury laws. See Tel Service Co. v. General Capital Corp., 227 So.2d 667, 670 (Fla.1969). The mere fact, however, that a lender insists that a borrower form a corporation so that it can charge a higher rate of interest is not sufficient to establish that the loan is made to an individual. Id. 13 Thus, the great weight of authority does not allow the assertion of a corporate usury defense in loans to dummy corporations formed to charge a higher rate of interest than could be charged an individual when the loan is made for a business purpose. Assuming without deciding, as we have, that those are the facts in this case, we conclude that Louisiana would follow the weight of authority in interpreting its corporate usury exception. Recent amendments to the corporate usury exception by the Louisiana Legislature buttress this conclusion. As discussed above,7 the Legislature has extended the usury exception to include loans to partnerships in commendam, like the debtor in the instant case. The Legislature has also provided that individual guarantors of a corporate or a partnership debt cannot assert the usury defense. These two developments make it very unlikely that a Louisiana court would allow the assertion of the usury defense on the facts of this case. We hold the Chase loan to Corporate Hotel, Inc. was within the Louisiana corporate usury exception. 14 III. Is an Interest Rate of Four Points Above Prime "Fixed in Writing" as Required by Louisiana Law? 15 As quoted above, Louisiana law requires the interest rate on an obligation secured by a mortgage on immovable property to be "fixed in writing; testimonial proof of it is not admitted in any case." La.Rev.Stat.Ann. Tit. 9, § 3503 (West). Appellant claims that the interest due Chase, which was set at four percentage points above prime, was not fixed in writing. This Court does not agree with appellant's contention. The requirement that an interest rate be fixed in writing is akin to a parol evidence rule. See Katz v. Krauss Company Employees Pension Fund, 161 So.2d 389 (La.Ct.App.1964) (referring to the same language in La.Civ.Code Ann. art. 2924 (West) as a parol evidence rule). A rate of four points above prime is fixed in writing within the meaning of the Louisiana statutes and the Louisiana civil code. There is no danger of a swearing match over what the parties meant by four points above prime. Thus, holding that such an interest rate is not fixed in writing would not serve the purposes of the parol evidence rule. Furthermore, variable interest rates keyed to the prime rate are commonplace in business loans. This Court in the absence of any case authority or logical reason, will not torture the words of a statute to invalidate thousands or perhaps tens of thousands of loans. 16 IV. Did the Plan Improperly Place Insiders in a Separate Class That Received Nothing? 17 Appellant claims that the plan proposed by Chase and LNB and confirmed by the bankruptcy court arbitrarily and discriminatorily placed insiders with unsecured claims against the debtor in a separate class that received nothing under the plan. The other unsecured creditors in this case were trade creditors. The plan provided for full payment to unsecured creditors with claims of $200 or less and for payment of 40% of unsecured trade creditors' claims of greater than $200. As a general rule, the classification in a plan should not do substantial violence to any claimant's interest. The plan should not arbitrarily classify or discriminate against creditors. Anderson & Ziegler, Real Property Arrangements Under the Old and New Bankruptcy Acts, 25 Loy.L.Rev. 713, 717-18 (1979). See also In re Jaco Fabrics, Inc., 15 Collier Bankruptcy Cases 459 (M.D.Ga.1978) (denying confirmation and stating that the debtor cannot pick and choose who will be affected by a plan except by reasonable classifications). The fact that bankruptcy courts are courts of equity, however, allows exceptions to any strict rules of classification of claims. A bankruptcy court can permit discrimination when the facts of the case justify it. Comment, Classification of Claims in Debtor Proceedings, 49 Yale L.J. 881, 882-85 (1940). Here, the facts of the case compel this Court to affirm the bankruptcy court's confirmation of the plan that separately classified trade creditors and insiders. 18 First, there was no equity in the debtor's property for distribution to unsecured creditors. The insiders who took nothing under the plan would have taken nothing in liquidation. See In re Hamburger, 117 F.2d 932 (6th Cir. 1941) (holding that unsecured creditors have no place in Chapter XII proceedings unless equity remains after payment of secured claims). 19 Second, appellant is the only creditor who has objected to the plan's classification scheme.8 The great majority of insiders did not object to the plan's classification scheme. Similarly, in In re Palisades-on-the-Desplaines, 89 F.2d 214 (7th Cir. 1937) the court rejected the appellant's claim that the plan was inequitable and discriminatory in its classification scheme. The court relied on the finding of the court below that the plan was equitable and the fact that a large majority of creditors approved the plan. 20 Third, it is far from clear that the classification scheme in this case was arbitrary and discriminatory. Trade creditors with unsecured claims did receive better treatment than insiders with unsecured claims, but that fact alone does not establish arbitrary or discriminatory classification. The trade creditors advanced goods and services to the debtor in the ordinary course of business, frequently without any knowledge of the debtor's financially perilous condition and without any real opportunity to protect themselves. Furthermore, the proponents of the plan who were to operate the hotel under the plan may well have needed to maintain good relations with trade creditors upon whom they would have to rely to furnish additional goods and services to the hotel. In contrast, the insiders made loans to the debtor when they were in a position to know of the debtor's financial condition and the risks involved with those loans. Also, the insiders were not going to have any ongoing relationship with the hotel after confirmation of the plan. 21 The facts of this case compel this Court to reject appellant's contention that the bankruptcy court should not have confirmed the plan because of its classification scheme.9 22 V. Was the Bankruptcy Court's Evaluation of the Debtor's Hotel Clearly Erroneous? 23 The bankruptcy judge found that the hotel property was worth $10 million after hearing testimony from appraisers offered by Chase and from appraisers offered by the appellant. All the appraisers used the same method to calculate the value of the hotel. They determined what annual income the hotel could produce and what capitalization rate to use to convert that annual income figure into an estimate of value. Chase's appraisers testified that the hotel was worth $9.9 million, based on an estimated annual income of $1 million and a capitalization rate of 10.167 percent. Appellant's appraisers testified the hotel was worth $11 million, based on an estimate of $1.27 million annual income and a capitalization rate of 11.55 percent. Chase's appraisers were from the Baton Rouge area, but they had no experience in appraising highrise hotels like the Hilton. Appellant's appraisers were not from the Baton Route area, but they had experience in estimating the value of hotels like the Hilton. 24 We review the bankruptcy court's determination of the hotel value under the clearly erroneous standard. Rule 810, Rules of Bankruptcy Procedure. We cannot say that the bankruptcy judge was clearly erroneous in setting the value of the hotel at $10 million. The bankruptcy court picked a figure between the two figures offered by the opposing appraisers. Both estimates of the appraisers appear reasonable and are fairly close to each other. The Chase appraisers thought the hotel was less risky than did the appellant's appraisers. This is indicated by the lower capitalization rate used by the Chase appraisers. At the same time, however, the Chase appraisers thought the hotel would produce less income than the appellant's appraisers thought it would produce. Thus, the Chase appraisers took an entirely consistent approach to estimating the hotel's value. The fact that the Chase appraisers had no experience in appraising highrise hotels like the Hilton does not make the bankruptcy court's reliance on the Chase appraisers clearly erroneous. The Chase appraisers used the same method as did the appellant's appraisers, and the Chase appraisers were more familiar with local conditions. The bankruptcy court's determination that the debtor's hotel was worth $10 million is affirmed. 25 AFFIRMED. 1 Sally LeBlanc Brinkley, sister of Roger J. LeBlanc, has also appealed from the confirmation of the plan proposed by Chase and LNB. We dismiss her appeal on our own motion because she is not a creditor of the debtor. Ms. Brinkley filed a proof of claim in the bankruptcy proceedings asserting that she had advanced $2.25 million to the debtor and that the debtor owed her this amount as an unsecured claim. The bankruptcy disallowed Ms. Brinkley's claim, holding that she had purchased a 41% equity interest in the debtor, and that she had not made an unsecured loan to the debtor. Ms. Brinkley did not appeal the bankruptcy court's disallowance of her claim to the district court or to this Court. The bankruptcy court's disallowance, therefore, is a final judgment. Ms. Brinkley is not a creditor; she has no interest in this appeal 2 At oral argument before this Court, Chase's counsel candidly explained that Chase agreed to advance $300,000 under its proposed plan to cut its losses. Chase apparently believed that it would more than make up the $300,000 if its proposed plan was promptly confirmed and its subsidiary, instead of the trustees appointed by the bankruptcy court, could operate the hotel 3 La.Rev.Stat.Ann. tit. 9, § 3503 (West) provided as follows: Notwithstanding any other law to the contrary, particularly but not exclusively Revised Civil Code Article 2924, the amount of simple conventional interest on obligations bearing interest from date and secured in whole or in part, directly or indirectly, by a mortgage on immovable property, shall not exceed 10% per annum. The same must be fixed in writing; testimonial proof of it is not admitted in any case. 4 La.Rev.Stat.Ann. § 9: 3501 (West) provides that: Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted. 5 The parties concede that La.Rev.Stat.Ann. Tit. 12, § 703 (West 1969) controls this case. That section reads as follows: § 703. Rate of interest paid by corporations Notwithstanding any other provision of the laws of this state to the contrary, any domestic or foreign corporation organized for profit may agree to pay any rate of interest in excess of the maximum rate of conventional interest authorized by law, and as to any such agreement, the claim or defense of usury, or of the taking of interest in excess of the maximum rate of conventional interest, by such corporation, is prohibited. Added by Acts 1965, No. 15, § 1. Renumbered from R.S.1950, § 12:603 by Acts 1968, No. 105, § 3, eff. Jan. 1, 1969. The Louisiana Legislature has since amended La.Rev.Stat.Ann. Tit. 12, § 703 to broaden the corporate usury exception to apply to partnerships in commendam. The Legislature has also acted to overrule the decisions holding that individuals guarantors of a note made by a corporation can assert a usury defense to enforcement of that note. See Rosenthal & Rosenthal, Inc. v. Huma Townhouse Apartments, La.App., 238 So.2d 9 (1970); Meadowbrook National Bank v. Recile, 302 F.Supp. 62 (E.D.La.1969). La.Rev.Stat.Ann. Tit. 12, § 703 (West 1980) now reads as follows: § 703. Rate of interest paid by corporations Notwithstanding any other provisions of the law of this state to the contrary, any debtor that is a domestic corporation, a foreign corporation, a partnership in commendam formed pursuant to the laws of this state, a foreign limited partnership, or a partnership all of the partners of which are either corporations, foreign limited partnerships, partnerships in commendam or partnerships comprised of corporations, foreign limited partnerships or partnerships in commendam, may agree to pay interest in excess of the maximum rate of conventional interest authorized by the laws of this state, whether in connection with unsecured or secured indebtedness and whether the secured indebtedness is secured, in whole or in part, directly or indirectly, by a real estate mortgage or chattel mortgage on property in this state or is otherwise secured, and as to any such agreement such debtor corporation or partnership shall be prohibited from asserting a claim or defense of usury or of the taking of interest in excess of the maximum rate of conventional interest, and any person, partnership or corporation whatsoever signing as co-maker, guarantor or endorser for such debtor corporation or partnership shall also be prohibited from asserting any such claim or defense. The term foreign limited partnership as used hereinabove shall mean any partnership domiciled in a state of the United States other than Louisiana or the District of Columbia which shall have been formed and is existing pursuant to the limited partnership law or Uniform Limited Partnership Law of any such state, and such partnership need not qualify as a partnership in commendam under the laws of this state. Amended by Acts 1969, No. 31, § 1; Acts 1970, No. 437, § 1; Acts 1977, No. 210, § 1. 6 Appellant has moved this Court to certify the question whether Louisiana would apply the corporate usury exception in this case to the Louisiana Supreme Court. Finding no authority and having been presented with none for the inapplicability of the corporate usury exception given the facts of this case, we decline to delay resolution of this case further by certification 7 See note 5, supra 8 Sally LeBlanc Brinkley also objected to the plan's classification scheme, but she is not a creditor 9 Appellant also argues that the classification scheme in this case worked as an equitable subordination of insiders' claims outside the requirements of Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692 (5th Cir. 1977). Subordination deals with distribution of the debtor's assets. In this case, payments under the plan were made from moneys advanced by the proponents of the plan. There were no assets of the estate available for distribution to unsecured creditors. We view the doctrine of equitable subordination and its requirements as inapplicable here	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 9-7-2006 Simon v. Robinson Precedential or Non-Precedential: Non-Precedential Docket No. 06-1803 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Simon v. Robinson" (2006). 2006 Decisions. Paper 471. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/471 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. BPS-277 (AMENDED) NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 06-1803 ____________ CHARLES SIMON, Appellant v. KAROLYN D. ROBINSON, Coordinator; FEDERAL PRISON INDUSTRIES INC.; STEVE SCHWALB, Chief Operating Officer ________________________ On Appeal from the United States District Court For the District of New Jersey (D.C. Civil No. 98-cv-5707) District Judge: Honorable Faith S. Hochberg ________________________ Submitted for Possible Dismissal for Lack of Jurisdiction and Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6 July 20, 2006 BEFORE: RENDELL, AMBRO and ROTH, Circuit Judges. (Filed: September 7, 2006) ________________ OPINION OF THE COURT ________________ PER CURIAM This appeal represents just the latest of multiple stops in Appellant Charles Simon’s futile attempt to recover back pay allegedly owed to him under the Inmate Accident Compensation Act (IACA), 18 U.S.C. § 4126. The parties are by now all too familiar with the facts, and, thus, we only briefly recite them here. I. In 1987, Simon was serving a thirteen-year federal prison term. While employed in the prison’s kitchen, Simon slipped on a pool of water and allegedly aggravated a back injury. Since the early 1990s, Simon has filed numerous, and often identical, suits seeking monetary compensation under the IACA as well as other federal statutes and agency regulations.1 In the present case, Simon alleged that the IACA and 28 C.F.R. § 301.314 violate equal protection and are inconsistent with the Federal Employees Compensation Act, 5 U.S.C. § 8106. He also claimed that the failure of the United States to cover his medical expenses violates the Eighth Amendment. During the course of litigation, Simon filed a number of motions, including a request for sanctions under Rule 11 of the Federal Rules of Civil Procedure, a “Motion for Temporary Restraining Order Preliminary Injunction,” a request for a settlement or pre-trial conference, a motion for judgment under Federal Rule of Civil Procedure 12(c), and a motion to remove a stay. In an opinion entered February 24, 2006, the District 1 He has filed suit and lost in the United States District Courts for the District of Wisconsin, the District of Massachusetts, the Southern District of New York, the District of Columbia, and the District of New Jersey. See Simon v. Brennan, 940 F.2d 666 (7th Cir.); Simon v. United States Dept. of Just., No. 94-11212 (D. Mass.) aff’d 89 F.3d 823 (1st Cir. 1996); Simon v. Fed. Prison Indus., Inc., No. 03-10732 (D. Mass.); Simon v. Fed. Prison Indus., Inc., No. 96-4980 (S.D. N.Y.); Simon v. Fed. Prison Indus., Inc., No. 97-2348 (S.D. N.Y); Simon v. City of New York, 98-1489 (S.D. N.Y); Simon v. Fed. Prison Indus., Inc., No. 97-757 (D. D.C.). 2 Court denied the motions for sanctions and a pre-trial conference, and denied his request for a temporary restraining order (TRO). It granted the motion to remove the stay, and ordered the Defendants to respond. Simon filed an interlocutory appeal challenging the rulings. While his appeal was pending, the Defendants filed a motion for summary judgment, which the District Court granted on June 2, 2006. Simon has not filed an appeal from that order.2 II. We must first satisfy ourselves of our jurisdiction to entertain Simon’s appeals. We generally only have jurisdiction over final orders of the district court. See 28 U.S.C. § 1291. We examine each order appealed separately. A. Orders Denying Sanctions, Pre-trial Conference, and Judgment on the Pleadings An order denying a motion for sanctions, a conference request, or a 12(c) motion, is not an appealable interlocutory order. See Babcock & Wilcox Co. v. Foster Wheeler Corp., 457 F.2d 1307, 1308 (3d Cir. 1972) (sanctions); United States v. Brakke, 813 F.2d 912, 913 (8th Cir. 1987) (pre-trial conference); Enprotech Corp. v. Renda, 983 F.2d 17, 20 (3d Cir. 1993) (discovery related motions in general); Coleman by Lee v. Stanziani, 2 Simon has filed a motion for sanctions against U.S. Attorney Neil Gallagher. It is unclear from his pleadings on what basis Simon believes sanctions are warranted. As best as we can discern, it appears Simon believes Gallagher submitted misleading legal arguments to the District Court with respect to the merits of his case. Those factual and legal issues are not before this Court and Simon does not argue that Gallagher has committed any sanctionable acts on appeal. Accordingly, the motion is denied. Simon has also filed a motion to expedite the appeal. However, he uses the motion to again reargue the same issues he has been fighting for years. The motion is denied as moot. 3 735 F.2d 118, 120 (3d Cir. 1984) (12(c)). Our inability to review these orders has not changed even though the District Court has now entered a final judgment in the proceedings. In Adapt of Philadelphia v. Philadelphia Hous. Auth., 433 F.3d 353 (3d Cir. 2006), we limited the scope of our ruling in Lazy Oil Co. v. Witco Corp., 166 F.3d 581 (3d Cir. 2000), and held that a premature appeal from discovery orders and other similar obviously interlocutory orders does not ripen for the purposes of appellate review upon the entry of a final judgment. Adapt of Philadelphia, 433 F.3d at 361-63. The instant orders were obviously interlocutory. See id. Indeed, the orders here are similar to the order at issue in Lazorko v. Pennsylvania Hosp., 237 F.3d 242 (3d Cir. 2000). There, we held that the entry of judgment did not cure our lack of jurisdiction over a premature appeal from an order awarding sanctions but failing to include an amount, because the order would not have been final even when the court entered a judgment specifying the amount. Id. at 248. The present orders similarly could not become final judgments. Accordingly, we do not have jurisdiction to review the above orders. B. Order Denying “Motion for Temporary Restraining Order Preliminary Injunction” Simon filed a motion requesting two things: (1) that the District Court order a U.S. Marshall to serve the Defendants with a summons; and (2) that the Defendants be enjoined from denying Simon monthly payments. The District Court granted the first request and denied the second. Thus, we presume Simon appeals only the denial of the second request. 4 An appeal may not normally be taken “from an order granting or denying a temporary restraining order.” In re Arthur Treacher’s Franchise Litigation, 689 F.2d 1150, 1153 (3d Cir. 1982). We do, however, have jurisdiction over interlocutory appeals of orders “granting, continuing, modifying, refusing or dissolving injunctions . . . .” 28 U.S.C. § 1292(a)(1). We agree with the District Court that the motion was a request for an injunction, not a TRO. Although the denial of a preliminary injunction is normally appealable, we have repeatedly held that when the event sought to be enjoined has occurred, the order denying a preliminary injunction is moot. See, e.g., Scattergood v. Perelman, 945 F.2d 618, 621 (3d Cir. 1991). Simon’s desired injunction would have required the Defendants to remit monthly payments allegedly owed as compensation for his back injury. Now that the District Court has determined that Simon has no legal right to the payments and he has not appealed that ruling, the relief requested in the preliminary injunction can no longer be afforded. Thus, we now lack jurisdiction. For the foregoing reasons, the appeal will be dismissed for lack of jurisdiction. 5	{ "pile_set_name": "FreeLaw" }
586 P.2d 1335 (1978) Rory O. CHETELAT and Kathy Chetelat, Petitioners, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE, in the EIGHTEENTH JUDICIAL DISTRICT and the Honorable Marvin Foote, one of the Judges thereof, Respondents. No. 28206. Supreme Court of Colorado, En Banc. November 27, 1978. 1336 Michael R. Webster, Frank W. Heery, Denver, for petitioners. No appearance for respondents. PRINGLE, Justice. This is an original proceeding in which petitioners seek a writ of mandamus requiring the respondent District Court of Arapahoe County to enter an order granting petitioners' Motion for Service of Process upon one of the defendants, David Frye, by substitution of the Secretary of State of Colorado and to assume and exercise jurisdiction over the case. We issued a rule to show cause and now make the rule absolute. On November 23, 1977, petitioners filed a complaint against Kato & Company Realtors, Inc., a Colorado corporation, Marion and Ruby Miller and David Frye. The sheriff was unable, with reasonable diligence, to serve the complaint and summons upon the defendant David Frye. Shortly thereafter, petitioners filed with the district court a Motion for Substituted Service pursuant to the provisions of section 12-61-302(3), C.R.S. 1973.[1] Respondent denied petitioners' motion on the basis that, in the interim between the time when the claim for relief arose and the petitioners' motion, David Frye's real estate license had expired. Respondent reasoned that the Secretary of State, therefore, could no longer be deemed to be defendant Frye's agent under the Colorado statute. The issue before us is whether a real estate salesman, licensed at the time the claim for relief arose and upon whom service cannot now be made with reasonable diligence, may be deemed to have appointed the Secretary of State as his agent for service of process although he is no longer licensed in Colorado. We hold that defendant Frye may be so served. Section 12-61-302(1), C.R.S. 1973 (1976 Supp.), provides in part for payment from the Real Estate Recovery Fund of "a final judgment in any court of competent jurisdiction against any real estate broker or real estate salesman licensed under part 1 of this article on the grounds of negligence, fraud, willful misrepresentation, deceit, or conversion of trust funds arising directly out of any transaction which occurred when such broker or salesman was licensed and in which such broker and salesman performed acts for which a license is required under part 1 of this article and which transaction occurred on or after January 1, 1972, . . . ." (Emphasis added.) 1337 This provision plainly contemplates recovery in situations where the broker or salesman was licensed at the time the transaction occurred, but is no longer licensed when the judgment against him is obtained. There is no language in this subsection which indicates or implies that a salesman must be presently licensed in order to allow a judgment creditor to recover from the fund. Section 12-61-302(3), C.R.S. 1973, states that: "[A]ny real estate broker or real estate salesman who is licensed or renews his license under part 1 of this article on or after January 1, 1972, and upon whom personal service cannot be made with reasonable diligence shall be deemed to have appointed the secretary of state as his agent for service of process for purposes of actions filed against him pursuant to subsection (1) of this section." (Emphasis added.) We recognize that some ambiguity is created by the legislature's use of the past tense in subsection (1) and the present tense in subsection (3). We have held that where the meaning of a statute is uncertain, the legislative intent must be ascertained by looking at the statute in its entirety. Kirschwing v. O'Donnell, 120 Colo. 125, 207 P.2d 819 (1949). While the legislature did not expressly state its intent and purpose in enacting "The Real Estate Recovery Fund," section 12-61-301 et seq., C.R.S. 1973 (1976 Supp., 302(2) amended in 1977, Colo.Sess. 1977, ch. 178 at 774), it is clear on reading its language and provisions that the purposes of the statute are twofold: (1) to provide a monetary fund for satisfying judgments against real estate brokers and salesmen who have insufficient assets from which to pay such judgments; and (2) to provide an avenue for wronged parties to obtain judgment and satisfaction against real estate brokers and salesmen who have left the jurisdiction of the court or who cannot be located after diligent efforts for the purpose of service of process. The first purpose can be ascertained by studying the provisions of XX-XX-XXX(2) which allow recovery from the fund only after other methods of satisfaction have been exhausted; and the second purpose is ascertainable as the only logical basis for enacting XX-XX-XXX(3), one which, read in the context of the entire statute, makes recovery from the fund a meaningful possibility by permitting service where the broker or salesman cannot be located after a diligent search. After examining the statute in its entirety, we conclude that the legislature's intention in creating the Real Estate Recovery Fund was to protect innocent purchasers of real property from unscrupulous or financially unstable brokers or salesmen. The remedy furnished was the monetary recovery fund; and to make it more effective, the legislature further provided for substituted service of process if the broker or salesman could not be located. Indeed, the express terms of XX-XX-XXX(3) state that service upon the Secretary of State may be had "for purposes of actions filed against [a real estate salesman] pursuant to subsection (1) of this section." We have pointed out above that subsection (1) clearly provides for a recovery in cases where the salesman was licensed at the time the transaction occurred even though he may not be licensed when the action is brought. Thus, when XX-XX-XXX is examined in its entirety, it is evident that the legislature intended the substituted service provision to apply to all salesmen, not simply those who are licensed at the time the substituted service is sought. If the alternative construction were applied, the illogical result would be that a wronged party could not avail himself of the statute's remedy despite the fact that the salesman was licensed at the time the transaction took place and had already contributed to the recovery fund as required by section 12-61-301, C.R.S.1973. To argue that the legislature intended such consequences by using the present tense in XX-XX-XXX(3) would effectively destroy much of the access to the remedy provided by the statute because it would be impossible in many cases to commence an action for lack of service. *1338 The language of the statute compels the conclusion that the legislature intended to provide an avenue for a real estate purchaser to obtain a judgment and satisfaction from a real estate broker or salesman who was guilty of fraudulent or negligent conduct. The interpretation of the statute must necessarily advance this intent whenever possible. Construing XX-XX-XXX(3) to allow substituted service on the Secretary of State where a salesman cannot be found, whether that salesman is presently licensed or not, permits the wronged party to start the process of obtaining judgment and to eventually recover from the fund. Otherwise the very person who is supposed to benefit from the fund would find himself frustrated by a real estate salesman who simply surrendered his license and disappeared. This is not what the legislature intended in creating the Real Estate Recovery Fund. Rule made absolute. NOTES [1] "Any real estate broker or real estate salesman who is licensed or renews his license under part 1 of this article [Application for payment out of Real Estate Recovery Fund] on or after January 1, 1972, and upon whom personal service cannot be made with reasonable diligence shall be deemed to have appointed the secretary of state as his agent for service of process for purposes of actions filed against him pursuant to the provisions of subsection (1) of this section. Service of process pursuant to this subsection (3) shall be made as nearly as practicable in the manner prescribed by section 7-3-112, C.R.S. 1973, for service on corporations."	{ "pile_set_name": "FreeLaw" }
302 F.3d 909 Dennis BERKLA; Dennis Berkla, dba Digarts Software, Plaintiffs-Appellants,v.COREL CORPORATION, a Canadian corporation, Defendant-Appellee, andCorel Corporation (USA) Inc., Defendant.Dennis Berkla, dba Digarts Software, Plaintiff-Appellant,v.Corel Corporation, a Canadian corporation; Corel Corporation (USA) Inc., Defendants-Appellees.Dennis Berkla, dba Digarts Software, Plaintiff-Appellee,v.Corel Corporation, a Canadian corporation; Corel Corporation (USA) Inc., Defendants-Appellants. No. 00-15166. No. 00-15350. No. 00-15508. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 13, 2002. Filed May 9, 2002. Amended August 2, 2002. COPYRIGHT MATERIAL OMITTED James E. Houpt, Orrick, Herrington & Sutcliffe LLP, Sacramento, CA, for Dennis Berkla. Bradford C. Lewis and Patrick Eugene Premo, Fenwick & West LLP, Palo Alto, CA, for Corel Corporation and Corel Corporation (USA) Inc. Appeal from the United States District Court for the Eastern District of California; Gregory G. Hollows, Magistrate Judge, Presiding. D.C. No. CV 98-1159 GGH. Before: HUG and TASHIMA, Circuit Judges, and SEDWICK, District Judge.* Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge SEDWICK. ORDER The opinion filed on May 9, 2002, slip op. at 6739, and reported at 290 F.3d 983, is withdrawn and replaced by the amended opinion filed concurrently with this order. With the filing of the amended opinion, the panel has voted to deny the petition for panel rehearing. Judge Tashima votes to deny the petition for rehearing en banc and Judges Hug and Sedwick so recommend. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. See Fed. R.App. P. 35(f). The petition for panel rehearing and the petition for rehearing en banc are denied. OPINION TASHIMA, Circuit Judge. 1 Dennis Berkla designs electronic databases that allow users to create realistic images of natural settings on the computer screen. In 1997, Berkla contacted Corel Corporation ("Corel") and they initiated discussions about the possibility of Corel licensing Berkla's image file databases for inclusion in upcoming versions of Corel's software. After the parties executed a nondisclosure agreement ("NDA"), Berkla submitted to Corel some of his image file databases for evaluation. Corel eventually rejected Berkla's submission. Berkla later discovered that CorelDRAW 8, with its application program Photo Paint 8, contained image file databases similar to his own. Berkla brought this lawsuit against Corel, alleging copyright infringement, breach of contract, unfair business practices, and breach of confidence. After trial, the jury awarded Berkla compensatory and punitive damages.1 The district court disallowed the jury's award of punitive damages and denied both parties' motions for attorney's fees and costs. We have jurisdiction over these multiple appeals from the amended judgment and two post-judgment orders pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part. I. BACKGROUND A. Factual Background 2 Berkla is a visual artist from Chico, California, who, in 1994, started a small company, DigArts Software ("DigArts"), to design computer-based illustration tools. Berkla created image file databases, or nozzles, that contained images of plants and natural objects that were sprayed like paint out of an image hose tool to design realistic illustrations of trees and foliage. He released a variety of nozzle products under the names Garden Hose and Tubular Text. These nozzle products were not, by themselves, functional, but rather were designed to be used in connection with an image hose tool to create natural looking gardens and landscapes. 3 Fractal Design Corporation ("Fractal") is a computer software company that by 1994 had developed an image hose tool called Painter that enabled users to create graphics by spraying nozzle-based images. In 1995 and 1996, Berkla entered into two separate licensing agreements with Fractal that granted Fractal the right to distribute Berkla's Garden Hose 1.0 and Garden Hose 2.0 as stand alone CD-ROM add-ons to Fractal's Painter program. These agreements were concluded after Berkla threatened Fractal with litigation for including his protected ideas and designs in Fractal's Painter product in violation of the parties' NDA. Steve Guttman, Fractal's Vice President of Marketing, stated that the Garden Hose product was Fractal's best-selling add-on ever. 4 In 1996, Corel released Photo Paint 7, a graphics-design program within the CorelDRAW suite, which contained an image hose tool similar to Fractal's Painter. Photo Paint 7 was comprised of approximately ten nozzles that included images of foliage. On March 26, 1997, Berkla, who had initiated a business relationship with Corel as an independent "solutions partner,"2 sent an email to Doug Chomyn, Corel's product manager for Photo Paint: 5 I produce small, successful, add-on products for Fractal Design Corp. The products support Painter's Image Hose technology and go by the name Garden Hose. I'd like to support PhotoPaint's Image Sprayer as well. Before I can do that, however, I need to know what level of developer support Corel offers small independents such a[sic] DigArts? If you have any questions or wish to talk with me, please feel free to contact me.... If you're unfamiliar with the Garden Hose, you can view samples at: http://www.dcs-chico.com/digarts/. 6 Chomyn replied to Berkla's email on April 2, 1997: Thanks for the message, but it is not clear as to the nature of your "Add-on" products, or how they would relate to our Image Sprayer Tool; our Image Sprayer Tool implementation and capability is quite different from that of the Image Hose tool in Fractal Design's Painter. Could you give me some idea as to what you are looking for with respect to developer support? We do not "offer" any developer support per se, although we do sometimes contract work to out-of-house developers, and sometimes purchase the rights to third-party products. 7 Please send/transmit more information ... 8 Berkla responded to Chomyn with several technical questions about Photo Paint. He then stated: "As for developer support in a financial sense, I'm not asking for money. I'm happy to take a look at manufacturing as a third party developer though I'd likely need some tangible form of marketing support. If your [sic] interested in purchasing rights, we can talk about that too." On April 3, Chomyn emailed Berkla the answers to his questions. He concluded by telling Berkla "[i]f you're selling files to be used as image lists ("nozzles"), I'd like to evaluate what you have to offer. If you'd be willing to send me copies for evaluation purposes, I'd happily oblige you with an evaluation copy of Photo-Paint 7 Plus." Berkla responded the next day that Chomyn had answered most of his questions and encouraged Chomyn to visit Berkla's website. 9 Chomyn responded on April 7: "If you're interested in selling `nozzle' files to Corel, it would be good to get a graphical catalog and/or copies of what you have to offer...." Berkla emailed Chomyn two days later that he would send him a CD with the relevant nozzle files: "If you're still interested after working with the files, we can discuss licensing terms." After Chomyn requested that Berkla send the nozzle files in a "universal format," Berkla sent the following email on April 11: 10 I'd like to send you some of the new stuff since that's what the product will contain. However, I'm not comfortable doing that without an NDA. 11 If you have a problem with NDA's [sic], I can simply send you the shrunk-wrap, Garden Hose CD since that grants you and [sic] end-user license. Unfortunately, it's a smaller, older product than the one I have in mind and doesn't contain the new files, which comprise over 35% of the content. 12 You can access some new, demo (smaller) nozzles via my web site. The end-user license will adequately cover my proprietary/intellectual property rights. 13 Chomyn replied two days later: "I'd be happy to sign your NDA on behalf of Corel. This is quite common; I'm often in the position of evaluating new stuff under these circumstances." 14 Chomyn executed the NDA and faxed it to Berkla on April 14. The NDA contained the following nondisclosure provision: 15 Recipient agrees that neither Recipient nor any of its employees or agents shall disclose or use (except for the purpose of providing the services or products that Recipient has agreed with the Company to provide or other purposes expressly agreed to in writing between the Company and Recipient) any Confidential Information. Recipient shall not communicate or disclose Confidential Information to any third party. Internal access shall be limited on a "need to know" basis for the purpose of providing the services or products that the Recipient has agreed with the Company that it will provide. Recipient shall neither use Confidential Information nor circulate it within its own organization except for the foregoing purposes. Recipient will maintain a list of Recipient personnel permitted access to the Confidential Information and will, upon request, provide the Company with a copy of the list.3 16 The NDA also provided that "[i]n any action relating to this Agreement, the non-prevailing party, shall pay the expenses (including without limitation reasonable attorneys' fees) of the prevailing party." 17 In mid-April 1997, after the NDA was signed, Berkla submitted a beta CD of his Garden Hose images to Chomyn for evaluation. Berkla's original CD, which bore the inscription "DigArts Image Lists (for review) © Dennis Berkla," was copied by Corel. Twelve Corel employees had access to the CD or may have viewed some images contained therein. Katie Gray, Corel's Digital Content Manager at the time, gave Berkla's CD to Dan Dudley, the head of Corel's Content Development Group. Gray testified to having the following conversation with Dudley: "I said to Dan, these images were very good quality. And ... we are interested in licensing them perhaps. Can you guys meet this quality and do us—make us some more of these?" Soon thereafter, Berkla was informed by Gray that Corel would not license Berkla's image file databases. Corel was unable to locate Berkla's original beta CD and therefore never returned it to him. 18 In October 1997, Corel sent 19 of its beta testers4 a beta CD of its pre-release version of CorelDRAW 8/Photo Paint 8, which contained exact duplicates of 91 of Berkla's Garden Hose nozzles. The duplicates were not identified as Berkla's product. Berkla began to suspect that Corel had copied his images during a conversation with David Huss, a Corel tester who informed Berkla that Corel had designed eucalyptus files that would paint remarkably realistic trees. Berkla, suspicious that the images Huss referred to were his own, forwarded Huss a copy of his eucalyptus files. Huss subsequently informed Chomyn that he thought some of the images on the beta version of CorelDRAW 8 were not Corel product. Corel removed all exact duplicates of Berkla's image files before the final version of CorelDRAW 8 was released in November 1997. 19 On November 7, 1997, Berkla faxed a letter to Michael Cowpland, President of Corel, in which he expressed concern about the use of his ideas and techniques in developing Corel-DRAW 8. Given the existence of the NDA and the absence of any licensing agreement, Berkla informed Cowpland that "any use of my proprietary ideas, designs, or techniques is inappropriate." Berkla, however, left open the possibility of further negotiations: "Though I remain ready and willing to negotiate a licensing agreement for my product, that agreement must be reached prior to the commercial release of your competing product." 20 Cindy McGann, Corel's corporate counsel, responded to Berkla by letter, asserting that "[w]hile Corel's Image List files include files that represent elements from nature which are similar in content (only) to your files, we cannot agree that in the creation of our files, we used your ideas and/or techniques." McGann went on to state: "Though the imaginative use of Corel-supplied Image List files with our Image Sprayer tool can result in the creation of landscape or still-life style imagery (similar to that which could be created through the use of your files), this similarity in end result is due to the inherent nature of the technology that Corel used to develop our Image List files. It is not due to any misappropriation by Corel of your ideas, designs or techniques." B. Procedural Background 21 Berkla commenced this action on June 19, 1998, alleging claims for copyright infringement, breach of the NDA, unfair competition, and breach of confidence. He did not specifically request punitive damages. 22 On June 11, 1999, Berkla offered to settle his claims against Corel for $1.6 million; Corel responded with a counteroffer of $200,000. After a court-facilitated settlement conference, Corel increased its offer to $400,000. Berkla declined this offer because Corel refused to cast it as an offer of judgment under Federal Rule of Civil Procedure 68.5 23 On September 9, 1999, the district court granted summary judgment in Corel's favor on Berkla's copyright claims, with the exception of the claim pertaining to Corel's dissemination of Berkla's image files to Corel beta testers. With respect to Berkla's state law claims, the district court denied Corel's summary judgment motion to the extent that the claims predated the public dissemination of Berkla's image files in version 1.5 of Garden Hose in 1997. 24 After trial commenced, the district court denied Berkla's request to include punitive damages in the pretrial order, ruling that because Berkla's breach of confidence claim was substantively identical to his breach of contract claim, punitive damages were unavailable.6 The district court, however, permitted punitive damages to be presented to the jury on an advisory basis in order to avoid the need for a new, separate trial, if its decision were reversed on appeal. 25 The jury found that: (1) Corel breached the NDA with Berkla; (2) Corel breached confidence with Berkla; and (3) Corel acted with fraud, oppression, or malice with respect to the breach of confidence claim.7 During the damages phase, the jury awarded Berkla $23,500 in compensatory damages for the improper use of confidential information and $235,000 in punitive damages. Berkla was also awarded one dollar in nominal damages for "other breaches" of the NDA. Judgment was entered on the verdict after striking the award of punitive damages. 26 Berkla and Corel each filed motions for attorney's fees, as well as their respective costs bills. The district court denied both sides' motions for attorney's fees and costs. II. STANDARD OF REVIEW 27 The availability of punitive damages is a question of law that we review de novo. EEOC v. Wal-Mart Stores, Inc., 156 F.3d 989, 992 (9th Cir.1998). The district court's decision to deny attorney's fees is reviewed for an abuse of discretion. Shaw v. City of Sacramento, 250 F.3d 1289, 1293-94 (9th Cir.2001). Supporting findings of fact are reviewed for clear error. Roy Allan Slurry Seal v. Laborers Int'l Union Local Union 1184, 241 F.3d 1142, 1145 (9th Cir.2001). Whether the district court applied the correct legal standard is reviewed de novo. Siegel v. Fed. Home Loan Mortgage Corp., 143 F.3d 525, 528 (9th Cir.1998). A district court's denial of costs is also reviewed for an abuse of discretion. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 968 (9th Cir.1999). III. ANALYSIS 28 Berkla contends that the district court erred in disallowing the award of punitive damages on his breach of confidence claim and in denying his attorney's fees and costs. In its cross-appeal, Corel contends that it was error for the district court to deny its request for attorney's fees. A. Punitive Damages 29 California law provides for punitive damages in specified actions:8 30 In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. 31 Cal. Civ.Code § 3294(a). Thus, punitive damages, which are designed to punish and deter wrongful conduct, are not available in breach of contract actions. Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 28 Cal.Rptr.2d 475, 481, 869 P.2d 454 (1994). 32 California courts specifically recognize the tort of breach of confidence. Faris v. Enberg, 97 Cal.App.3d 309, 158 Cal. Rptr. 704, 711 (1979). "This tort is based upon the concept of an implied obligation or contract between the parties that confidential information will not be disclosed." Enter. Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1226-27 (9th Cir.1997) (construing California law); see also Tele-Count Engr's, Inc. v. Pac. Tel. & Tel. Co., 168 Cal.App.3d 455, 214 Cal.Rptr. 276, 279 (1985). "To prevail on a claim for breach of confidence under California law, a plaintiff must demonstrate that: (1) the plaintiff conveyed `confidential and novel information' to the defendant; (2) the defendant had knowledge that the information was being disclosed in confidence; (3) there was an understanding between the defendant and the plaintiff that the confidence be maintained; and (4) there was a disclosure or use in violation of the understanding." Enter. Research Group, 122 F.3d at 1227. 33 In his breach of confidence claim, Berkla alleged that Corel had violated the parties' understanding to maintain in confidence the contents of Berkla's beta CD by "misappropriating the images and nozzles on the CD, disclosing the contents of the CD to individuals who did not have a bona fide reason for access, and otherwise unlawfully disclosing and utilizing the contents of the CD." In finding Corel liable for breach of confidence, the jury found that Corel acted "with fraud, oppression or malice" and awarded punitive damages of $235,000. Nonetheless, in accordance with its earlier ruling, the district court struck the punitive damages award, holding that Berkla's claim for breach of confidence was "indistinguishable" from his breach of contract claim and therefore provided no basis for a recovery of punitive damages. The district court rested its denial of punitive damages on California case law denying tort remedies on claims that are intimately related to underlying contracts. 34 The issue tendered for decision is whether, under California law, breach of confidence is a true tort that affords traditional tort remedies or is instead akin to a contract action that precludes punitive damages. The district court's position finds support in California cases that have taken an increasingly narrow view of a plaintiff's right to recover tort damages for a claim that arises from the breach of an underlying contract. See Erlich v. Menezes, 21 Cal.4th 543, 87 Cal.Rptr.2d 886, 891, 981 P.2d 978 (1999); Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 44 Cal.Rptr.2d 420, 430-31, 900 P.2d 669 (1995); Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 217-18, 765 P.2d 373 (1988). There is also support, however, for Berkla's position that the tort of breach of confidence creates an independent obligation that is separate and distinct from any contractual duty and therefore permits the recovery of punitive damages. See Fink v. Goodson-Todman Enters., 9 Cal.App.3d 996, 88 Cal. Rptr. 679, 690 (1970). 35 We are not required, however, definitively to resolve the question of whether punitive damages are theoretically available when a party has proven its breach of confidence claim. Berkla would nevertheless be precluded from collecting them here. That is so because the tort of breach of confidence is grounded on an implied-in-law or quasi-contractual theory, see Fink, 88 Cal.Rptr. at 690, that is coterminous with his claim for express breach of the NDA claim. California courts have made clear that these two causes of action are mutually exclusive: "There cannot be a valid, express contract and an implied contract, each embracing the same subject matter, existing at the same time." Wal-Noon Corp. v. Hill, 45 Cal.App.3d 605, 119 Cal.Rptr. 646, 650 (1975); accord Hedging Concepts, Inc. v. First Alliance Mortgage Co., 41 Cal.App.4th 1410, 49 Cal.Rptr.2d 191, 197 (1996). As Berkla recovered on his NDA claim, tort remedies under his breach of confidence claim are therefore unavailable.9 Accordingly, we conclude that the district court did not err in its decision to strike punitive damages.10 36 B. Berkla's Motion for Attorney's Fees and Costs 1. Attorney's Fees 37 After trial, Berkla moved for attorney's fees in the amount of $526,477 under the attorney's fees provision of the NDA. The district court denied Berkla's request for attorney's fees, finding that he was not the "prevailing party" on either his contract or tort claims and therefore was not entitled to attorney's fees under state law.11 Berkla contends that the district court applied the wrong statute in rejecting his request. 38 California permits parties to allocate attorney's fees by contract. See Cal.Civ. Proc.Code § 1021 ("Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties...."). This ability to contract out of the American rule, under which each party pays its own attorney's fees, is circumscribed, however, by California Civil Code § 1717, which was "enacted to limit the ability of a dominant contracting party to provide for a right to attorney's fees on only one side of an agreement." Sears v. Baccaglio, 60 Cal.App.4th 1136, 70 Cal.Rptr.2d 769, 774-75 (1998). That statute provides: 39 In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. 40 Cal. Civ.Code § 1717(a). Section 1717 further provides that the court "shall determine who is the party prevailing on the contract." Id. at § 1717(b)(1). "[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section." Id. 41 California also allows attorney's fees authorized by contract, statute, or law to be recovered as costs. Cal.Civ.Proc.Code § 1033.5(a)(10). Attorney's fees awarded under § 1717 are specifically included under the statutory definition of costs. Id. at § 1033.5(c)(5). The statute relating to the recovery of costs provides the following definition of prevailing party for the purposes of determining costs awards: 42 "Prevailing party" includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the "prevailing party" shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. 43 Cal.Civ.Proc. Code § 1032(a)(4). 44 With respect to Berkla's contract claim, the district court found that Berkla was not a prevailing party entitled to attorney's fees under § 1717, emphasizing that "Berkla's net recovery was less than 3% of what he affirmatively sought before the jury at trial ...." The district court similarly found that Berkla was not a prevailing party on his tort claim under § 1032, despite the fact that Berkla won a net monetary recovery. The district court concluded that § 1032, like § 1717, conferred discretion to award fees and that "[i]t would be perverse to find that California law permits differing attorneys' fees recovery standards under a contractual provision simply because an underlying, substantively identical claim might be denominated in contract or tort." 45 Berkla contends that the district court erred in analyzing his claim under § 1717 and that he should have been awarded fees under the mandatory provision of § 1032. We reject this argument. As we have already determined that Berkla is precluded from recovering in tort, attorney's fees would be available, if at all, only on the basis of his breach of contract claim. Section 1717 applies to Berkla's request for attorney's fees on his contract claim. See Santisas v. Goodin, 17 Cal.4th 599, 71 Cal.Rptr.2d 830, 840, 951 P.2d 399 (1998). 46 The standard for evaluating prevailing party status under § 1717 was set forth in Hsu v. Abbara, 9 Cal.4th 863, 39 Cal. Rptr.2d 824, 891 P.2d 804 (1995). In that case, the California Supreme Court held that: 47 in deciding whether there is a "party prevailing on the contract," the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by "a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions." 48 Id. at 833, 891 P.2d 804 (citation omitted); accord Scott Co. v. Blount, Inc., 20 Cal.4th 1103, 86 Cal.Rptr.2d 614, 618, 979 P.2d 974 (1999). While "a plaintiff who obtains all relief requested on the only contract claim in the action must be regarded as the party prevailing on the contract for purposes of attorney fees under section 1717," Hsu, 39 Cal.Rptr.2d at 832, 891 P.2d 804, a court could also determine that a party is not prevailing when it "receives only a part of the relief sought," id. (internal quotation and citation omitted). The court emphasized that "in determining litigation success, courts should respect substance rather than form, and to this extent should be guided by `equitable considerations.'" Id. at 833, 891 P.2d 804. 49 Under this standard, we conclude that the district court did not abuse its discretion in denying Berkla's attorney's fees. Berkla recovered only $23,502 in compensatory damages for breach of the NDA, although he sought more than $1.2 million. Although Berkla suggests that he obtained an "unqualified" win on his contract claim, it is clear from Hsu that a court is entitled to look at more than the issue of liability in determining prevailing party status, and to evaluate litigation success in light of the party's overall demands and objectives. In this case, these demands and objectives clearly involved a substantial financial payoff for Berkla. The jury, however, completely rejected Berkla's contractual damages theory, instead awarding damages consistent with the estimates offered by Corel's expert. Given the equitable considerations that animate prevailing party status under § 1717 and the deference owed to the district court, we conclude that the district court did not abuse its discretion in denying Berkla's attorney's fees request. 2. Costs 50 Despite finding that Berkla was the prevailing party under federal standards for determining eligibility for costs,12 the district court denied Berkla's motion for costs on two grounds: (1) Berkla did not win an amount exceeding $75,000, the statutory minimum for diversity jurisdiction; and (2) Berkla unnecessarily extended the litigation by rejecting Corel's offers to settle the case for an amount far in excess of what Berkla eventually recovered. 51 Federal Rule of Civil Procedure 54(d)(1) provides generally that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Although the rule creates a presumption in favor of awarding costs to a prevailing party, it also vests discretion in the district court to refuse to do so. Ass'n of Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir.2000) (en banc). In exercising that discretion, a district court must "specify reasons" for its refusal to award costs. Id. Berkla argues that both of the district court's articulated reasons are insufficient to justify deviation from the presumptive award of costs to prevailing parties. 52 We agree with Berkla that the district court erred in resting its denial of costs on his failure to recover the jurisdictional amount under the diversity statute. Under 28 U.S.C. § 1332(b), if a plaintiff recovers less than $75,000, "the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff." The district court relied on Perlman v. Zell, 185 F.3d 850 (7th Cir.1999), to support its conclusion that it had discretion under § 1332(b) to deny costs with respect to Berkla's state law claims. 53 Because subject matter jurisdiction here is not founded on diversity of citizenship, but on federal question and supplemental jurisdiction,13 Perlman simply does not apply. In Perlman, although the plaintiffs pleaded a federal claim (RICO), that claim was dismissed on the merits. See 185 F.3d at 859 ("So Perlman is a loser on the question whether this was a federal case."). Here, Berkla partially prevailed on his federal claim. 54 The court specifically stated in Perlman that § 1332(b) stands for the general principle that "if the outcome shows that the case did not belong in federal court, then costs may be denied...." Id. at 859. But here, there is no question that this case did belong in federal court. Berkla's copyright claims clearly came under the court's federal question jurisdiction. Although Berkla's most significant copyright claims were dismissed on summary judgment, he was victorious on his pre-release claim, ultimately winning a stipulated judgment of $9,100. Although this amount may have been minimal in comparison to the large sum Berkla was seeking, nonetheless, it did not eliminate the basis for federal jurisdiction, making the district court's application of the § 1332(b) standard inappropriate. Moreover, Berkla was compelled to bring all of his claims in federal court, short of splitting his claims, because federal court jurisdiction over copyright claims is "exclusive of the courts of the states." 28 U.S.C. § 1338(a) (emphasis added). 55 We further conclude that the district court erred in denying Berkla's costs on the ground that he failed to accept Corel's $400,000 settlement offer. The issue is whether it was a proper exercise of the district court's discretion to deny costs, even though Corel's offer did not comply with Federal Rule of Civil Procedure 68. Rule 68 provides: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. 56 When a Rule 68 offer of judgment is made and rejected, and "the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Fed. R. Civ. Proc. 68. Berkla contends that he cannot be deprived of his costs without having received a Rule 68 offer of judgment. We agree. 57 Although no Ninth Circuit case speaks directly to this issue, other circuits have adopted Berkla's position in the analogous situation of determining attorney's fees awards after rejected settlement offers. See Clark v. Sims, 28 F.3d 420, 424 (4th Cir.1994) ("Because the district court limited appellants' recovery of attorney's fees based on a settlement offer which failed to meet the requirements of Rule 68, its decision must be vacated and this case remanded so that the court may reconsider the amount properly awardable."); Ortiz v. Regan, 980 F.2d 138, 141 (2d Cir.1992) (finding that, where the defendant could have made a formal offer of judgment pursuant to Rule 68, but chose not to use this procedure, the plaintiff's rejection of a settlement offer should not operate to reduce an otherwise appropriate fee award); Cooper v. Utah, 894 F.2d 1169, 1172 (10th Cir.1990) (reversing district court's reduction of attorney's fees based on settlement negotiations where the defendants had not "availed themselves of an offer of judgment pursuant to Rule 68"). Corel cites Meister v. Regents of the Univ., 67 Cal. App.4th 437, 78 Cal.Rptr.2d 913, 923 (1998), which rejects these cases in determining that California law does not prevent "a trial court from considering a non-statutory settlement offer in determining the amount of a reasonable attorney's fee award." Meister, however, is a state law case and does not control the issue here. We agree with the reasoning of our sister circuits that, absent a Rule 68 offer of judgment, a plaintiff's failure to accept a settlement offer that turns out to be less than the amount recovered at trial is not a legitimate basis for denying an award of costs. To hold otherwise would render Rule 68 largely meaningless. It was therefore error for the district court to deny Berkla costs based on Corel's non-Rule 68 settlement offer. Accordingly, on remand, the district court should award to Berkla his properly taxable costs. C. Corel's Motion for Attorney's Fees 58 On its cross-appeal, Corel contends that the district court abused its discretion in denying its request for attorney's fees on Berkla's copyright claim. The Copyright Act provides: 59 In any civil action under [the Copyright Act], the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs. 60 17 U.S.C. § 505. 61 The Supreme Court has adopted the "evenhanded" approach to the award of attorney's fees in copyright cases. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) ("Prevailing plaintiffs and prevailing defendants are to be treated alike, but attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion."). In exercising this discretion, the Court noted that courts may be guided by the factors articulated by the Third Circuit in Lieb v. Topstone Indus., 788 F.2d 151, 156 (3d Cir.1986), which include "frivolousness, motivation, objective unreasonableness ... and the need in particular circumstances to advance considerations of compensation and deterrence." Fogerty, 510 U.S. at 534 n. 19, 114 S.Ct. 1023 (quoting Lieb). This Court has held that "while courts may take the Lieb factors into account, they are `nonexclusive.' Even so, courts may not rely on the Lieb factors if they are not `faithful to the purposes of the Copyright Act.' Faithfulness to the purposes of the Copyright Act is, therefore, the pivotal criterion." Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558 (9th Cir. 1996). 62 Corel argues that its successful defense of Berkla's infringement claims on the ground that Berkla's images contained no protectable expression furthered a primary objective of the Copyright Act — to "promote the Progress of Science and useful Arts" by "encourag[ing] others to build freely upon the ideas and information conveyed by a work." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). It contends that its defense of this suit fostered the important concept of distinguishing unprotectable ideas from protectable expression. 63 We find this argument unpersuasive and agree with the district court that Corel's behavior in this case did not advance the purposes of the Copyright Act. In denying fees, the district court found that Corel's use of Berkla's nozzles to model its own Photo Paint images, while not technically violating the virtual identity standard of copyright infringement, nevertheless constituted a highly questionable business practice. The district court emphasized: 64 Most important ... is the fact that the jury found Corel had acted improperly in utilizing Berkla's databases for modeling of its own. While the jury's finding of maliciousness or oppressiveness or fraud on the part of Corel in breaching Berkla's confidence could be questioned, Corel has chosen not to contest these findings in post-trial motions. The jury's unaltered liability verdict speaks loudly in proclaiming that Corel should not be rewarded for prevailing on a finding regarding copyright standard of proof in light of the found misdeeds on related issues. 65 It would be inconsistent with the Copyright Act's purposes to endorse Corel's improper appropriation of Berkla's product by awarding fees.14 66 Moreover, the decision to award attorney's fees to prevailing defendants remains within the court's sound discretion. Fogerty, 510 U.S. at 534, 114 S.Ct. 1023. An evaluation of the Lieb factors demonstrates that there is no reason to conclude that the district court abused its discretion. With respect to the "frivolousness" factor, Corel argues that Berkla's position was frivolous since he never presented any evidence that Corel had access to his Tubular Text images. Although this might be true, the Tubular Text databases were only one aspect of Berkla's copyright claims and there is no reason to conclude that the district court abused its discretion in ruling that Berkla's infringement claims regarding his Garden Hose images were nonfrivolous. Further, an analysis of the district court's decision clearly shows that frivolousness was appropriately treated as one among many considerations in denying fees. 67 The Lieb court also mentioned "objective unreasonableness" as a factor to consider in awarding fees. Corel contends that Berkla was objectively unreasonable in pursuing his copyright claim for several reasons: (1) Corel offered Berkla $400,000 to resolve the claims four months prior to trial; (2) there was no evidence that Corel had access to Berkla's Tubular Text images; (3) the law of virtual identity was well-settled; and (4) Corel stipulated to liability with respect to the release of images to beta testers. These reasons, however, do not justify overturning the district court. The rejected settlement offer related to the state law issues, as well as the copyright claim, and therefore should not be dispositive of the fees question. Moreover, Berkla presented a valid copyright claim related to his Garden Hose images. He lost on summary judgment, but that does not mean that his claim was objectively unreasonable—in fact, the district court conceded that Berkla's work contained protectable expression and that, although not virtually identical, Corel's Photo Paint images were substantially similar to Berkla's. Finally, the fact that Berkla persisted in his claims despite Corel's liability stipulation on the copyright claim does not show objective unreasonableness, given that Berkla was pursuing state law claims as well and Corel did not concede liability or damages on the pre-release claim until fairly late in the proceedings.15 68 Finally, Corel argues that fees are appropriate punishment for Berkla under the Lieb factors related to "motivation" and "deterrence," suggesting that Berkla, who had a history of litigiousness, was motivated by a desire to extract a licensing agreement from Corel. The sanction of attorney's fees, Corel contends, would deter Berkla's "irresponsible behavior" in the future. The district court did not, however, abuse its discretion in finding that Berkla's prior entanglement with Fractal did not warrant attorney's fees for Corel in this case. As the district court noted, Berkla "did not initiate any action against Corel until he was told that Corel had utilized his databases in its product." Thus, Corel was not a blameless victim in this lawsuit—its admittedly illegal behavior prompted Berkla's complaint. Corel's attempt to paint Berkla as a litigious schemer who "set up" Corel obscures Corel's underlying wrongful conduct and is insufficient to warrant overturning the district court's denial of fees. We conclude that the district court did not abuse its discretion in denying Corel attorney's fees on the copyright claim. IV. CONCLUSION 69 For the foregoing reasons, in No. 00-15166, the judgment is affirmed. In No. 00-15508, the post-judgment order denying attorney's fees is affirmed. In No. 00-15350, the post-judgment order is affirmed as to attorney's fees and reversed as to costs and remanded. Each party shall bear his or its own costs on appeal. 70 AFFIRMED, except as to costs, and REMANDED. Notes: * The Honorable John W. Sedwick, United States District Judge for the District of Alaska, sitting by designation 1 As noted in Part I.B, below, the jury's award of punitive damages was "advisory" in character because the issue actually had been withdrawn from consideration 2 Berkla had been approved for "premier status" in Corel Solutions Partners. According to the district court, "[t]his arrangement gave Berkla some non-public benefits with Corel products as well as enhanced visibility to Corel customers of certain Berkla products or applications. Corel hoped to receive in turn some third-party technical input on Corel products." 3 The NDA did not specifically list what information was deemed confidential. Instead, it provided the following definition: Included within the meaning of Confidential Information are matters of a technical nature (such as inventions, know-how, formulas, computer programs, software, documentation, secret processes or machines, and research projects), matters of a business nature (such as information about costs, profits, markets, sales, customers, potential customers, suppliers and employees), plans for further product developments, and any other information of a similar nature not available to the public. Information shall not be deemed to be "Confidential Information" to the extent that it was (a) in the public domain at the time of the Company's communication thereof to Recipient or subsequently enters the public domain without breach of any confidentiality obligation to the Company, or (b) already in Recipient's possession free of any obligation of confidence at the time of the Company's communication thereof to Recipient. 4 Beta testers assist software manufacturers in working out glitches or suggesting improvements in the software prior to its release to the public 5 Corel renewed its $400,000 offer in October 1999. Berkla responded with a counteroffer of $900,000, which was rejected 6 During trial, Berkla voluntarily abandoned his unfair competition claim 7 Corel had also stipulated to copyright infringement liability with respect to the 91 image files sent to its beta testers and to an award of $9,100 in statutory damages on that claim 8 The parties agree that the punitive damages claim is analyzed according to California lawBass v. First Pac. Networks, Inc., 219 F.3d 1052, 1055 n. 2 (9th Cir.2000). 9 Although the facts here do not permit Berkla to pursue remedies under both the breach of contract and the breach of confidence claims, this is not to say that a party will necessarily plead itself out of court if, in the face of a breach of an express NDA, it elects also to assert a breach of confidence claim arising out of a common nucleus of fact 10 Corel also argues that Berkla is precluded from recovering punitive damages on his tort claim under the doctrine of judicial estoppel and on due process grounds. Because we have concluded that the district court correctly denied punitive damages on state law grounds, we need not address these issues 11 The parties agree that state law governs Berkla's attorney's fees claimSee Fobian v. West. Farm Credit Bank (In re Fobian), 951 F.2d 1149, 1153 (9th Cir.1991). 12 The district court held, and the parties do not dispute, that federal law governs the award of costsSee Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1167 (9th Cir.1995). 13 Although the second amended complaint invokes diversity jurisdiction, as well as federal question and supplemental jurisdiction, because the district court unquestionably had federal question and supplemental jurisdiction, the allegation invoking diversity jurisdiction was surplusage 14 Corel contends that the district court erred in considering the jury's small liability verdict against Corel as the most important factor in its decision to deny fees since the liability verdict related to state law claims that were completely independent of the copyright claims. Corel also argues that district court erred in considering the jury's finding that Corel's conduct was malicious and oppressive since this finding had no legal effect in light of the district court's decision to strike punitive damages. Corel's arguments here fail. The district court was allowed to assess Corel's overall conduct, taking into account its breach of the NDA and pre-release copyright violation, in making its fee determination. Further, although Corel is correct that the district court struck punitive damages, it did so based on an analysis of the availability of such damages under state law for the tort of breach of confidence. The district court never ruled on whether Corel acted with fraud, malice, or oppression and was entitled to consider the jury's verdict as a factor in evaluating the appropriateness of awarding fees to Corel 15 Corel citesScreenlife Establishment v. Tower Video, Inc., 868 F.Supp. 47, 50 (S.D.N.Y. 1994), and Florentine Art Studio, Inc. v. Vedet K. Corp., 891 F.Supp. 532, 541 (C.D.Cal. 1995), but these cases do not aid its position. Both dealt with situations where plaintiffs pressed on with their lawsuits despite lacking any facially legitimate claims that would have justified continuing the action. In contrast, this case involved a clear pre-release infringement of Berkla's nozzles coupled with legitimate state law claims upon which Berkla ultimately recovered at trial. 71 SEDWICK, District Judge, concurring in part and dissenting in part: 72 I concur in the majority's opinion on all issues, save one. I respectfully dissent from the holding that the district court erred when it denied an award of costs to Berkla because Corel failed to make an offer of judgment pursuant to Federal Rule of Civil Procedure 68. The majority adopts an inflexible rule that it is always error to deny costs on the basis that a prevailing party ignored an offer to settle and thereby prolonged litigation, unless the defending party's offer to settle was made pursuant to Rule 68. 73 The majority begins its analysis with the observation that Federal Rule of Civil Procedure 54(d) provides for an award of costs to a prevailing party unless the court otherwise directs. To be more precise, it is Rule 54(d)(1) addressing costs other than attorneys' fees that is pertinent to the disputed issue.1 The majority then reasons that because Corel did not make an offer of judgment pursuant to Rule 68, the district court could not rely on the fact that Berkla ultimately recovered far less than Corel had informally offered in deciding to deny costs to Berkla. 74 There are several problems with the majority's approach. First, by failing to take into account the differences between Rule 54(d)(1) and Rule 68, the majority conflates the two rules and substitutes the simple comparative analysis and mandatory outcome dictated by Rule 68 for the exercise of discretion authorized by Rule 54(d)(1). No wonder the majority opines that to hold otherwise than it does would "render rule 68 largely meaningless." Second, the offer actually made by Corel could not reasonably have been made in the form of a Rule 68 offer. Third, Rule 54(d)(1) gives trial courts discretion to deny costs and logic compels the conclusion that needlessly prolonging litigation is one of the reasons that would support a decision to deny costs. Rule 54(d)(1). Fourth, there is no authority in this circuit to support the inflexible rule adopted by the majority, and the cases relied upon from other circuits do not provide well reasoned support for the rule adopted by the majority. 75 Rule 68 provides that a defending party may offer to allow the party prosecuting a claim to have judgment against the defending party "for the money or property or to the effect specified in the offer." If the offer is not accepted, its costs shifting efficacy is then determined by a comparison of the judgment resulting from the trial with the offer. Rule 68 authorizes more relief than Rule 54(d)(1). It authorizes shifting costs, not merely the denial of costs to one party. There is another significant difference between the two rules. The costs shifting feature of Rule 68 is mandatory; when the judgment obtained is less favorable than the offer, the offeree "must" pay the costs. In contrast, Rule 54(d)(1) operates through the well informed discretion of the trial court. Clearly, the trial court was attempting to exercise the discretion afforded by Rule 54(d)(1), not attempting to apply Rule 68. Nevertheless, the majority reverses his decision, because no Rule 68 offer was made. 76 The offer of compromise actually made by Corel was made orally at a settlement conference and the memorialized in a July 7, 1999 letter from Corel's lawyer to Berkla's lawyer which reads in pertinent part: 77 This letter is to confirm the settlement offer made by Corel at the conclusion of the settlement conference on Tuesday, July 6, 1999. As communicated to you by Judge Hollows, Corel is willing to settle this case for U.S. Four Hundred Thousand Dollars ($400,000) in exchange for a general release of any and all claims against Corel and any affiliated or subsidiary companies, relating to any graphical content contained within any version of CorelDRAW or Corel PHOTOPAINT, as well as all future versions of these products. The terms of the settlement would also include dismissal with prejudice of the current lawsuit, a grant by Mr. Berkla to Corel of a perpetual paid-up license for any nozzle images Mr. Berkla's [sic] contends or could have contended were infringed by Corel, and Mr. Berkla's covenant not to sue Corel in the future for any claims of misappropriation or infringement of his Garden hose, Tubular text of Tubular neon nozzle images. The $400,000 payment would be in satisfaction of all claims, damages, costs, expenses, interest and attorneys fees sought in your action.2 78 The offer sets out terms that go beyond those that would be included in a judgment against Corel for $400,000. Most notably, the offer is contingent on a perpetual paid-up license for Berkla's nozzle images. This would render it very difficult to perform the simple direct comparison of offer with result upon which the mandatory cost shifting feature of Rule 68 turns. In short, the offer made could not reasonably have been made pursuant to Rule 68. Thus, the rule adopted by the majority has the perverse effect of reducing the incentive to make offers of compromise that cannot be molded into a Rule 68 form by eliminating any role they might play in the application of Rule 54(d)(1). 79 In Association of Mexican-American Educators v. State of California, 231 F.3d 572 (9th Cir.2000), the en banc court made it clear that there are many reasons why costs might be denied to a prevailing party pursuant to Rule 54(d)(1) in addition to punishing the prevailing party for some from of misconduct. However, the en banc court left in place the notion that one reason for denying costs is to punish inappropriate behavior by the prevailing party. Surely, needlessly prolonging litigation after a reasonable offer of compromise has been placed on the table is conduct that could support a decision not to award costs. Yet, the majority's rule forecloses consideration of such conduct in every case where the defending party's offer of compromise did not take the form of a Rule 68 offer. 80 The majority concedes that no case from this circuit supports its rule. The three cases relied on from other circuits do not analyze the relationship between Rules 54(d) and 68. The first cases is Clark v. Sims, 28 F.3d 420 (4th Cir.1994), in which prevailing civil rights plaintiffs sought to recover attorneys' fees pursuant to 42 U.S.C. § 1988. There the trial court treated an informal offer of compromise exactly as if it had been an offer of judgment under Rule 68, and limited the prevailing parties' recovery of attorneys' fees to those incurred prior to the date of the supposed offer. In reversing and remanding, the appellate tribunal explained that where a prevailing party in a civil rights action has recovered only nominal damages, it is necessary for the trial court to evaluate a considerable number of factors in deciding what costs to award. Clark contains no analysis of the interplay between Rule 54(d) and Rule 68. 81 In the second case, Ortiz v. Regan, 980 F.2d 138 (2d Cir.1992), plaintiff brought suit in March of 1990 against a state official claiming that she had been deprived of pension benefits without due process of law. In April of 1990, defendant offered to give plaintiff a de novo hearing pursuant to New York law. Eventually, the trial court issued a series of orders. The first denied defendant's motion to dismiss on the grounds that offering a post-deprivation hearing did not eliminate a claim based on the failure to provide a pre-deprivation hearing. The second order granted Ortiz summary judgment, but awarded only nominal damages. The third order limited Ortiz's recovery of attorneys' fees under 42 U.S.C. § 1988 to those incurred prior to the April 1990 offer of a de novo hearing. Ortiz appealed the third order, and it was held that the trial court erred in two respects. First, the award of nominal damages was adequate to support a substantial award under § 1988. Second, it was inappropriate to consider the April offer to conduct a hearing as a cut-off point after which no fees could be awarded, because a court ought not to reply on prior negotiations and hindsight to determine whether to cut off the award of fees lest those with meritorious claims be dissuaded from pursuing them. Then in a passing remark, the appellate court also noted that defendant could, but did not, make an offer under Rule 68 as an additional reason for finding error in using the April cut-off. Once again, the case cited is a civil rights case which neither articulates nor compels the rule of general application adopted by the majority in this case. Ortiz is silent on the relationship between Rule 54(d) and Rule 68. 82 The third case relied upon by the majority is Cooper v. Utah, 894 F.2d 1169 (10th Cir.1990). That case, too, involved a request for attorneys' fees under § 1988. The opinion focuses on a double counting error committed by the trial court. Specifically, the appellate court wrote at some length to make the point that reducing the number of hours for which attorneys' fees may be awarded because the case was not difficult and then further reducing the award on the basis that the issues were simple was analytically flawed. The Cooper court's discussion of Rule 68 is considerably more attenuated and fails to even mention Rule 54(d). It consists in its entirely of the following conclusory remarks. 83 Additionally, we note that the court's downward adjustment of fees based on settlement negotiations is not well-founded. Rule 68 Fed. R. Civ. P. provides a practical tool by which parties may protect against costs. Nothing in the record indicates that the Defendants-Appellees availed themselves of an offer of judgment pursuant to Rule 68. 84 The Cooper court states a conclusion without giving any reason to support it. Regrettably, the majority's analysis here, consisting as it does of a statement adopting the "reasoning of our sister circuits," is equally bereft of rationale. 85 Had my understanding of Rule 54(d)(1) prevailed, the issue would then become whether the district court adequately considered the conditions attached to the $400,000 payment when it decided that Berkla needlessly prolonged the litigation. Chief among the conditions was a requirement that Berkla give Corel a perpetual paid-up license. The parties dispute the significance of that condition. Corel takes the position that such a condition is typical of settlements in cases of this sort and does not really represent a significant impediment to accepting the offer. Berkla maintains that the paid-up license condition was a significant concession which warranted his rejection of the settlement offer. Which of these competing views is supported by the facts should be evaluated in the first instance by the trial judge to whom discretion has been granted by Rule 54(d)(1). Accordingly, this issue would have to be remanded for further proceedings in the district court were my view of Rule 54(d)(1) also the majority's view. Notes: 1 Of course, Rule 54(d)(2) contemplates an award of "attorneys' fee costs", but that is not the rule with which we are concerned at the moment, for we have separately addressed the denial of "attorneys' fee costs" and affirmed the district court's decision to deny them 2 Appellant's Excerpts of Record, Vol. 4 at p. 813	{ "pile_set_name": "FreeLaw" }
503 F.2d 1405 U. S.v.Borkenhagen 74-1165 UNITED STATES COURT OF APPEALS Seventh Circuit 9/5/74 1 N.D.Ill. AFFIRMED	{ "pile_set_name": "FreeLaw" }
470 F.3d 42 Maria De Los Angeles BARRETO-ROSA et al., Plaintiffs, Appellants,v.Aleida VARONA-MENDEZ et al., Defendants, Appellees. No. 05-2749. United States Court of Appeals, First Circuit. Submitted August 31, 2006. Decided December 1, 2006. Marie Elsie Lopez-Adames, and Gonzalez-Lopez & Lopez-Adames, on brief, for appellant. Nerylu Fiueroa Estasie, and Sanchez Betances, Sifre, Munoz Noya & Rivera, P.S.C, and Pedro J. Varela on brief, for appellees. Before SELYA, Circuit Judge, SILER,* Senior Circuit Judge, and HOWARD, Circuit Judge. SILER, Senior Circuit Judge. 1 Plaintiff Maria de los Angeles Barreto-Rosa appeals the district court's summary judgment in her 42 U.S.C. § 1983 claim against Aledia Varona-Mendez, Yolanda Zayas, and the Administration for Child Support Enforcement (collectively, "Defendants"). We AFFIRM because Barreto-Rosa's claim is barred by the doctrine of res judicata. I. 2 In February 2002, Barreto-Rosa, an Administrative Judge in the Administration for Child Support Enforcement ("ASUME"), filed an injunction petition in the Court of First Instance of the Commonwealth of Puerto Rico requesting relief from an order that would transfer her to a distant ASUME office. Barreto-Rosa's claim was dismissed in July 2002, but she appealed to the Puerto Rico Circuit Court of Appeals. 3 In October 2002, while her appeal was pending, Barreto-Rosa filed this § 1983 suit in the United States District Court for the District of Puerto Rico, alleging various violations of her civil rights based on her political affiliation with the New Progressive Party. In December 2002, Defendants filed a motion for summary judgment in lieu of an answer, arguing that res judicata barred her § 1983 claim. In September 2003, the district court issued an Opinion and Order abstaining from hearing the case at that time based on Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).1 The district court also found that res judicata could not yet be applied because "while the same litigants are involved and essentially the same issues are discussed . . . [i]n the case at bar, there i[s] no `final and appealable' decision, since the judgment of the Court of First Instance was appealed . . . and is still pending." 4 In November 2003, the Circuit Court of Appeals of Puerto Rico vacated the dismissal and remanded Barreto-Rosa's equitable claims to the Court of First Instance for an evidentiary hearing. In October 2004, Barreto-Rosa requested that the Court of First Instance dismiss these claims with prejudice because they were moot and adequate redress was pending in federal court.2 This request was timely granted. In December 2004, Defendants filed a second motion for summary judgment based on res judicata, arguing that the Court of First Instance's dismissal with prejudice of Barreto-Rosa's claims was a final and unappealable judgment that precluded Barreto-Rosa's § 1983 claim. In June 2005, the district court referred the issue to a magistrate judge for a Report and Recommendation ("Magistrate's Report"). The Magistrate's Report later recommended denial of Defendants' motion for summary judgment, finding that Barreto-Rosa's claims were within the exception of Calderon-Rosado v. Gen. Elec. Circuit Breakers, 805 F.2d 1085, 1087 (1st Cir.1986).3 5 The district court disagreed with the Magistrate's Report, finding that Barreto-Rosa's claim did not fit within the Calderon Rosado exception because the Defendants "expressly objected [to] plaintiff's splitting of claims between state and this federal court[] from the very beginning of the case."4 The district court granted Defendants' motion for summary judgment in September 2005.5 Barreto-Rosa now appeals the district court's summary judgment termination of her § 1983 claim. II. 6 This court reviews a grant of summary judgment de novo. Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006). All facts and reasonable inferences are construed in a light most favorable to the nonmoving party. DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.2005). "The mere existence of a scintilla of evidence" in favor of the nonmoving party is insufficient to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. 7 Federal courts are required to give full faith and credit to a final judgment issued by a court of the Commonwealth of Puerto Rico. See Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (finding that federal courts generally accord full faith and credit to state court judgments); Muniz Cortes v. Intermedics, Inc., 229 F.3d 12, 14 (1st Cir.2000); see also 28 U.S.C. § 1738 (providing that records and judicial proceedings of every court within the United States, Territories and Possessions shall have the same full faith and credit that they have by law in the State, Territory or Possession in which they are taken).6 Therefore, Puerto Rico law dictates the preclusive effect of such a judgment. Cruz v. Melecio, 204 F.3d 14, 18 (1st Cir. 2000). Under Puerto Rico law, res judicata and collateral estoppel preclude the relitigation of claims and issues that were, or could have been, brought in a previous action for which judgment has been rendered.7 Baez-Cruz, 140 F.3d at 28 n. 1. Puerto Rico's preclusion doctrine provides: 8 In order for that the presumption of res adjudicata be valid in another suit, it is necessary that, between the case decided by the sentence and that in which the same is invoked, be the most perfect identity between the things, causes and person of the litigants, and their capacity as such. 9 31 P.R. Laws Ann. § 3343. 10 Although the statute only mentions res judicata, or claim preclusion, it also permits collateral estoppel by judgment, or issue preclusion. See Texaco Puerto Rico, Inc. v. Medina, 834 F.2d 242, 245-46 (1st Cir.1987) (citing A & P Gen. Contractors v. Associacion Cana, Inc., 10 P.R. Offic. Trans. 987, 995-96 (1981)). Puerto Rico law requires a prior judgment on the merits that is "final and unappealable" for res judicata to apply. Cruz v. Melecio, 204 F.3d 14, 20-21 (1st Cir.2000). A voluntary dismissal with prejudice is considered a "final and unappealable" judgment under Puerto Rico Law. Medina v. Chase Manhattan Bank, 737 F.2d 140, 142 (1st Cir.1984). A. 11 Calderon Rosado stands for the proposition that if a defendant fails to object to claim splitting prior to an adjudication on the merits of the first claim, the res judicata defense may be deemed waived in the second claim. See Calderon Rosado, 805 F.2d at 1087. The policy behind this exception is that it would be unfair to allow a defendant to use res judicata to defend a second claim if, influenced by its consent to the claim splitting, the plaintiff voluntarily dismissed its first claim. 12 In Calderon Rosado, the plaintiff filed claims against his employer in the Superior Court of Puerto Rico alleging "unjust dismissal." He subsequently filed a similar suit in federal district court under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq. While both suits were pending, the plaintiff moved to dismiss his claims in Superior Court, explaining to the court his reasoning that the remedies under the ADEA were more liberal. At no time prior to the dismissal did the employer object to facing claims in different courts. The employer also made statements acknowledging that the claims would proceed in federal court. Id. at 1086. However, once the claims were dismissed, the employer sought summary dismissal on res judicata grounds. The district court agreed and dismissed the plaintiff's ADEA claims. Id. 13 We reversed the dismissal of the plaintiff's ADEA claims, applying the "recognized exception to the general rule prohibiting claim splitting [] that if the parties agree, or a defendant implicitly assents, to a plaintiff's splitting his claim, then a judgment in an earlier action which normally would bar the subsequent action will not." Id. at 1087 (citing Restatement (Second) of Judgments § 26(1)(a) (1982)). We found that the employer consented to the claim splitting when he made affirmative statements acknowledging that the claims in federal court would proceed and also failed to object to the claim splitting at any point in the litigation. Id. (citing Restatement (Second) of Judgments § 26, cmt. a, illus. 1). 14 Barreto-Rosa argues that this case falls within the Calderon Rosado exception because the Defendants effectively consented to the claim splitting when they failed to object to her statement during the hearing on the motion to dismiss before the Court of First Instance that a claim was pending in federal court. However, the Defendants' failure to object at that hearing does not constitute consent for purposes of Calderon Rosado. Thus, the exception is inapplicable here. 15 Consent in Calderon Rosado was based on the employer's affirmative statements acknowledging the claim splitting as well as his failure to object. The Defendants in this case made no such affirmative statements and had expressly objected twice in federal court to the claim splitting when Barreto-Rosa made the statement to the Court of First Instance. Thus, the implicit consent justifying the exception in Calderon Rosado is simply not present here because Barreto-Rosa was fully aware of the Defendants' objection to the claim splitting. 16 It is of no consequence that the Defendants never objected to the Court of First Instance because their objections in federal court are not only sufficient, but likely mandatory. It is an open question under Puerto Rico law at what point prior to an adjudication on the merits of the first claim that an objection to claim splitting must be brought.8 However, here it is of no consequence because the Defendants raised an objection to the claim splitting in their first responsive pleading to the complaint in federal court—their motion for summary judgment. 17 Therefore, because the Defendants' objections in federal court served adequate notice to Barreto-Rosa of their protest to the claim splitting, the Calderon Rosado exception is inapplicable in this case. B. 18 Barreto-Rosa's next argument is that regardless of whether the Calderon Rosado exception applies, res judicata should otherwise not bar her federal claim because: (1) the Defendants never objected to the claim splitting to the Court of First Instance; (2) she specifically reserved her right to litigate in the federal court; and (3) public policy considerations weigh in favor of finding an exception to res judicata in this case. 19 Barreto-Rosa's first contention in this respect is that res judicata is inapplicable because neither she nor the Court of First Instance expected the voluntary dismissal with prejudice of her initial claims to bar her § 1983 claim. This argument is unavailing as Barreto-Rosa should have known that the dismissal with prejudice would bar her federal claims because of res judicata. In its September 2003 Order, the district court analyzed the res judicata issue at length. Specifically, the district court found that the first two requirements were present, and that once the third requirement was met, a "final and unappealable" decision, res judicata might apply. Therefore, when Barreto-Rosa voluntarily sought dismissal of her claims before the Court of First Instance, she should have known that res judicata would likely bar her § 1983 claim. 20 Barreto-Rosa's next argument is that she specifically reserved her right to litigate her federal claims in federal court in her initial injunction petition before the Court of First Instance. Barreto cites England v. Louisiana State Bd. of Medical Exam'rs, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), for the proposition that a plaintiff may preserve his right to litigate his federal claims in federal court after litigating state claims in state court. As this circuit has held, an England reservation allows "a form of abstention that permits the federal court, in effect, to ask a state court to clarify a murky question of state law involved in the case, while permitting the plaintiff to return to the federal forum for a determination of the federal question after the state court has decided the issue of state law." Duty Free Shop, Inc. v. Administracion De Terrenos, 889 F.2d 1181, 1183 (1st Cir.1989). 21 However, an England reservation is inapplicable in this case because Barreto-Rosa identified no unsettled state law question that required federal court abstention. Moreover, this circuit's precedent suggests that for an England reservation to be effective, a plaintiff must initially file suit in federal court and have the district court abstain from hearing the case pending resolution of the state claims in state court. Allen v. McCurry, 449 U.S. 90, 101 n. 17, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); see also Partido Nuevo Progresista v. Perez, 639 F.2d 825, 826 n. 2 (1st Cir.1980). In this case, Barreto initially filed suit in the Court of First Instance of Puerto Rico. 22 Barreto-Rosa's final argument is that public policy considerations require an exception to res judicata. Puerto Rico's doctrine of res judicata contains several exceptions. Res judicata may not apply if: (1) the prior judgment was rendered pursuant to an invalid acceptance of the claim by defendant; (2) the prior judgment was entered by a court without jurisdiction; (3) appeal from the prior judgment was attempted but could not be accomplished and appellant was not at fault; (4) there is fraud; (5) there would be a miscarriage of justice; or (6) public policy demands an exception to res judicata. See Medina v. Chase Manhattan Bank, 737 F.2d 140, 144 (1st Cir.1984). "[C]ourts have refused to apply rigidly the defense of res judicata if in so doing it defeats the ends of justice, especially if reasons of public policy are involved." Perez v. Bauza, 83 D.P.R. 220, 226 (1962). 23 The first four exceptions are inapplicable in this case. There is only one case in this circuit considering Puerto Rico's "miscarriage of justice" exception. In Medina, this court found no "miscarriage of justice" when the lower court dismissed plaintiff's claim with prejudice despite the plaintiff's request for dismissal without prejudice. Medina, 737 F.2d at 143-44. This court refused to second guess the lower court's decision to dismiss with prejudice even though res judicata would deny the plaintiff the opportunity to litigate his claim. Id. This case is even stronger: Barreto-Rosa voluntarily made the request to dismiss with prejudice, thereby denying herself the opportunity to litigate her claim. 24 The final exception, rooted in public policy, similarly does not apply. This exception was successfully argued in two cases. In Perez v. Bauza, the court granted an exception to res judicata in a paternity suit because the court did not want to punish the child for the mother's mistake. Id. at 226-27. The exception was also applied in Millan Soto v. Caribe Motors Corp., 83 D.P.R. 494 (1961), where the court allowed an exception because the acceptance of the contract at issue in the previous judgment had been obtained by deceit, the contract was defective and violated Puerto Rico law, and the previous judgment was made in a summary and special proceeding. Id. at 480-81. In this case, Barreto-Rosa's tactical error was her own decision and was not the result of fraud, illegality, or any other outside force. Public policy does not demand an exception in this case. IV. 25 For the foregoing reasons, we affirm the entry of summary judgment terminating Barreto-Rosa's § 1983 claim. 26 Affirmed. Notes: * Of the Sixth Circuit, sitting by designation 1 The district court reasoned that abstention was proper in order to "avoid duplicative litigation and because the local court case may decide the outcome of the instant case." 2 The minutes from the Court of First Instance state that "the plaintiff desists with prejudice of its claim exclusively of an injunction since due to the passing of time it has become moot. It also informs the Court that the tort action is filed in the Federal Court." 3 TheCalderon Rosado exception, discussed in detail infra, is a waiver exception to res judicata providing that if the parties agree or a defendant implicitly assents to the splitting of a plaintiff's claims, the defense of res judicata is waived. 4 The district court also noted that it had alerted Barreto-Rosa to the possibility of theres judicata bar in its September 2003 Opinion and Order. ("Plaintiff's failure to file all available claims that could have been plead in the state of federal forum, caused an unnecessary splitting of the actions, and is subject to the `final and unappealable' decision of the local court."). 5 The district court entered an Amended Opinion and Order in October 2005 6 Section 1738, although not literally applicable to Puerto Rico, applies to judgments of the Puerto Rico courts by virtue of the provisions of 48 U.S.C. § 734 (stating that, unless otherwise specified, federal statutes applicable to states apply to Puerto Rico)See Baez-Cruz v. Municipality of Comerio, 140 F.3d 24, 28 n. 1 (1st Cir.1998). 7 Federal courts hearing § 1983 actions must accord the same preclusive effect to state court judgments, both as to claims and issues previously adjudicated, as would be given in the state court system in which the federal court sitsMigra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83-84, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). 8 Other states require objection at this pointSee, e.g., Thompson v. Gaudette, 148 Me. 288, 92 A.2d 342 (1952) (requiring objection "at the earliest possibility").	{ "pile_set_name": "FreeLaw" }
26 Cal.App.3d 825 (1972) 102 Cal. Rptr. 518 THE PEOPLE, Plaintiff and Respondent, v. BEN LEE BROWN, Defendant and Appellant. Docket No. 19753. Court of Appeals of California, Second District, Division Five. June 13, 1972. 829 COUNSEL Gilbert F. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Herbert L. Ashby, Chief Assistant Attorney General, William E. James, Assistant Attorney General, Russell Iungerich and Daniel W. McGovern, Deputy Attorneys General, for Plaintiff and Respondent. OPINION COLE, J.[] Ben Lee Brown appeals his conviction of murder in the second degree arising out of the death of Jessie Houston. Defendant was previously convicted of this same offense in 1966, and the conviction was affirmed by division three of this court in 1967 in an unpublished opinion. The major contentions raised on this appeal were also raised then. Subsequently, the United States Court of Appeals for the Ninth Circuit entertained an appeal 830 from a denial by the United States District Court of Brown's petition for a writ of habeas corpus. The federal Court of Appeals reversed the order of the United States District Court, first, ruling that at the original trial the requirements of Jackson v. Denno, 378 U.S. 368 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205], concerning trial court resolution of the voluntariness of a "confession" did not appear on the record with the "unmistakable clarity" which is required. Secondly, the federal Court of Appeals was "gravely troubled" by what it termed the trial court's failure to make an adequate inquiry into the cause of defendant's expressed dissatisfaction with his counsel at the first trial, and his refusal to talk to or collaborate with his counsel. The federal proceedings are reported sub nom., Brown v. Craven, 424 F.2d 1166. On this appeal, defendant raises four contentions: "I. The trial court committed prejudicial error in refusing to instruct the jury on the Diminished Capacity evidence and the rebuttal of malice by evidence of intoxication. "II. Appellant was deprived of effective assistance of counsel by failure to secure and present evidence of Diminished Capacity. "III. The trial court erred in not conducting a hearing to determine what might be done to secure appellant's cooperation with appointed counsel. "IV. The admission of appellant related to the jury by the arresting officer was elicited under compulsion in violation of appellant's constitutional rights." We set forth only so many of the facts as are necessary to delineate the limited points raised. Facts In the early morning hours of October 11, 1965, police were called, apparently by defendant and his 14-year-old son, to defendant's one-room, plus kitchen, apartment where the body of Jessie Houston, clad in a night-gown, was found in bed. The body was removed by coroner personnel for further examination. Defendant was not taken into custody. The investigating officer, Fallon, noticed what appeared to be burns around the legs and thighs of decedent. On October 11, defendant stated that the previous night (about 24 hours earlier) he had gone to bed with the deceased and that she woke him up about an hour later saying she had been burned. The bed was on fire and he threw some water on her. The next day he purchased 831 salve for her burns. There were tears in defendant's eyes as he talked to the officer. Before testifying to the foregoing effect, Officer Fallon had testified similarly before the court, out of the presence of the jury, adding to his testimony then that defendant said that the victim had been high on narcotics and he had brought her home and that about two hours or so before the officers were there, his son had awakened him and told him that Miss Houston was not breathing. Another police officer, Hambley, testified that on October 12, 1965, at about 10 o'clock in the morning, he was advised by radio to proceed to the apartment to make a further investigation because the coroner's report indicated that the deceased had suffered injuries of a traumatic nature. Officer Hambley testified, out of the presence of the jury, that he saw evidence of blood or a scuffle in the apartment; that he ascertained that defendant, defendant's son and the deceased had been the only persons present, and that he knew these matters before he asked defendant how the decedent was injured. Hambley testified that at this point he was not absolutely certain that the defendant was a primary suspect.[1] When defendant told Hambley that he had slapped the victim the officer placed defendant under arrest and advised him of his constitutional rights. The advice was concededly defective under Miranda[2] standards. Therefore, no attempt was made to introduce into evidence any statement of defendant to the officer subsequent to the time of arrest. However, Hambley was permitted to testify in front of the jury that when he told defendant that the coroner's office had advised that there were certain traumatic injuries on the deceased's body and asked the defendant if he had any knowledge of how she received those injuries that the defendant stated: "Yes. I slapped her." 832 At the time this statement was made by defendant the officer smelled an alcoholic odor and was of the opinion that defendant had been drinking but was not under the influence of alcohol. The trial court, after hearing this testimony, found the statement to be voluntary and further not to be the product of custodial interrogation. The coroner testified that the cause of death was due to blows to the head applied by a blunt force. He also described detailed deep puncture wounds around the deceased's buttocks area which could have been caused by the spike heels on women's shoes. As to the burning about the decedent's legs and thighs, this, in the coroner's opinion, had been suffered when the decedent was either dying or dead. The only defense testimony presented was that of defendant's son. His testimony was impeached in material respects. His testimony was that the victim on the night of her death appeared to be high; that she went into the kitchen and on coming out, fell, hitting her head on a coffee table; that the victim then lit a cigarette and went to bed, smoking; and that he, the witness, fell asleep. He testified that when he woke up the mattress appeared to be burnt; that he told his father, the defendant about it; that the latter put his ear to the decedent's heart and said she was alive and that he, the witness, fell asleep again. When he woke up again he noticed that the victim had stopped breathing and told his father, who started crying. His father got dressed and he and his father went to call the police and an ambulance. We turn now to defendant's contentions. Instructions About Intoxication (1a) Defendant's argument that the trial court committed error in refusing to give various instructions dealing with appellant's intoxication and mental condition as it affected his capacity to harbor malice is without merit. This is for the simple reason that there was no evidence that defendant was intoxicated. (2) It is, of course, error to instruct the jury on matters or issues not before it. Conversely, the court must give any correct instructions on defendant's theory of the case which the evidence justifies no matter how weak or unconvincing that evidence may be. (People v. Bynum, 4 Cal.3d 589, 604 [94 Cal. Rptr. 241, 483 P.2d 1193].) (1b) Here, it is true that at the conference with the trial court, out of the presence of the jury, and at a very early stage in the trial, counsel for defendant stated that he had definite information that diminished capacity would be part of the defense and that there was drinking on the part of defendant. He stated that he intended to follow this up to the best of his 833 ability, and "I will have to see what evidence I will be able to bring in, whether or not it will be brought in by my client or not." Again, out of the presence of the jury, and in connection with a hearing on the question of the voluntariness of his statement to the officers, defendant testified that he had been drinking. (The transcript is considerably confused as to whether this testimony relates to the evening immediately preceding the death of decedent or the evening before that.) The transcript does support the inference from defendant's testimony that he had a hangover from drinking when Officer Hambley arrived on October 12. However, as indicated, defendant's testimony was presented only to the court and not to the jury. Defendant did not take the stand before the jury. The only evidence at all relating to defendant's drinking which was heard by the jury is the testimony of Officer Hambley that on October 12, 1965, defendant's breath had a stale alcoholic odor and that defendant stated that the preceding night (in other words, the evening of October 11, more than 12 hours after decedent's body had been delivered to the coroner) he "had had a few or imbibed or something of that nature." The latter evidence might have raised a question for the jury as to defendant's sobriety on the morning of October 12. But there is no evidence to affect his sobriety or put in issue his mental condition the day decedent met her death. Even if we are to assume that there was evidence that the defendant had been drinking, such conduct prior to the commission of a crime does not by itself establish intoxication or require the giving of a requested instruction on the subject of intoxication. (People v. Turville, 51 Cal.2d 620, 633 [335 P.2d 678]; People v. Cram, 12 Cal. App.3d 37, 44 [90 Cal. Rptr. 393].) Contentions Concerning Defendant's Trial Counsel (3a) Because they have some relationship to each other it is convenient to consider together, and in reverse order from that presented in defendant's brief, the contentions that the trial court erred in not having a hearing to determine what might be done to secure defendant's cooperation with appointed counsel and that such counsel failed to give effective assistance to defendant since he did not secure and present evidence of diminished capacity. In reversing the judgment denying the writ of habeas corpus, the United States Court of Appeals ruled that at the first trial the superior court did not make "adequate inquiry into the cause of Brown's dissatisfaction with his counsel or [take] any other steps which might possibly lead to the appointment 834 of substitute counsel in whom Brown could repose his confidence. The result was that Brown was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate.... Of course, a court is not required to provide an indigent accused with any particular attorney whom he may desire, and we think that the state court might very properly have required Brown to accept the assistance of some other of the great number of competent attorneys associated with the Public Defender's office of Los Angeles County. The problem arises because the state court did not, in our opinion, take the necessary time and conduct such necessary inquiry as might have eased Brown's dissatisfaction, distrust and concern. And, we think it not unreasonable to believe that had Brown been represented by counsel in whom he had confidence he would have been convicted, if at all, of no more than the offense of manslaughter." (Brown v. Craven, 424 F.2d 1166, 1169-1170.) (4) We recognize as the law applicable in this situation, a statement of our Supreme Court in People v. Marsden, 2 Cal.3d 118, 123 [84 Cal. Rptr. 156, 465 P.2d 44], quoting from People v. Mitchell, 185 Cal. App.2d 507, 512 [8 Cal. Rptr. 319]: "`A defendant's right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused.... (5) "The right of a defendant in a criminal case to have the assistance of counsel for his defense ... may include the right to have counsel appointed by the court ... discharged or other counsel substituted, if it is shown ... that failure to do so would substantially impair or deny the right ..., but the right to such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing ... that the right to the assistance of counsel would be substantially impaired... in case the request is not granted, and within these limits there is a field of discretion for the court." [Citations.]'" The Supreme Court continued (2 Cal.3d at pp. 123-124): "Defendant properly contends that the trial court cannot thoughtfully exercise its discretion in this matter without listening to his reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, `[w]hen inadequate representation is 835 alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy.' [Citation.] (6) Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention `is lacking in all the attributes of a judicial determination.' [Citation.]" (3b) In fairness to the previous state courts which ruled on this matter, we think it must be pointed out from the record of the first trial, of which we take judicial notice, that defendant manifested an obdurate refusal to cooperate with counsel in his first trial; that the trial court there conducted a colloquy with him extending over seven pages of the reporter's transcript and that defendant's statement of reasons for requesting a change of attorneys was: "My personal feelings is my case. I don't have any personal feelings against this gentleman. I just don't want to have him for my lawyer. You just try me under duress without an attorney." The previous trial court gave more than thoughtful attention to defendant's contentions. Given the broad clue appearing from the language of the United States Court of Appeals, quoted above, it is predictable that in his second trial of the matter defendant should have acted in the manner which we are about to recite. However, it is evident that defendant was so enamored of the federal suggestion that if he was represented by an attorney in whom he had confidence it was likely that he would be convicted only of manslaughter at best, that he determined not to have confidence in anyone. It is also evident from some of his comments that he was under the erroneous opinion that he could only be convicted of manslaughter. It is also obvious that he failed to heed the concluding words of the opinion of the federal court reversing the United States District Court's denial of a writ of habeas corpus: "Upon remand, the District Court may temporarily hold Brown's petition in abeyance and shall grant the petition unless California authorities do, within a reasonable period, not exceeding sixty days, grant Brown a new trial attended with all reasonable assurance that he be represented by competent counsel, from the Public Defender's office or elsewhere, in whom he may, if he does not demonstrate obstinance, recalcitrance, or unreasonable contumacy, repose his confidence." (Italics added; 424 F.2d at p. 1170.) It is clear to us that defendant did demonstrate each of these undesirable traits as illustrated by the matters occurring which we now outline. 836 1. Although it was not necessarily required so to do, the superior court on August 13, 1970, granted the motion of the public defender under then Penal Code section 987a to relieve the public defender's office "for other reasons" as provided in that section. The public defender stated only that it was in the interest of defendant for the public defender to be relieved. When the court asked for further explanation, insofar as the record shows, counsel stated only that the motion was the basis of his considered judgment and that to go further into the matter might be prejudicial to the defendant. The court conferred off the record with the deputy district attorney and the deputy public defender, and announced that it was persuaded that the motion was well taken and would be granted. The court then asked the defendant the name of the lawyer that he wanted appointed, and defendant named counsel who had represented him in his prior state court appeal. That counsel was appointed and represented defendant thereafter throughout his trial. 2. Actual trial of this matter took place over a span of seven court days, from October 27 through November 6, 1970. At the start of the trial, counsel announced that defendant was ready and defendant stated: "I got a witness, my son, and I don't see him, your Honor." Counsel advised that he had been unable to get in touch with the son but he and defendant could take care of this between them. The son did, in fact, testify as indicated above. 3. Defendant then attempted individually to waive a jury trial but both his counsel and the People refused the waiver. After the noon recess, the court again took up with defendant and his counsel, in chambers, the question of a jury trial. Counsel stated that he was convinced that it would not be wise for defendant to waive a jury trial. Defendant first said he had discussed nothing about this with his counsel but then said that counsel had so advised him previously.[3] 837 4. In a chambers' session on the third day of trial, after a discussion concerning the diminished capacity defense (which we will come to shortly), the court made certain inquiries of defendant.[4] 838 5. The next reference to the relationship between defendant and counsel, 839 eliminating interim reports on counsel's efforts to locate defendant's son as a witness, occurred on the fourth day of the trial.[5] 6. While counsel had indicated that he could keep his client under control, the control did not last any longer than the start of proceedings the next day.[6] 840 Thereafter, the court having been forced to conduct the trial in defendant's absence, defendant apparently remained outside of the courtroom through the remainder of the trial except when he was brought into the court in the absence of the jury. 7. At the start of the trial session in the afternoon of the same day that defendant refused the opportunity to be present, this colloquy occurred.[7] After defendant left the courtroom again, as indicated in the 841 footnote, counsel made and the court denied a motion for judgment of acquittal. Counsel was then excused to have an opportunity to confer with defendant and later trial resumed again in defendant's absence. 8. Toward the end of the afternoon session, defense counsel made the following statement on the record: "[DEFENSE COUNSEL]: If Your Honor please, I wish to advise the Court that today at 2:20 I personally spoke with the defendant, Ben Brown, and inquired whether he wished to take the stand and testify on his own behalf in this matter. I advised him that it was his decision to make. I pointed out to him further that in my judgment in some cases some juries take a dim view of the defendant who does not take the stand. I further pointed out to him that if he did take the witness stand he would be subjecting himself to cross-examination. The defendant did not reply. Therefore, the defendant will not take the stand at this time. "THE COURT: Is this your advice to him, that he not take the stand. "[DEFENSE COUNSEL]: Yes. "THE COURT: All right. Then you are ready to rest? "[DEFENSE COUNSEL]: Yes." Court then recessed until the following afternoon when the defendant was again brought into court in the absence of the jury.[8] 842 843 9. At time of sentencing defendant presisted in his objections to counsel.[9] 844 We have set forth all of the colloquy pertaining to the representation of defendant appearing in the reporter's transcript so that it should be crystal clear that defendant was afforded the hearing envisioned by People v. Marsden, supra, 2 Cal.3d 118, and found to be lacking in Brown v. Craven, supra, 424 F.2d 1166. Indeed, it is ironic to note that the counsel now complained of is the very one whom defendant had asked to be appointed; that halfway through his trial he started to praise the public defender whom he had previously objected to and that he did not start to absent himself from the courtroom until the day that the People put on evidence of a criminalist that could be construed to be highly damaging to defendant. It would be stultifying to say that defendant's expressed dissatisfaction with his counsel is sufficient to win him a reversal or a new trial from a credulous appellate court. Defendant's refusal to cooperate, obviously, was a calculated gamble that such tactics would secure him a second reversal. (7a) We have not the slightest doubt that defendant's other point about counsel that is that defendant was deprived of effective assistance of counsel by reason of the latter's failure to secure and present evidence of diminished capacity is not well taken. It is now argued that trial counsel should have (1) asked the court to examine defendant to determine his tolerance and reaction to the use of alcohol and seconal; (2) seen that defendant was advised to testify in his own defense so that the jury could be informed fully of the use of alcohol and seconal preceding his arrest; (3) asked defendant's son to describe his 845 father's condition; and (4) secured experts to testify as to the effect upon defendant as a result of his ingestion of drugs and alcohol. Suggestions 1 and 4 both presume that there was evidence that defendant used alcohol and seconal immediately prior to decedent's death. In the absence of any such evidence, the examination and expert testimony requested would have been speculative and useless. Insofar as suggestion number 2 is concerned, the quotations which we have set forth in footnote 8, supra, amply show that defendant was advised to testify insofar as the court could advise him. Counsel's suggestion that defendant not testify was clearly a tactical decision with which this court will not and should not be involved. (People v. Cram, 12 Cal. App.3d 37, 45 [90 Cal. Rptr. 393].) Indeed, given the nature of defendant's testimony and remarks to the court out of the presence of the jury, counsel may well have felt that for defendant to testify concerning drinking would harm him more than help. It is clear that counsel was acutely aware of the possible existence of a defense of diminished capacity. Thus, the record shows, early in the trial, that the court asked defense counsel whether diminished capacity was going to be one of the defenses. Counsel stated: "There is definite information that I have that the diminished capacity would be part of the defense. "I have information that there was drinking on the part of Mr. Brown.... I intend to follow it up to the best of my ability.... Now, at the present juncture of the case, I will have to see what evidence I will be able to bring in, whether or not it will be brought in by my client or not. "THE COURT: Well, have you prepared yourself with this defense in mind? "[DEFENSE COUNSEL]: Well, yes. That is not the whole defense. That was an element that became apparent to me in talking to Mr. Brown when I first was appointed in August." (8) The applicable law is as follows: "The constitutional right to the assistance of counsel in a criminal case [citations] includes the guarantee that such assistance be `effective.' [Citations.] That `effective' counsel required by due process, however, is not errorless counsel; rather, it is counsel `reasonably likely to render, and rendering reasonably effective assistance.' [Citations.] 846 (9) "Although the determination of whether the demands of due process have been met in a particular case is always `a question of judgment and degree' to be answered in light of all the circumstances and with a view to `fundamental fairness' [citations], certain general standards have evolved for the aid of the court making this determination. Fundamental among these is that which places upon counsel the duty to conduct careful factual and legal investigations and inquiries with a view to developing matters of defense in order that he may make informed decisions on his client's behalf both at the pleading stage [citations] and at trial [citations]. (10) If counsel's `failure [to undertake such careful inquiries and investigations] result in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.' [Citations.]" (In re Saunders, 2 Cal.3d 1033, 1041-1042 [88 Cal. Rptr. 633, 472 P.2d 921].) (7b) While "[t]he failure to present the defense of diminished capacity is the withdrawal of a crucial defense within the foregoing principles, whether it is occasioned by ignorance of counsel ... or by lack of preparation and investigation..." still a defendant must show an inadequacy as a demonstrable reality. (People v. Cortez, 13 Cal. App.3d 17, 328, 330 [91 Cal. Rptr. 660].) Here, as in People v. Cram, supra, 12 Cal. App.3d 37, 46, there is no suggestion that the defense of diminished capacity due to intoxication was withheld because of ignorance of facts which might raise it, and therefore, without any real judgment by counsel at all. This distinguishes the case at bench from In re Saunders, supra. Here, as in Cram, the evidence of intoxication is slight, if not nonexistent. Here, as in Cram, counsel rested his hope on another defense the testimony of defendant's son that the decedent suffered the fatal injuries by reason of a blow on her head when she struck a coffee table while falling. There is nothing in this record to show that trial counsel had not investigated a possible defense of diminished capacity. (People v. Roy, 18 Cal. App.3d 537, 554 [95 Cal. Rptr. 884].) The final suggested error on this point is that counsel should have asked defendant's son to describe his father's condition. The son was already badly impeached. At the trial under review here he testified that decedent fell and struck her head against the coffee table. At the first trial some four years earlier the son testified that the decedent remained in bed the entire evening of her death and did not get up at all. Since the son had also testified that defendant stayed in bed the entire evening of decedent's death, testimony that he was drinking on that evening would have been likewise subject to serious impeachment. There is no showing that the son was otherwise aware of his father's actions. This assignment of error is without merit. 847 Contentions Concerning Defendant's Constitutional Rights (11) The last claim made by defendant is that it was in violation of his constitutional rights to allow Officer Hambley to testify that on October 12 defendant stated he had slapped the decedent. The claim is that under the principles of Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], defendant should have been advised of his constitutional rights prior to eliciting that information. Before the court allowed this testimony into evidence it heard testimony from the officer, out of the presence of the jury. In full compliance with the federal mandate and with state practice, the court determined as a question of fact that defendant's statements were voluntarily made. Defendant's argument that his Miranda rights were violated are misplaced. Officer Hambley did regard him as a material witness and would have been unwilling to allow defendant to leave, but there is no evidence that defendant knew this. It is also true that the officer went to the scene because, according to his testimony, more investigation was needed, and that he had advised defendant that he was investigating the circumstances of the death. The circumstances known to Officer Hambley and his state of mind as to defendant's status as a suspect are set forth in the factual recitation above. (See fn. 1, supra, and related text.) There is no showing that defendant was in custody. When the officer and his partner first arrived at defendant's apartment, defendant was dressed only in his underclothing and proceeded to move about the apartment dressing himself while talking to the officers. "Custody is an essential element of the accusatory stage." (People v. Miller, 71 Cal.2d 459, 481 [78 Cal. Rptr. 449, 455 P.2d 377].) The trial court found that the questions asked of defendant before he became a suspect in Officer Hambley's mind were not the product of custodial interrogation. It is, of course, only such interrogation focusing on an accused which brings into play the requirements of the Miranda warning. (Miranda v. Arizona, supra, 384 U.S. 436, 444 [16 L.Ed.2d 694, 706].) That Officer Hambley was merely conducting an investigation is also borne out by the fact that he first became suspicious that a crime might have occurred and that defendant might be involved in it when defendant told the officer that he had slapped the decedent. Officer Hambley clearly had reason to investigate further when he was sent to the apartment, but that is not the same as probable cause to arrest. (Cf. People v. Wright, 273 Cal. App.2d 325 [78 Cal. Rptr. 75].) In People v. Morse, 70 Cal.2d 848 711 [76 Cal. Rptr. 391, 452 P.2d 607], our Supreme Court said at page 723, that it is not "to be assumed that any question put by any police officer to a person seriously suspected of crime must necessarily be prefaced by information or warnings as to constitutional rights." A fortiori this is so as to one not a suspect. Even if we make the assumption, unsupported by the record, that defendant felt that he was not free to leave, we certainly would not be warranted in assuming that he felt he was arrested. Until such arrest, at the most there is a temporary detention which does not rise to the dignity of that custody which requires that constitutional warnings be given. (People v. Manis, 268 Cal. App.2d 653, 667 [74 Cal. Rptr. 423].) In contrast to the situation presented in Orozco v. Texas, 394 U.S. 324 [22 L.Ed.2d 311, 89 S.Ct. 1095], defendant was not under arrest the moment that Officer Hambley came into the room. Further, the officer's questions here were much more of an exploratory nature than those in Orozco and were considerably less pointed than those found not to require constitutional warning in People v. Morse, supra. This is not a situation where defendant reasonably believed that his freedom of movement was restricted by the mere presence of official authority. (People v. McLean, 6 Cal. App.3d 300 [85 Cal. Rptr. 683].) Officer Hambley was not required to give a Miranda warning to defendant. Disposition The judgment is affirmed. Stephens, J., concurred. KAUS, P.J. I concur in all respects, except that as far as the last point in the court's opinion is concerned, I would rest the affirmance solely on People v. Manis, 268 Cal. App.2d 653, 667 [74 Cal. Rptr. 423]. Appellant's petition for a hearing by the Supreme Court was denied August 9, 1972. NOTES [] Assigned by the Chairman of the Judicial Council. [1] "A. My mind was opened [sic], and I was satisfied that he, by the questioning up to that point was certainly a material witness, if not a suspect, in the case. I felt satisfied that he knew what transpired there, and whether or not it implicated him as a participant or as a witness. I wasn't thoroughly satisfied until he told me that he slapped her. Then, I formed the opinion that he was now a suspect, a perpetrator of the crime rather than a witness." [2] The case was first tried prior to the decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. However, in California, Miranda standards must be applied in subsequent retrials of cases first tried prior to Miranda. (People v. Doherty, 67 Cal.2d 9, 20 [59 Cal. Rptr. 857, 429 P.2d 177]; cf. Jenkins v. Delaware, 395 U.S. 213 [23 L.Ed.2d 253, 89 S.Ct. 1677].) [3] The following colloquy then took place: "THE DEFENDANT:... me and my attorney haven't been getting along. I done put in a 487a to dismiss [defense counsel]. I have got them all denied. [Defense counsel] argued almost two hours with [district attorney] on that 60-day denial, and he never rejected to nothing [the district attorney] said. So, that is the reason that I didn't want no I haven't got a chance with a jury if I got an attorney going to let the District Attorney do all of the talking, Judge. If I am going to be sold out, I rather to do it with somebody has got a law practice, and I rather take my chance if you if I am going to get railroaded back to the joint, I'd rather be sent by somebody who who sends me that knows the law. I haven't been satisfied with counsel that since I have this case, 1965. "THE COURT: Well, there is no motion before me pending in that regard, and I intend to go ahead. I see no reason why this attorney should not proceed with the matter. He is well acquainted with it. I take it from the file you have been with him for some time? "[DEFENSE COUNSEL]: Yes. "THE COURT: You have worked on the appeal? "[DEFENSE COUNSEL]: I first looked at the case in 1966. I reviewed the reporter's transcript and the clerk's transcript. I prepared about two or three rough drafts of an appellate opening brief. If Your Honor please, I, then, made a final draft and presented that to the Appellate Court. I have since been appointed to the case in August of this year, spent approximately 14 to 15 hours now preparing for the case, and that includes about five or six hours with the defendant himself. I have reviewed again the reporter's transcript. I have outlined the case in my mind, and on paper, and I have researched the applicable points of law. "THE COURT: Mr. Brown, for me to discharge this attorney and appoint another one would mean a long delay in the case. "THE DEFENDANT: This has been happening to me, Your Honor, for pretty close to five months since I have been back. I see what is happening to me. So, I am ready to go back to the pen because I see that is where I am going. So, I would I have been coming on that lane for almost three weeks waiting. I am only going back to the joint. "THE COURT: Not because your counsel is willing that you go because I will insist that he do all that is necessary to defend you. "THE DEFENDANT: I think that my counsel is helping me, Your Honor "THE COURT: He cannot fight facts or the evidence. He can do the best that he can do with what evidence is available, and I will see that he does that. "THE DEFENDANT: I hope that you do, sir." (Italics added.) Thereafter, the court from time to time did inquire of counsel as to certain defenses, and in that manner did see that counsel did the best he could with what evidence was available. [4] "THE COURT: All right. Did you have something that you want to say, Mr. Brown? Is there any reason why we should not proceed with the matter? "THE DEFENDANT: It is just because Judge Ely, in the first place or not I have not been represented properly since I had this case like I actually Monday or Thursday when I come in here I would rather have a jury trial because, you know, right from wrong, and it is going to be no who who represented most to those people sitting out there. They don't know the right they don't know why I am back here. [District attorney] he already Mr. Noguchi laid the foundation out there and those people's minds no doubt I know if I was sitting there and the jury's mind when [district attorney] got there and said about Jessie being burned He did not bring out in the last part that I doctored on Jessie. He did not bring out that I had two witnesses know Jessie was living. "THE COURT: What makes you think that your counsel won't bring those witnesses out? "THE DEFENDANT: Because I haven't got no witness. If I had a good counsel, I would have been on the street. "THE COURT: Well, have you discussed this with [defense counsel]? "THE DEFENDANT: Sure. I asked him to find a witness on 60 days when I got denied that. "THE COURT: You are talking about something else now. We are talking about getting witnesses. Did you give the names of those two witnesses to [defense counsel]? "THE DEFENDANT: I gave him the name of my son who woke me up and told me Jessie had stopped snoring. There is no way that I can prove what this man have said is wrong without somebody saying that they saw Jessie living that day. "THE COURT: Who did that? Your son? "THE DEFENDANT: My son saw. "THE COURT: Is the son going to be called?" A colloquy then followed about whether the son had been or would be served as a witness. After which the following occurred: "THE COURT: Who is the other witness? "THE DEFENDANT: Mary Clay. Mary Clay. The salve on the girl's body? "THE COURT: The salve? "THE DEFENDANT: Bought the salves that you rub. "[DISTRICT ATTORNEY]: Unguentine. "THE DEFENDANT: That Mary brought and I rubbed it on her burns. Dr. Noguchi he did not bring this up yesterday. He showed where the girl was dead. I kind of burned her up from the way that he says she was dead before. Burned her after she was dead or something or another. They are speaking about somebody that I love just as much as I did myself. "THE COURT: We are talking about witnesses. "[DEFENSE COUNSEL]: While we are on the record, I interrogated my client five times and asked him for the names of witnesses, and was told that there were no witnesses. I said, `How about Bobby Brown, your son? He said he wasn't there, but, `He woke me up and told me that the woman wasn't breathing anymore.' Now, I'm going to try my best to get Bobby Brown here, but as my legal knowledge tells me, that is not the most material witness as to what happened. "THE COURT: Well, he is a material witness? "[DEFENSE COUNSEL]: He is a material witness, but I think that you can understand that I haven't defaulted in calling any witnesses because I don't know of any. "THE COURT: Well, Counsel, I do feel that he should be here. That from what is stated in Judge Ely's opinion, and from what the defendant now tells me, he would be a material witness as to the condition of the parties at the time. "[DEFENSE COUNSEL]: I have sent a letter and a telegram, and will now send a subpoena. "[DISTRICT ATTORNEY]: I know where he is. "[DEFENSE COUNSEL]: All I am saying is I tried already to get him here, and I will try some more. "THE DEFENDANT: He is in San Bernardino. "THE COURT: Now, this other witness, if she was present when the defendant was putting salve on the victim, this certainly goes to his state of mind. "[DISTRICT ATTORNEY]: I don't think that she can be located. "THE COURT: Well, that is a different problem. What I am suggesting is that she is material, and I think that the defendant is entitled to have every reasonable effort made to see that she is here, and if counsel hasn't even discovered the name of the witness, then, there is a failure of communication here between the defendant and counsel. "[DEFENSE COUNSEL]: You mean Mary Clay? "THE COURT: Yes. If I understood you to say that you talked to him many times, and he has not even disclosed this name to you before (interrupted). "[DEFENSE COUNSEL]: That is right. Mary Clay came up in the first trial in the reporter's transcript. I believe she did appear, did she not, once? "[DISTRICT ATTORNEY]: I think she did appear at the preliminary, possibly. No. No. She didn't, and I don't think that she testified at the trial. I don't think she testified there. "THE COURT: Well, the defendant is entitled to a vigorous defense, and the very best that is possible and that can be done for him. I would expect that to be done. We will go ahead with the matter, and we will recess to the court and proceed with the jury trial." [5] "[DEFENSE COUNSEL]: My client has begun a discussion with me about the fact that they are using the same evidence as before and asked me to tell things to the jury, and I do not quite understand what his problem is, but it has upset him. "THE COURT: Well (interrupted). "[DEFENSE COUNSEL]: I don't know what can be done. I will try to proceed. "THE COURT: You are running the case. You are in charge. You will have to keep him under control. "[DEFENSE COUNSEL]: I will. "[DISTRICT ATTORNEY]: The only problem is that his client is making statements that I can hear with clarity where I am seated, and if his client wants to take the witness stand, that is fine, but I do not want him testifying from his seat. "[DEFENSE COUNSEL]: Yes. I will control my client. "THE COURT: All right." [6] "THE COURT: We will proceed again in the case of People versus Ben Lee Brown. "[DEFENSE COUNSEL]: I am not ready. "THE DEFENDANT: I am not ready. "[DEFENSE COUNSEL]: I am not ready. "THE DEFENDANT: The defendant is not ready. "THE COURT: Let the record show that the defendant is present with his counsel. The jurors are absent from the courtroom. "THE DEFENDANT: And the defendant is not ready. My counsel is not here. "THE COURT: You have a name on this piece of paper, Morris Lavine? "THE DEFENDANT: Right. "THE COURT: Have you conferred with Mr. Lavine? "THE DEFENDANT: Friday. I was trying to get in touch with him today. So, my counsel is not here. "THE COURT: Well, you do have counsel. "THE DEFENDANT: No, sir. I doesn't have counsel, Judge Sprankle. "THE COURT: Well, this attorney has been appointed by the Court. He has been representing you up until now. "THE DEFENDANT: The attorney has been appointed by the Court, but he has not been representing me, however. I am trying to get my own attorney you all won't so, I am trying to pay and get my own. "THE COURT: When Mr. Lavine appears in court, I will hear from him. "THE DEFENDANT: I am not going to go to court with this guy, Judge. "THE COURT: We will proceed and I will ask the jury to come in. "THE DEFENDANT: Take me back. "THE COURT: Just sit down, Mr. Brown. "THE DEFENDANT: I am not going to stand up and send me to the pen. "THE COURT: Mr. Brown, I only have two choices. "THE DEFENDANT: Whatever you do, it isn't going to be better than going to the pen. Whatever you want to do to me, and you using it on me, whatever you do it is all right with me. I am not going to court with this guy. "THE COURT: Mr. Brown, I will let you have a choice: either sit down and watch the proceedings or stay in the anteroom until you want to behave. Whichever you wish. "[DEFENSE COUNSEL]: The record might reflect that the defendant has left the courtroom. "THE COURT: Yes. On his own volition. We will proceed, and I will ask the jurors to come in. ".... .... .... .... .... . "THE COURT: Mr. Brown, counsel are ready to proceed. Your counsel would prefer that you be here. Just listen to me for a moment. I understand that you may want Mr. Lavine to be substituted in for you. I would suggest to you that you come over here and sit down and listen to me for just a moment. I will hear from you, then. "THE DEFENDANT: Yes. "THE COURT: Just come over here and sit down and listen. Do not say anything. You can disagree, you can quarrel with your counsel, but when Mr. Lavine comes, you will be able to explain to him what happened. If you are in the other room, you will not know what is going on. We do not have any facilities to let you know what is going on in the courtroom. "THE DEFENDANT: Yes. I am not going to sit up there, Judge, and let you this guy and this man send me back to the penitentiary. You will have to kill me. Do you understand, Judge? I know this guy and this guy don't haul me haul me all over this County to different courtrooms. He is speaking in the courtroom to try me this man ain't filed nothing at all I forfeit 4 1/2 years trying to get to the Ninth Circuit. He didn't get it. I got me me and other convicts and I am not going to sit here and listen to this guy use the same evidence over on me again. I am not going to let [defense counsel] and [district attorney] send me back to the penitentiary. You can put me wherever you want, but I am not going to sit there. I will be in the back. If you want to try me without a lawyer, I ain't got one now. I had a P.D. done pretty good for me. This guy had him shot away and not this tricker. I have been trying to get rid of him ever since the 15th of September. So, whatever you do. Judge you know I ain't had no right. I will not give equal with nobody. "THE COURT: Do you want to sit down now? "THE DEFENDANT: No, sir. I am sitting here. "[DISTRICT ATTORNEY]: I understand, Mr. Brown, you refuse to sit down? "THE DEFENDANT: You know where you can go, f____r. "THE COURT: I see no alternative to an orderly trial than to proceed in the absence of the defendant. The defendant has been given every opportunity to be present. He has a qualified and capable counsel, and we will proceed with the matter. I will hear the People's motion." (Italics added.) The Mr. Lavine mentioned in the foregoing quotations never appeared in the trial. No point is made of defendant's absence from the courtroom nor, under the circumstances, could any such point be made. (Ilinois v. Allen, 397 U.S. 337 [25 L.Ed.2d 353, 90 S.Ct. 1057].) [7] THE COURT: In the matter of People versus Ben Lee Brown, let the record show that the defendant is now in the courtroom and in the absence of the jury. Mr. Brown. I want to explain to you, that you have the opportunity to be present with your counsel as we proceed. "THE DEFENDANT: I have no counsel, Your Honor. Let the record show I have no counsel. "THE COURT: Well, despite your statement, you do have a counsel. We are proceeding with the trial and I invite you to be present if you want. We are going to proceed. Let the record show that the defendant has voluntarily walked out of the courtroom into the lockup room." [8] "THE COURT: In the matter of People versus Ben Lee Brown, let the record show that the defendant is in the court. "THE DEFENDANT: I haven't got a counsel. "THE COURT: His counsel and the Deputy District Attorney are present. All of the jurors are absent from the courtroom. "THE DEFENDANT: I haven't got a counsel. "THE COURT: All right. Your statement is now of record, and anybody who reads it will understand your position. "THE DEFENDANT: Will you let me make this statement? "THE COURT: Yes, sir. "THE DEFENDANT: Since I am speaking for myself since under 24323 I got a reversal at the Ninth Circuit April 16, 1970. The Judge Ely said only if I was to be tried and found guilty the only thing that the case would ever be would be manslaughter if and at all were competent counsel. So, therefore, I ain't got no counsel or being tried for second degree murder. Something I got almost six years in on. This man here, ..., the District Attorney, and he, [Defense Counsel], have plotted and sent me back to the penitentiary, Your Honor. I ask you for Court trial, for a Court trial because I didn't know that I could waive a jury. You told me that it is best to have a jury. This guy [Defense Counsel], this guy this [District Attorney] here and my lawyer suppose have been my lawyer said that was true. You could have tried me because you know law, Judge Sprankle, Your Honor, because I didn't know anything about law. You all have plotted and used me and for I got just nowhere in this court since I have been back from the penitentiary, and furthermore, Your Honor, you were supposed to take care of my rights. You haven't done that. You haven't done that, Judge. You haven't done that, and yesterday you carry my trial on all day long while I was in the jury room. "THE COURT: You were invited to be here. "THE DEFENDANT: I was invited out here. This man got police I never seen in my life. They have never seen me in my life. Bringing in evidence and testimony for a victim I have not killed the President of the United States I haven't done killed nobody. Why would the frame be on me? Why would they frame me like this? I have been in that stinky hole in the pen for almost six years for something I ain't done on account of my illiterate and stupid no-good to take care of myself in law I had that fellow even there to take care of me, and they he is plotting with this fellow, this thing sitting right here, Your Honor, and they done got together and wired my case back up to send me back to the penitentiary, and I haven't killed nobody, not a soul. "THE COURT: All right. Now, Mr. Brown, there is a lot of untruth to what you have just said. I have seen no conspiracy between counsel. Your counsel has acted diligently and hard in your absence and has done everything that he can think of to favor your side of the case. The reason that I called you out here was to make sure that you understand your rights and to let you know that I am trying to protect your rights to the very best of my ability. Now, one of the things that you have a right to do is to take the stand on your own behalf. In your absence, your counsel has rested his case because he did not have you here as a witness. He advised me that he had conferred with you and that together you had concluded it was in your best interest not to take the stand, which is your right, but I want it clearly understood that if you want to defend yourself, if you want to tell the jury just what you told me, that part is material and you can tell them. You can take the stand under oath. Your counsel, however, would advise you against it, and I cannot quarrel with his judgment having seen your previous attitude and demeanor while on the stand, and also your statement, but the statement you made to me is entirely different than that now before the jury, and I cannot present those matters to the jury in the absence of your testifying and in the absence of you being here in the court. According to the situation, as it now stands, you may very well be convicted of second degree murder rather than, as Judge Ely has suggested with competent counsel, and he assumed with your help and assistance, might be manslaughter. You have absented yourself from the courtroom. You have refused to cooperate with him. I invite you again to stay here and to assist your counsel and be present during the instructions and the argument. "THE DEFENDANT: How come you don't give me a Judge trial? "THE COURT: That is beside the point. I cannot unless the People waive it. "THE DEFENDANT: What People? The People is not on trial. I is on trial. "THE COURT: I do not propose to argue the matter with you. "THE DEFENDANT: I am not arguing. I am sorry. I am not arguing with you. You be the best man because you are my only hope so my voice is all I have. "THE COURT: All right. Just let me tell you the law prohibits me from giving you a Court trial, unless the People join in the waiver, and they have not seen fit to join. Besides that, your own counsel does not think that you should, and I think that he is using good judgment. "THE DEFENDANT: I haven't got a counsel. This guy is working with the District Attorney here. I have been trying to get rid of this man, Judge Sprankle, ever since the 15th of September. Why couldn't I get rid of him? "THE COURT: You cannot. "THE DEFENDANT: I cannot? "THE COURT: Now, do you want to sit here with your counsel? "THE DEFENDANT: For what? Ain't going nothing going to me back to the penitentiary but the lights on the bus. "THE COURT: Do you want to be in court or not? "THE DEFENDANT: I haven't got a counsel, and I want the Court if you think my voice hostile this is just the way that I talk. I am not hostile, but I know I'm going back to the pen. So, I'm going back in there and play some coon can. "THE COURT: All right. We will proceed and call the jury." [9] "THE COURT: Is there anything further that you want to say about the matter, Mr. Brown? "THE DEFENDANT: I would like to have my lawyer that I gave [defense counsel] to try to do something also. I gave him some law back in July, back in August. "[DEFENSE COUNSEL]: Yes. "THE DEFENDANT: And I would appreciate the Court, or would you give him my paper or would you write to the Bar? "[DEFENSE COUNSEL]: I have all of the documents set aside here that I received from Mr. Brown, and I am going to hand them to him. "THE DEFENDANT: Well, I appreciate that, and [defense counsel] further get just what I just got, Judge Sprankle, and I got crossed, and I like I told you I was going back to the joint. I asked you to allow me because I didn't have a chance with a jury in the first place. "THE COURT: You did not have a chance with a Judge, either. "THE DEFENDANT: I would have rather for you to judge me. "THE COURT: All right. "THE DEFENDANT: You know. "THE COURT: Well (interrupted). "THE DEFENDANT: The People wasn't on trial. They haven't done five or six years. "THE COURT: Well, Mr. Brown (interrupted). "THE DEFENDANT: I am just back in the pen. I appreciate tears, and I am going to the gas chamber, I got it. "THE COURT: You are not going to the gas chamber, and if you behave yourself you will be eligible for a parole very quickly. A lot of this is going to depend upon your attitude and your demeanor, and our ability to communicate with you here has not been very good. If I were judging the matter, I would have done the same thing. Had you listened to your counsel, however, matters might have been entirely different. He had a proposal that was acceptable to the District Attorney. Had the District Attorney accepted it with your compliance, the situation might have been entirely different. "THE DEFENDANT: Judge Sprankle, I asked [Defense Counsel] to file a writ of habeas corpus that I got denied on the 60 days. He did not file that. I asked him to file a 1538.5. "THE COURT: That is what I am telling you, Mr. Brown. "THE DEFENDANT: I am not "THE COURT: He has done a lot for you. You would not let him do it for you. "THE DEFENDANT: He sure is. "THE COURT: Are you telling him how to run his case? That is exactly what you are doing right now. You are telling him what to do. "THE DEFENDANT: He got me to the joint back after five years, Judge Sprankle. I already done got found guilty. "THE COURT: I am suggesting to you he might have been able to do better had you followed his advice. "THE DEFENDANT: I talked to him once back in September. "THE COURT: That is not true. That is not true, Mr. Brown. "THE DEFENDANT: That is not true, Mr. Brown. Okay. "THE COURT: The defendant having waived arraignment for judgment, and there appearing to be no legal cause why sentence should not be imposed, it will be the judgment of the Court that the defendant be sentenced to the State Prison for the period prescribed by law. That he be delivered by the Sheriff to the Director of Corrections to serve that sentence, and the defendant should receive credit for the time that he has been in the State Prison on the prior commitment. "[DEFENSE COUNSEL]: Yes. If your Honor pleases, I would like the record to reflect, if possible, the following: namely, that I am not going to handle any appeal for Mr. Brown, but that under the provisions of law I felt it might [sic] obligation to prepare, and I do have an original and three copies, of a pro per notice of appeal for Mr. Brown to do whatever he wishes with. "THE COURT: All right. You may deliver that. "[DEFENSE COUNSEL]: And I would like to indicate for the record that if he wishes to appeal, it should be done within 10 days of today. "THE DEFENDANT: Is there any way I can fill the papers now for appeal because where I have is no way. "[DEFENSE COUNSEL]: I am also handing him all of my file, except my private notes to the defendant, Your Honor. "THE COURT: All right. "(Whereupon, the proceedings in the above-entitled matter were concluded.)"	{ "pile_set_name": "FreeLaw" }
Opinion issued April 4, 2013 In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00985-CR ——————————— ERIK DELGADO GARCIA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1253927 MEMORANDUM OPINION A jury found appellant Erik Delgado Garcia guilty of the offense of reckless bodily injury to a child.1 During the punishment phase, the jury found the allegations in one enhancement paragraph to be true and assessed appellant’s punishment at 40 years in prison with a $4,000 fine. The trial court also imposed court costs against appellant in the judgment. Presenting one issue on appeal, appellant contends that there is “insufficient evidence” to support the court costs imposed by the trial court. We affirm. Background In the judgment of conviction, the trial court ordered appellant to pay court costs of $275.00.2 On appeal, appellant filed a “designation of Clerk’s Record” in which he included a request for “[t]he bill of costs reflecting all fees and costs assigned to Defendant post-conviction.” The clerk’s record did not originally contain a bill of costs. After the parties filed their original briefing, we ordered the district clerk’s office to supplement the record with a bill of costs. The district 1 See TEX. PENAL CODE ANN. § 22.04 (Vernon Supp. 2012). 2 The trial in this case, including the punishment phase, lasted for five days. Because appellant has limited his issue on appeal to one challenging court costs, we do not discuss the evidence offered at trial or the facts underlying the offense. 2 clerk filed a supplemental record containing a bill of costs. The bill reflects costs and fees totaling $275, the same amount the trial court ordered appellant to pay. Court Costs In his sole issue, appellant argues that the evidence is insufficient to support the assessment of $275 in court costs. In his original brief, appellant’s sufficiency argument was based on the absence of a bill of costs in the clerk’s record. Appellant asserted that “because he has been given no notice of the items of costs assessed against him, he has had no opportunity to be heard on the correctness of those costs.” Appellant argued this rose to a violation of his right to due process under the federal constitution and a violation of his right to due course of law under the state constitution. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19. Appellant also complained that “there is no way to determine whether the assessed costs include attorney’s fees.” See Mayer v. State, 309 S.W.3d 552, 553 (Tex. Crim. App. 2010) (holding that, if a defendant is found to be indigent at outset of trial, some evidence must presented to trial court showing a change in his financial circumstances before attorney’s fees can be assessed against him). 3 3 In its original response brief, the State asserted that appellant’s complaint is not ripe for appellate review. The ripeness doctrine protects against judicial interference until a decision has been formalized and its effects felt in a concrete way by the challenging parties. State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 504 (Tex. Crim. App. 2011). To determine whether an issue is ripe for adjudication, we evaluate both the 3 As mentioned, since appellant filed his opening brief, we ordered the record supplemented with a bill of costs. The costs bill was generated and signed by the district clerk’s office after the trial court rendered judgment. 4 The costs bill itemizes the fees and costs assessed against appellant. fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Id. The State asserted that the issue is not ripe because appellant has not been asked to pay the costs. The State pointed out that appellant is not required to pay the court costs until a bill of costs has been produced. See TEX. CODE CRIM. PROC. ANN. art. 103.001 (Vernon 2010) (providing that a cost is not payable by person charged until a bill of costs is produced or ready to be produced). However, since the State filed its brief, the record has been supplemented with a bill of costs. The State also intimated that the issue is not ripe because Government Code section 501.014(e) requires the trial court to issue a notification of withdrawal before funds may be withdrawn from an inmate account. See TEX. GOV’T CODE ANN. § 501.014(e) (Vernon 2012). But Government Code section 501.014(e)(4) also indicates that a withdrawal notification can be issued to pay “in full . . . all orders for court fees and costs.” Id. Because the amount of costs ordered in the judgment may serve as a basis to issue a withdrawal notification, and a bill of costs has been produced, appellant’s challenge to the portion of the judgment ordering him to pay costs is ripe for appellate review. Additionally, the State cites Code of Criminal Procedure 103.008, which provides that a defendant has one year after the date of the final disposition of his case, in which costs were imposed, to file a motion seeking to correct any error in the costs. See TEX. CODE CRIM. PROC. ANN. art. 103.008(a) (Vernon 2006). Unlike the State, we do not perceive the availability of additional or alternative remedies as negating the ripeness of appellant’s direct appellate challenge to costs assessed in the judgment. 4 The document contained in the supplemental record indicates that it is from the Harris County Clerk’s Justice Information Management Systems, commonly referred to by its acronym “JIMS.” The document, entitled “JIMS Cost Bill Assessment,” itemizes the various costs assessed in appellant’s case. The costs are listed on two pages. We note that Code of Criminal Procedure article 103.009(a) requires the clerk of a court to keep a fee record; however, there is no indication that the fee record cannot be kept electronically. See TEX. CODE CRIM. PROC. ANN. art. 103.009(a) (Vernon 2006). Article 103.009(b) also provides that any person may inspect such fee record. Id. art. 103.009(b); see, e.g., Gonzales v. State, 07–10–00383–CR, 2012 WL 3553004, at 2 (Tex. App.—Amarillo Aug. 17, 2012, pet. ref’d) (mem. op., not designated for publication) (affirming judgment assessing court costs in case in which appellant had 4 A defendant convicted of a felony offense must pay certain statutorily mandated costs and fees, which vary depending on the type of offense, the underlying facts, and procedural history of the case. See Owen v. State, 352 S.W.3d 542, 546 n.5 (Tex. App.—Amarillo 2011, no pet.) (providing an extensive list of Texas statutes requiring convicted persons to pay costs and fees). The following are the costs and fees assessed against appellant as identified in the bill of costs in the supplemental clerk’s record, along with the corresponding statutory provision mandating their assessment: • $40 “clerk’s fee” (See id. art. 102.005(a) (“A defendant convicted of an offense in a county court, a county court at law, or a district court shall pay for the services of the clerk of the court a fee of $40.”)). • $5 “security fee” (See id. art. 102.017(a) (“A defendant convicted of a felony offense in a district court shall pay a $5 security fee as a cost of court.”)). • $4 “jury reimbursement fee” (See id. art. 102.0045(a) (“A person convicted of any offense . . . shall pay as a court cost, in addition to all other costs, a fee of $4 to be used to reimburse counties for the cost of juror services as provided by Section 61.0015, Government Code.”)). • $25 “records preservation fee” (See id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district court shall pay a fee of $25 for records management and preservation services performed by the county as required by Chapter 203, Local Government Code.”)). • $2 “support of [indigent] defense” (See TEX. LOC. GOV’T CODE ANN. § 133.107(a) (Vernon Supp. 2012) (“A person convicted of any challenged costs assessment on ground that costs were improper because the record contained no indication how costs were determined; court relied, in part, on section 103.009 provision permitting inspection of fee record). 5 offense . . . shall pay as a court cost, in addition to other costs, a fee of $2 to be used to fund indigent defense representation through the fair defense account established under Section 79.031, Government Code.”)). • $6 “support judiciary fee[]” (See id. § 133.105(a) (Vernon 2008) (“A person convicted of any offense . . . shall pay as a court cost, in addition to all other costs, a fee of $6 to be used for court-related purposes for the support of the judiciary.”)). • $133 “consolidate court cost” (See id. § 133.102(a)(1) (Vernon Supp. 2012) (requiring that a person convicted of an offense shall pay as a court cost, in addition to all other costs, “consolidated court fees” in the amount of $133 on conviction of a felony). The bill of costs also lists a sheriff’s fee of $60. The record supports assessment of each of the costs constituting the sheriff’s fee, as follows: • $5 “commitment” and $5 “release” (See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer . . . $5 for commitment or release . . . .”)); and • $5 “arrest without warrant or capias” (See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer . . . $5 for commitment or release . . . .”)). 5 5 In his Second Objection to the supplemental record, appellant contends that “the Code of Criminal Procedure mandates that there be a fee record for any Sheriff’s costs.” See TEX. CODE CRIM. PROC. ANN. art. 103.009 (“Each clerk of a court, county judge, justice of the peace, sheriff, constable, and marshal shall keep a fee record.”). We addressed this argument on rehearing in Cardenas. There, as in this case, appellant “presents no authority that an article 103.009 fee record must be filed with a trial court to support the inclusion of a sheriff’s fees among the costs of court chargeable to a defendant convicted of a crime.” Cardenas v. State, 01- 11-01123-CR, 2013 WL 1164365, at 6 n.10 (Tex. App.—Houston [1st Dist.] March 21, 2013, no pet. h.). In addition, as in Cardenas, appellant “also presents 6 • 50 “serving capias” (TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (Vernon Supp. 2012) (“A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer . . . $50 for executing or processing an issued arrest warrant, capias, or capias pro fine. . . .”)). These fees and costs total $275, the amount ordered in the judgment. The bill of costs does not list attorney’s fees as an assessed cost. After the district clerk filed the supplemental record containing the bill of costs, we permitted the parties to file additional briefing. In his supplemental brief, appellant neither asserts that the costs assessed against him are not authorized by statute nor does he dispute that Texas law requires that he pay them. He also does not contend that the assessed costs are inapplicable to the underlying facts and circumstances of this case. Instead, appellant indicates that it was not appropriate for a bill of costs to be “created” after the trial court had rendered judgment. Code of Criminal Procedure article 103.006 provides that “[i]f a criminal action . . . is appealed, an officer of the court shall certify and sign a bill of costs stating the costs that have accrued and send the bill of costs to the court to which the action or proceeding is transferred or appealed.” TEX. CODE PROC. ANN. art. 103.006 (Vernon 2006). Pursuant to the language of article 103.006, a bill of costs shall be certified, signed, and sent on the appeal of a criminal action, which no argument that the events described in the appellate record did not actually occur, or that the corresponding costs were not legally authorized or were inaccurately assessed.” Id. 7 necessarily occurs after rendition of a final judgment. Thus, the statute appears to contemplate the creation of a bill of costs after rendition of the judgment; that is, at the time the judgment is appealed. See Cardenas v. State, 01-11-01123-CR, 2013 WL 1164365, at 4 (Tex. App.—Houston [1st Dist.] March 21, 2013, no pet. h.). Appellant cites Johnson v. State for the proposition that a bill of costs must be created before rendition of judgment. 389 S.W.3d 513, 515 n.1 (Tex. App.— Houston [14th Dist.] 2012, pet. filed). In Cardenas, we distinguished Johnson, noting that the Johnson court had not addressed article 103.006 or Rules of Appellate Procedure 34.5 and 44.3, which permit supplementation of the record. Cardenas, 2013 WL 1164365, at 5. 6 In addition, appellant contends that “the newly created bill of costs . . . violates” not only the holding in Johnson but also the following unpublished opinions: (1) Tafolla v. State, No. 06–12–00122–CR, 2012 WL 6632767 (Tex. App.—Texarkana Dec. 20, 2012, no pet.); (2) Solomon v. State, No. 04–12– 00239–CR, 2012 WL 6604497 (Tex. App.—San Antonio Dec. 19, 2012, no. pet.); and (3) Cuba v. State, No. 06–12–00106–CR, 2012 WL 6152965 (Tex. App.— 6 We also held in Cardenas that it is appropriate for an appellate court to order a supplemental record containing a bill of costs. We noted that “the rules of appellate procedure provide that ‘[a] court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.’” 2013 WL 1164365, at 4 (citing TEX. R. APP. P. 44.3.). We further explained that we are specifically authorized to direct the trial court clerk to supplement the record with any relevant omitted item. Id. (citing TEX. R. APP. P. 34.5(c)(1), (3)). 8 Texarkana Dec 11, 2012, no pet.). However, as we explained in Cardenas, “[b]ecause we ordered the supplementation of the appellate record to request a bill of costs, the courts in Johnson, Tafolla, and Solomon confronted different procedural circumstances, and their reasoning is inapplicable to the circumstances before us.” Cardenas, 2013 WL 1164365, at 7. The same can be said for the court in Cuba, 2012 WL 6152965, at 1. “To the extent any party to those cases may have requested, or those courts may have considered, the justifications for ordering a supplemental record as explained in this opinion, none of those courts explained why supplementation is not authorized by article 103.006 and appellate rules 34.5 and 44.3, as we believe it is.” Cardenas, 2013 WL 1164365, at 7. Appellant also contends that “[d]ue process is thwarted if the clerk can create a costs bill after the conviction and supplement the record with it.” Appellant relies on the Harrell v. State in making this argument. 286 S.W.3d 315 (Tex. 2009). In Cardenas, we explained, “Harrell is procedurally distinguishable because it was a civil proceeding filed by a prison inmate who challenged the withdrawal of funds from his trust account to pay court costs, but did not challenge the amount of costs assessed.” Cardenas, 2013 WL 1164365, at *5 (citing Harrell, 286 S.W.3d at 316–17). We acknowledged that an appellant in a direct criminal appeal, challenging the assessment of court costs, may raise the issue on appeal even though he did not make the objection in the trial court. Id. For this reason, 9 we stated that “Cardenas was not procedurally prejudiced by his alleged inability to raise his objections in the trial court.” Id. We also noted that there is a separate procedural avenue to seek correction of any error in the assessed costs. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 103.008(a) (“On the filing of a motion by a defendant not later than one year after the date of the final disposition of a case in which costs were imposed, the court in which the case is pending or was last pending shall correct any error in the costs.”)). We explained that “Harrell did not address the article 103.008 procedure for correcting court costs. And in any case, that opinion does not purport to specify the only means by which a criminal defendant can contest an assessment of court costs.” Id. In Cardenas, we held that an appellant’s ability to contest the assessment of costs for the first time on appeal, and the availability of the article 103.008 review process, provide an appellant with adequate due process, irrespective of his alleged inability to object in the trial court to the specific fees identified in the later-generated bill of costs. See id. Based on the reasoning in Cardenas, we hold that appellant has not been denied due process with respect to his ability to challenge the basis of the costs assessed in the judgment. See id. The supplemental record identifies the basis for the court costs, totaling $275, assessed in the judgment. The fees listed in the bill 10 of costs are statutorily mandated as discussed supra. Appellant does not contend that any of the fees are not applicable to the facts and circumstances of this case. 7 We overrule appellant’s sole issue. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Justices Jennings, Higley, and Sharp. Do not publish. TEX. R. APP. P. 47.2(b). 7 In his supplemental brief, appellant asserts that “one objection [appellant] could have offered if he had been privy to the court costs bill when assessed was constitutionality of the $133 charge for the ‘consolidate court cost.’” He asserts “such a constitutional challenge cannot be raised on appeal.” As mentioned, the $133 fee is mandated by Local Government Code section 133.102(a)(1). That section is entitled “Consolidated Fees on Conviction” and provides, “A person convicted of an offense shall pay as a court cost, in addition to all other costs . . . $133 on conviction of a felony. See TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (Vernon Supp. 2012). Appellant was convicted of a felony and is thus required by statute to pay the $133 fee. The trial court’s authority to assess the $133 fee as part of the court costs in the judgment is section 133.102(a)(1), mandating that appellant, a convicted felon, pay the fee, irrespective of whether the trial court had the costs bill in front of it when it rendered judgment. In any event, appellant has not briefed his constitutionality challenge to the $133 fee with sufficient specificity for us to evaluate either the preservation or the merits aspects of such challenge. See TEX. R. CIV. P. 38.1(i). 11	{ "pile_set_name": "FreeLaw" }
571 So.2d 341 (1990) John Herman McCLELLAN v. STATE. 6 Div. 221. Court of Criminal Appeals of Alabama. March 16, 1990. Rehearing Denied April 27, 1990. John Posey, Double Springs, for appellant. Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee. BOWEN, Judge. John Herman McClellan was convicted for sexual abuse in the second degree in violation of Alabama Code 1975, § 13A-6-67, and sentenced to six months in the county jail. On this appeal from that conviction, McClellan contends that his conviction should be reversed because of the admission of evidence of an uncharged offense. We agree. Prior to trial, the defendant filed a motion in limine seeking an order to prevent the State from introducing "any evidence of any and all unindicted acts of sexual misconduct of Defendant with anyone other than the alleged victim in this case." The record does not show exactly when this motion was denied but only that it was denied prior to the testimony of the State's rebuttal witness, J.W. The State's evidence tends to show that the defendant sexually abused his 14-year-old stepdaughter, M.K., on April 24, 1989. On its case in rebuttal, the State presented the testimony of J.W. She testified that she was a cousin of the defendant's wife (the mother of the victim in this case). The substance of her testimony was that eight years before, when she was 14 years of age, the defendant touched her in a very similar manner and under very similar circumstances 342 to the manner in which the defendant abused M.K. in this case. The record shows that the subject of the defendant's sexual abuse of J.W. had previously been injected into this case without objection. On direct examination, the victim's mother, P.M., testified that the defendant had never done anything to either her children or the defendant's own daughter that would indicate he was not a good father. On cross-examination by the district attorney, the following occurred: "Q. And you have testified that he had always been a good father. "A. Yes, sir. "Q. And you had never had any information contrary to that? "A. Yes, sir. "Q. That he had never done anything to any of the children or anybody else in your custody and care, right? "A. Right. "Q. Have you ever had anybodynot what you know now because we have established about that criterianot what you know; but, have you ever had reason to suspect otherwise? "A. No, sir. "Q. Ever? "A. No. "Q. Did you have other children to come visit and stay overnight? "A. Yes, sir. "Q. Any reports from any of those children come back to you? "A. They never did come to me about it if they did. "Q. You have never had that reported to you ever? "A. Just hearsay. "Q. Just hearsay? "A. Uh-huh. "Q. That's what I am saying, just hearsay; but, you didn't believe that either, did you? "A. No, sir. "Q. So you discounted it. On how many occasions have you gotten hearsay reports from children who have stayed over there relative to that? "A. Two. "Q. Did you ever discuss it with your husband? "A. We talked about it. "Q. What did he tell you? "A. Hewell, with Julie he said he put his hand over on her leg, and with Jennifer he didn't do anything. "Q. All he did was put his hand over on her leg and with the other one he didn't do anything? "A. Yes, sir. "Q. How old were these children? Of course, I believe he also said it was kind of their fault, didn't he, that they led him on? "A. Yes, sir. "Q. How old were these children at that time? "A. Thirteen or fourteen." On redirect examination, Mrs. P.M. testified that the defendant "has been a good father to her children" and that he never did anything to hurt them. On further cross-examination by the prosecutor, the following occurred: "Q. The report that [M.K.] made to you about the particulars of the incident, did it sound like the particulars of any other reports you had ever heard? "A. Yes, sir. "Q. It did? "A. Yes, sir. "Q. In fact the method of this occurrence was identical to the other report? "A. Yes, sir. "MR. POSEY [Defense Counsel]: I object to this. "Irrelevant, impermissible evidence. "THE COURT: Overruled. "Q. And, of course, you had never discussed these other reports with [M.K.]? "A. No, sir. "Q. She had no way of knowing about them? "A. No, sir. "Q. And yet you didn't attach any credibility to a report from your daughter which is identical, that she couldn't have known about this other thing, that's identical 343 to an allegation that your younger sisteror what was the relationship? "A. Younger cousins. "Q. Younger cousins had made to you years before that? "A. No, sir. "Q. You just didn't attach anything to that? "A. I felt like she was having a dream about her real dad because two and a half years ago "Q. No, what I am asking you, ma'am, you didn't attach any significance at all to the similarities of those two reports? "A. No, sir." On redirect examination by defense counsel, the following occurred: "Q. Had [M.K.] ever talked to you about [M.K.'s `real father'] sexually molesting her? "A. Yes, sir. "Q. When did that occur? "A. In 1986. "Q. All right. And when [M.K.] said that her real father had sexually molested her, was that story similar to the one she had given in this case? "A. Yes, sir. "Q. In fact exactly the same? "A. Yes, sir. "Q. Is that true? "A. Yes, sir. "Q. It don't involve [the defendant] at all, does it? "A. No, sir." The defendant testified in his own behalf and denied ever sexually abusing M.K. and denied the particular incident in question. On cross-examination, the defendant admitted, without objection, that he had heard rumors that he had sexually abused other children, but denied that he ever had a conversation with his wife about the sexual abuse of his wife's cousins. The defendant specifically denied touching either J.W. or J.A. (the cousins) while they were sleeping. All of this testimony was admitted without objection. Before J.W. testified for the State in its case on rebuttal, defense counsel made the following objection: "MR. POSEY: Defendant objects to the testimony of J.W. regarding all unindicted acts of sexual misconduct involving someone other than the alleged victim in the indictment. That testimony being alleged acts that occurred between the defendant and J.W. Said testimony is prejudicial to the defendant and its prejudicial effect outweighs any probative value. "Second objection to the testimony of J.W. is that the testimony was used to impeach testimony of a prior witness regarding a collateral matter, that said testimony was prejudicial and its prejudicial effect outweighed its probative value." The record does not reflect a ruling by the trial judge on this objection. Defense counsel again objected immediately before J.W. testified to the conduct of the defendant: "I place an objection at this time. This has nothing to do with the case at bar. It has nothing to do with the present time and I object. Irrelevant." The trial judge overruled this objection. This objection should have been sustained. The testimony of J.W. was not admissible to impeach any prior witness. Her testimony was not cumulative of testimony already before the jury. The testimony adduced from the defendant and his wife was in the nature of hearsay reports of what they had heard. On its case in rebuttal, the State was attempting to prove that what they had heard was true. This was not permissible. The testimony of J.W. constituted evidence of a collateral offense for which the defendant had not been indicted. The State has never argued, either at trial or on appeal, that this testimony was admissible under one of the exceptions to the exclusionary rule prohibiting this type of evidence. Under Anonymous v. State, 507 So.2d 972, 975 (Ala.1987), the identity of the defendant was not in issue: "The identity of the person who actually committed the acts with which the defendant was charged was not at issue. The defendant did not argue that `someone *344 else committed the acts with which he was charged'; instead, he merely denied that the acts ever occurred. Therefore, because there was no `real and open' issue concerning identity, the collateral acts could not be admissible as going toward such an issue." See also Staten v. State, 547 So.2d 607 (Ala.1989). In this case, there was also no "real and open issue" of intent. The victim testified that when she awoke the defendant was touching her private parts under her panties. "Even when the crime charged is one requiring specific intent, the evidence still may not be admitted where competent evidence links the defendant with the crime charged and the jury can infer the requisite intent." Gamble & James, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 134 (1988) (citing Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983)). "Evidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant. It interjects a collateral issue into the case which may divert the minds of the jury from the main issue.... Therefore, the admission of such evidence constitutes reversible error." Cofer, 440 So.2d at 1124. Accord, Anonymous, 507 So.2d at 974. "In summary, under the new methodology of the Alabama Supreme Court, evidence of other crimes or bad acts committed by the defendant is presumptively prejudicial or prima facie inadmissible to prove the defendant's intent or identity. To be admissible, such evidence `must be both relevant and material,' or the defendant's intent or the identity of the perpetrator must be a real issue. There is no need for such evidence to prove intent when the defendant is not charged with a crime requiring specific intent. Even when the crime charged is one requiring specific intent, the evidence still may not be admitted where competent evidence links the defendant with the crime charged and the jury can infer the requisite intent." Gamble & James, 40 Ala.L.Rev. at 133-34 (footnotes omitted). Additionally, under the circumstances of this case, we hold that the evidence that the defendant sexually abused a child 8 years before the subject charge "is far too remote to satisfy the requisite test of relevancy." Ex parte Tomlin, 548 So.2d 1341, 1343 (Ala.1989) ("Evidence that the defendant committed two drug-related offenses more than 10 years before the subject charge is far too remote to satisfy the requisite test of relevancy."). This Court has previously warned against the highly prejudicial impact of other offense evidence in prosecutions involving sex offenses. See Jenkins v. State, 472 So.2d 1128, 1129-30 (Ala.Cr.App.1985). The State argues, not that this evidence was admissible, but that the defendant failed to preserve this issue for review by proper objection. Defense counsel did fail to make a number of objections. He thereby permitted the admission of highly prejudicial evidence which should not have been admitted over proper and timely objection. Compare Johnson v. State, 260 Ala. 276, 280, 69 So.2d 854, 857 (1954) ("Where a witness testifies as to the general reputation or character of the defendant, the knowledge of the witness as to such reputation or character may be tested on cross-examination by asking him if he has not heard of specific acts of bad conduct on the part of the accused. But the witness may not be interrogated as to the fact of such particular acts."). However, J.W.'s testimony as to the fact that the defendant abused her is not cumulative of the prior testimony of the defendant and his wife that they had heard rumors or reports of the defendant's abuse. We cannot consider the admission of J.W.'s testimony harmless error. The judgment of the circuit court is reversed and this cause is remanded for further proceedings not inconsistent with this opinion. REVERSED AND REMANDED. All Judges concur.	{ "pile_set_name": "FreeLaw" }
401 U.S. 222 (1971) HARRIS v. NEW YORK. No. 206. Supreme Court of United States. Argued December 17, 1970 Decided February 24, 1971 CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. Joel Martin Aurnou argued the cause and filed a brief for petitioner. James J. Duggan argued the cause for respondent. With him on the brief was Carl A. Vergari. Sybil H. Landau argued the cause for the District Attorney of New York County as amicus curiae urging affirmance. With her on the brief were Frank S. Hogan, pro se, and Michael R. Juviler. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted the writ in this case to consider petitioner's claim that a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution's case in chief under Miranda v. Arizona, 384 U. S. 436 (1966), may not be used to impeach his credibility. The State of New York charged petitioner in a two-count indictment with twice selling heroin to an undercover 223 police officer. At a subsequent jury trial the officer was the State's chief witness, and he testified as to details of the two sales. A second officer verified collateral details of the sales, and a third offered testimony about the chemical analysis of the heroin. Petitioner took the stand in his own defense. He admitted knowing the undercover police officer but denied a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on January 6 but claimed it was baking powder and part of a scheme to defraud the purchaser. On cross-examination petitioner was asked seriatim whether he had made specified statements to the police immediately following his arrest on January 7statements that partially contradicted petitioner's direct testimony at trial. In response to the cross-examination, petitioner testified that he could not remember virtually any of the questions or answers recited by the prosecutor. At the request of petitioner's counsel the written statement from which the prosecutor had read questions and answers in his impeaching process was placed in the record for possible use on appeal; the statement was not shown to the jury. The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be considered only in passing on petitioner's credibility and not as evidence of guilt. In closing summations both counsel argued the substance of the impeaching statements. The jury then found petitioner guilty on the second count of the indictment.[1] The New York Court of Appeals affirmed in a per curiam opinion, 25 N. Y. 2d 175, 250 N. E. 2d 349 (1969). At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, 224 conceding that they were inadmissible under Miranda v. Arizona, 384 U. S. 436 (1966). The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary. Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. In Walder v. United States, 347 U. S. 62 (1954), the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes. "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment. "[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility." 347 U. S., at 65. 225 It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Walder. Petitioner's testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief. Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U. S. 77 (1969); cf. Dennis v. United States, 384 U. S. 855 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.[2] Had 226 inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements. Affirmed. MR. JUSTICE BLACK dissents. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting. It is conceded that the question-and-answer statement used to impeach petitioner's direct testimony was, under Miranda v. Arizona, 384 U. S. 436 (1966), constitutionally inadmissible as part of the State's direct case against petitioner. I think that the Constitution also denied the State the use of the statement on cross-examination to impeach the credibility of petitioner's testimony given in his own defense. The decision in Walder v. United States, 347 U. S. 62 (1954), is not, as the Court today holds, dispositive to the contrary. Rather, that case supports my conclusion. The State's case against Harris depended upon the jury's belief of the testimony of the undercover agent that petitioner "sold" the officer heroin on January 4 and again on January 6. Petitioner took the stand and flatly denied having sold anything to the officer on January 4. He countered the officer's testimony as to the January 6 sale with testimony that he had sold the officer two glassine bags containing what appeared to be heroin, but that actually the bags contained only baking powder intended to deceive the officer in order to obtain $12. 227 The statement contradicted petitioner's direct testimony as to the events of both days. The statement's version of the events on January 4 was that the officer had used petitioner as a middleman to buy some heroin from a third person with money furnished by the officer. The version of the events on January 6 was that petitioner had again acted for the officer in buying two bags of heroin from a third person for which petitioner received $12 and a part of the heroin. Thus, it is clear that the statement was used to impeach petitioner's direct testimony not on collateral matters but on matters directly related to the crimes for which he was on trial.[1] Walder v. United States was not a case where tainted evidence was used to impeach an accused's direct testimony on matters directly related to the case against him. In Walder the evidence was used to impeach the accused's testimony on matters collateral to the crime charged. Walder had been indicted in 1950 for purchasing and possessing heroin. When his motion to suppress use of the narcotics as illegally seized was granted, the Government dismissed the prosecution. Two years later Walder was indicted for another narcotics violation completely unrelated to the 1950 one. Testifying in his own defense, he said on direct examination that he had never in his life possessed narcotics. On cross-examination he denied that law enforcement officers had seized narcotics from his home two years earlier. The Government was then permitted to introduce the testimony of one of the officers involved in the 1950 seizure, that when he had raided Walder's home at that time he had seized narcotics there. 228 The Court held that on facts where "the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics," 347 U. S., at 65, the exclusionary rule of Weeks v. United States, 232 U. S. 383 (1914), would not extend to bar the Government from rebutting this testimony with evidence, although tainted, that petitioner had in fact possessed narcotics two years before. The Court was careful, however, to distinguish the situation of an accused whose testimony, as in the instant case, was a "denial of complicity in the crimes of which he was charged," that is, where illegally obtained evidence was used to impeach the accused's direct testimony on matters directly related to the case against him. As to that situation, the Court said: "Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." 347 U. S., at 65. From this recital of facts it is clear that the evidence used for impeachment in Walder was related to the earlier 1950 prosecution and had no direct bearing on "the elements of the case" being tried in 1952. The evidence tended solely to impeach the credibility of the defendant's direct testimony that he had never in his life possessed heroin. But that evidence was completely unrelated to the indictment on trial and did not in any way interfere with his freedom to deny all elements of that case against him. In contrast, here, the evidence used for impeachment, a statement concerning the details of the very sales alleged in the indictment, was directly related to the case against petitioner. 229 While Walder did not identify the constitutional specifics that guarantee "a defendant the fullest opportunity to meet the accusation against him . . . [and permit him to] be free to deny all the elements of the case against him," in my view Miranda v. Arizona, 384 U. S. 436 (1966), identified the Fifth Amendment's privilege against self-incrimination as one of those specifics.[2]230 That privilege has been extended against the States. Malloy v. Hogan, 378 U. S. 1 (1964). It is fulfilled only when an accused is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will," id., at 8 (emphasis added). The choice of whether to testify in one's own defense must therefore be "unfettered," since that choice is an exercise of the constitutional privilege, Griffin v. California, 380 U. S. 609 (1965). Griffin held that comment by the prosecution upon the accused's failure to take the stand or a court instruction that such silence is evidence of guilt is impermissible because it "fetters" that choice"[i]t cuts down on the privilege by making its assertion costly." Id., at 614. For precisely the same reason the constitutional guarantee forbids the prosecution to use a tainted statement to impeach the accused who takes the stand: The prosecution's use of the tainted statement "cuts down on the privilege by making its assertion costly." Ibid. Thus, the accused is denied an "unfettered" choice when the decision whether to take the stand is burdened by the risk that an illegally obtained prior statement may be introduced to impeach his direct testimony denying complicity in the crime charged against him.[3] We settled this proposition in Miranda where we said: "The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner . . . . [S]tatements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial . . . . These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for 231 any other statement." 384 U. S., at 476-477 (emphasis added). This language completely disposes of any distinction between statements used on direct as opposed to cross-examination.[4] "An incriminating statement is as incriminating when used to impeach credibility as it is when used as direct proof of guilt and no constitutional distinction can legitimately be drawn." People v. Kulis, 18 N. Y. 2d 318, 324, 221 N. E. 2d 541, 543 (1966) (dissenting opinion). The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system. The "essential mainstay" of that system, Miranda v. Arizona, 384 U. S., at 460, is the privilege against self-incrimination, which for 232 that reason has occupied a central place in our jurisprudence since before the Nation's birth. Moreover, "we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. . . . All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government . . . must accord to the dignity and integrity of its citizens." Ibid. These values are plainly jeopardized if an exception against admission of tainted statements is made for those used for impeachment purposes. Moreover, it is monstrous that courts should aid or abet the law-breaking police officer. It is abiding truth that "[n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U. S. 643, 659 (1961). Thus, even to the extent that Miranda was aimed at deterring police practices in disregard of the Constitution, I fear that today's holding will seriously undermine the achievement of that objective. The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State's direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution. I dissent. NOTES [1] No agreement was reached as to the first count. That count was later dropped by the State. [2] If, for example, an accused confessed fully to a homicide and led the police to the body of the victim under circumstances making his confession inadmissible, the petitioner would have us allow that accused to take the stand and blandly deny every fact disclosed to the police or discovered as a "fruit" of his confession, free from confrontation with his prior statements and acts. The voluntariness of the confession would, on this thesis, be totally irrelevant. We reject such an extravagant extension of the Constitution. Compare Killough v. United States, 114 U. S. App. D. C. 305, 315 F. 2d 241 (1962). [1] The trial transcript shows that petitioner testified that he remembered making a statement on January 7; that he remembered a few of the questions and answers; but that he did not "remember giving too many answers." When asked about his bad memory, petitioner, who had testified that he was a heroin addict, stated that "my joints was down and I needed drugs." [2] Three of the five judges of the Appellate Division in this case agreed that the State's use of petitioner's illegally obtained statement was an error of constitutional dimension. People v. Harris, 31 App. Div. 2d 828, 298 N. Y. S. 2d 245 (1969). However, one of the three held that the error did not play a meaningful role in the case and was therefore harmless under our decision in Chapman v. California, 386 U. S. 18 (1967). He therefore joined in affirming the conviction with the two judges who were of the view that there was no constitutional question involved. 31 App. Div. 2d, at 830, 298 N. Y. S. 2d, at 249. I disagree that the error was harmless and subscribe to the reasoning of the dissenting judges, id., at 831-832, 298 N. Y. S. 2d at 250: "Under the circumstances outlined above, I cannot agree that this error of constitutional dimension was `harmless beyond a reasonable doubt' (Chapman v. California, 386 U. S. 18, 24). An error is not harmless if `there is a reasonable possibility that the evidence complained of might have contributed to the conviction' (Fahy v. Connecticut, 375 U. S. 85, 86-87). The burden of showing that a constitutional error is harmless rests with the People who, in this case, have not even attempted to assume that demonstration (Chapman v. California, supra). Surely it cannot be said with any certainty that the improper use of defendant's statement did not tip the scales against him, especially when his conviction rests on the testimony of the same undercover agent whose testimony was apparently less than convincing on the January 4 charge (cf. Anderson v. Nelson, 390 U. S. 523, 525). On the contrary, it is difficult to see how defendant could not have been damaged severely by use of the inconsistent statement in a case which, in the final analysis, pitted his word against the officer's. The judgment should be reversed and a new trial granted." The Court of Appeals affirmed per curiam on the authority of its earlier opinion in People v. Kulis, 18 N. Y. 2d 318, 221 N. E. 2d 541 (1966). Chief Judge Fuld and Judge Keating dissented in Kulis on the ground that Miranda precluded use of the statement for impeachment purposes, 18 N. Y. 2d, at 323, 221 N. E. 2d, at 542. [3] It is therefore unnecessary for me to consider petitioner's argument that Miranda has overruled the narrow exception of Walder admitting impeaching evidence on collateral matters. [4] Six federal courts of appeals and appellate courts of 14 States have reached the same result. United States v. Fox, 403 F. 2d 97 (CA2 1968); United States v. Pinto, 394 F. 2d 470 (CA3 1968); Breedlove v. Beto, 404 F. 2d 1019 (CA5 1968); Groshart v. United States, 392 F. 2d 172 (CA9 1968); Blair v. United States, 130 U. S. App. D. C. 322, 401 F. 2d 387 (1968); Wheeler v. United States, 382 F. 2d 998 (CA10 1967); People v. Barry, 237 Cal. App. 2d 154, 46 Cal. Rptr. 727 (1965), cert. denied, 386 U. S. 1024 (1967); Velarde v. People, 171 Colo. 261, 466 P. 2d 919 (1970); State v. Galasso, 217 So. 2d 326 (Fla. 1968); People v. Luna, 37 Ill. 2d 299, 226 N. E. 2d 586 (1967); Franklin v. State, 6 Md. App. 572, 252 A. 2d 487 (1969); People v. Wilson, 20 Mich. App. 410, 174 N. W. 2d 79 (1969); State v. Turnbow, 67 N. M. 241, 354 P. 2d 533 (1960); State v. Catrett, 276 N. C. 86, 171 S. E. 2d 398 (1970); State v. Brewton, 247 Ore. 241, 422 P. 2d 581, cert. denied, 387 U. S. 943 (1967); Commonwealth v. Padgett, 428 Pa. 229, 237 A. 2d 209 (1968); Spann v. State, 448 S. W. 2d 128 (Tex. Cr. App. 1969); Cardwell v. Commonwealth, 209 Va. 412, 164 S. E. 2d 699 (1968); Gaertner v. State, 35 Wis. 2d 159, 150 N. W. 2d 370 (1967); see also Kelly v. King, 196 So. 2d 525 (Miss. 1967). Only three state appellate courts have agreed with New York. State v. Kimbrough, 109 N. J. Super. 57, 262 A. 2d 232 (1970); State v. Butler, 19 Ohio St. 2d 55, 249 N. E. 2d 818 (1969); State v. Grant, 77 Wash. 2d 47, 459 P. 2d 639 (1969).	{ "pile_set_name": "FreeLaw" }
226 F.3d 1031 (9th Cir. 2000) IRIS MENA; JOSE E. MENA, Plaintiffs-Appellees,v.CITY OF SIMI VALLEY, Defendant, and RANDY G. ADAMS; DARIN L. MUEHLER; ROBERT BRILL; MARVIN HODGES; ROY JONES; VINCENT ALLEGRA; ALAN MCCORD; RICHARD THOMAS; RONALD CHAMBERS; WILLIAM LAPPIN; ARNOLD BAYNARD; JEFFREY DOMINICK; JACK GREENBURG; RICHARD LAMB; FRANK AHLVERS; JOHN ADAMCZYK; TIM BROWN, DefendantsAppellants. No. 99-56720 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted August 11, 2000--Pasadena, California Filed September 22, 2000 [Copyrighted Material Omitted] COUNSEL: Karen K. Peabody, Carrington & Nye, Santa Barbara, California, for the defendants-appellants. James S. Muller, Los Angeles, California, for the plaintiffsappellees. Appeal from the United States District Court for the Central District of California;A. Howard Matz, District Judge, Presiding D.C. No. CV-98-08512-AHM Before: John T. Noonan, Stephen S. Trott, and Marsha S. Berzon, Circuit Judges. OPINION TROTT, Circuit Judge: 1 City of Simi Valley Police Chief Randy G. Adams and several police officers (collectively "Defendants") appeal the district court's denial of their motion for summary judgment based on qualified immunity. Defendants argue that the district court erred by failing to determine whether, under the clearly established law, the officers reasonably could have believed their conduct in obtaining and executing a search warrant for the residence of Jose and Iris Mena (collectively "Plaintiffs") and in detaining Iris Mena was lawful. We have jurisdiction pursuant to 28 U.S.C. S 1291 and, we AFFIRM in part, REVERSE in part, and REMAND to the district court. 2 * BACKGROUND 3 On January 13, 1998, Officers Darin L. Muehler ("Muehler") and Robert Brill ("Brill") of the Simi Valley Police Department ("SVPD") responded to and began investigating a gang-related drive-by shooting in Simi Valley. During their investigation, Officers Muehler and Brill learned that their primary suspect, Raymond Romero, was in possession of a .25 caliber handgun used in the shooting. 4 In addition, Raymond's brother, Anthony, told Officers Muehler and Brill that Raymond Romero lived on Patricia Avenue in a "poor house," which Anthony explained was "a residence with a large number of subjects residing in a residence designed for one family." Anthony told the officers also that Raymond Romero's friend (and fellow gang member), Genaro Gonzales ("Gonzales"), had lived at the house on Patricia Avenue, but that he believed Gonzales had moved to Mexico. Anthony explained that his brother kept some of his personal property at their mother's house because "Raymond believes these items would be stolen at the Patricia Avenue location." Finally, Anthony gave the officers his brother's phone number, which was 522-9437. 5 Subsequently, Officer Muehler had a police dispatcher call Raymond Romero's phone number and pretend there was a problem with the "911" system on Patricia Avenue. The dispatcher asked the man who answered the phone to verify the address from which he was answering. In response, the man stated that the address was 1363 Patricia Avenue. The dispatcher then asked the man to hang up the phone and dial "911," which he did. The incoming phone number was 5229437, which was listed to Genaro Gonzales. When the dispatcher asked the man if he was Gonzales, he said "No. A friend," and then he said that his name was Raymond. Based on this telephone call and the information learned from Anthony Romero, the officers concluded that Raymond Romero resided at 1363 Patricia Avenue, Simi Valley, California. 6 The house located at 1363 Patricia Avenue, which Anthony Romero described as a "poor house," was owned by Plaintiff Jose Mena. Although Jose Mena lived at the Patricia Avenue residence only part-time, his daughter, Iris, was a full-time resident. In addition, several other unrelated boarders lived in the Menas' home, renting rooms in the house, space in the garage, and motorhouses and vans parked in the backyard. Notably, Officers Muehler and Brill both had been to the Mena residence on police business on at least two prior occasions. 7 On January 29, 1998, Officer Muehler executed an affidavit in support of a warrant to search the Mena house for, inter alia, "[d]eadly weapons, specifically firearms including ammunition, casings, holsters and cleaning equipment, knives and accessories such as sheaves; [and] evidence of street gang membership or affiliation with any street gang . . .." In describing the Mena house, Muehler stated in the affidavit that Anthony Romero had explained that it was a "poor house," meaning "a residence with a large number of subjects residing in a residence designed for one family. " However, Officer Muehler's affidavit did not explain that he had been to the Mena residence before, or that he had observed that all of the doors adjacent to the living room were shut and that some of them had padlocks on them. 8 Based on Officer Muehler's affidavit, a magistrate judge issued a search warrant for Mena's residence.1 In particular, the warrant authorized the search of: 9 1363 Patricia Avenue, City of Simi Valley, County of Ventura, State of California, which is further described as a single story, single family dwelling, . . . with an attached garage . . . . To include all rooms, attics, basements, closets, storage areas, attached garages, and other parts therein; and the surrounding grounds and any storage sheds, detached garages, or out buildings of any kind located thereon, any safes or locked boxes therein. Any vehicles that are registered to or belonging to occupants of the residence and that are on or adjacent to the property. 10 Additionally, the warrant authorized the search of the person of Raymond Joseph Romero. 11 At approximately 7:00 a.m. on February 3, 1998, several officers from the SVPD, including Muehler and Brill, along with a SWAT team, executed the search warrant on Mena's residence. Defendants claim that, before entering the house, they complied with the knock and announce requirement. Specifically, Defendants declare that they (1) "pounded" on the front door, (2) yelled in both English and Spanish that they were from the SVPD, had a warrant, and intended to enter, (3) waited for approximately thirty seconds, and (4) entered the house after receiving no response. Iris Mena2 says, on the other hand, that the officers failed to comply with the knock and announce requirement. She bases this claim on her assertion that, although she was sleeping in the bedroom closest to the front door, she was not awakened by the alleged knock and announce. In any event, the officers used a battering ram to force entry into the Mena home. 12 After entering the house, the officers observed that some of the rooms were locked, many with padlocks on the outside of the doors. Nevertheless, the officers proceeded to force entry into these locked rooms, including the bedroom in which Iris Mena was sleeping. The officers found Iris Mena in bed, forcibly turned her over, handcuffed her, and detained her in the bedroom until the residence was cleared and secured by the entry team. Once the house was secure, the members of the SWAT team left the premises, and the remaining officers searched the residence. 13 At that point, Iris Mena and the other residents at 1363 Patricia Avenue were taken to the garage where they were detained, in handcuffs, for approximately two to three hours.3 During this time, the police refused to inform Iris Mena and the others why they were being detained. Moreover, the police contacted the Immigration and Naturalization Service ("INS"), and INS officers arrived at the scene during the search and interrogated the detained residents, including Iris Mena. Finally, when the officers completed their search, they took Iris Mena back into her home, removed her handcuffs, and told her of the purpose of the warrant and search. 14 On October 19, 1998, Plaintiffs filed suit under 42 U.S.C. S 1983, alleging that Defendants violated their civil rights in connection with the February 3, 1998 search of their home. In July 1999, Defendants moved for summary judgment on the ground that Plaintiffs' constitutional rights were not violated, or, alternatively, that Defendants were entitled to qualified immunity. After reviewing the papers and considering oral argument, on August 10, 1999, the district court issued an order denying the summary judgment motion, holding that because (1) "a reasonable trier of fact could conclude that the warrant and/or its execution was "overbroad," and (2) "a reasonable trier of fact could conclude that Iris Mena's detention was unreasonable," Defendants were not entitled as a matter of law to qualified immunity. Defendants now appeal. II QUALIFIED IMMUNITY STANDARD 15 We review de novo a district court's decision denying summary judgment on the ground of qualified immunity. Moran v. Washington, 147 F.3d 839, 844 (9th Cir. 1998). In deciding whether Defendants are entitled as a matter of law to qualified immunity, we must accept the facts in the light most favorable to the Plaintiffs and then determine whether, in light of clearly established principles governing the conduct in question, the officers objectively could have believed that their conduct was lawful. See Brewster v. Bd. of Educ. of Lynwood Unified School Dist., 149 F.3d 977 (9th Cir. 1998); Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993)."This standard requires a two-part analysis: 1) Was the law governing the official's conduct clearly established? 2) Under that law, could a reasonable officer have believed the conduct was lawful?" Id. III ANALYSIS 16 In their complaint, Plaintiffs allege that Defendants violated their civil rights by (1) obtaining an overbroad search warrant, (2) executing an overbroad search, (3) unlawfully detaining Iris Mena during the search, (4) conducting the search in an unreasonable manner, and (5) failing to comply with the "knock and announce" requirement. Defendants maintain, however, that they are entitled to qualified immunity because the officers reasonably could have believed that their conduct was lawful under the clearly established law. A. Overbreadth of the Search Warrant 17 "The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one `particularly describing the place to be searched and the persons or things to be seized.' " Maryland v. Garrison, 480 U.S. 79, 84 (1987) (quoting U.S. Const. amend. IV). The Supreme Court has held that this requirement is satisfied "if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended." Steele v. United States No. 1, 267 U.S. 498, 503 (1925). Here, there is no doubt that the warrant described the "place to be searched" -1363 Patricia Avenue -with sufficient particularity. Rather, the question is whether the warrant was overbroad because it authorized the search of the entire premises at 1363 Patricia Avenue, even though the house was a multiunit dwelling and probable cause related only to Romero's residential unit and, possibly, common areas of the house. 18 In deciding whether the warrant was overbroad, we begin with the Supreme Court's decision in Maryland v. Garrison. In Garrison, the police mistakenly believed that the third floor of a building contained only one residential unit at the time they applied for, obtained, and initially executed a warrant to search suspect McWebb's apartment for narcotics. Thus, when the officers entered the first unit on that floor, which they believed to be McWebb's apartment, they observed and confiscated contraband. The officers later discovered, however, that the unit they were in actually was rented by Garrison, not McWebb. As soon as the officers realized they were in Garrison's unit, they terminated the search. Nevertheless, Garrison was charged with a crime based on the contraband found in his apartment. Garrison, 48 U.S. at 80. 19 Garrison moved to suppress the evidence, arguing, inter alia, that the warrant was overbroad. The Supreme Court held that the evidence need not be suppressed on this ground because "the warrant, insofar as it authorized a search that turned out to be ambiguous in scope, was valid when it issued." Id. at 86. The Court explained however, that 20 Plainly, if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude respondent's apartment from the scope of the requested warrant. But we must judge the constitutionality of their conduct in light of the information available to them at the time they acted . . . . The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate. 21 Id. at 85. 22 Relying on Garrison, Plaintiffs in this case claim that the warrant was overbroad because, unlike the officers in Garrison, Officers Muehler and Brill knew or should have known that there were separate dwelling units within the Menas' house. Plaintiffs base this argument on the following facts: (1) Muehler and Brill had been to the house on at least two prior occasions; (2) during one of his prior visits, Officer Muehler observed that all of the doors adjacent to the living room were shut and that some of them were padlocked; and (3) Anthony Romero told the officers that his brother lived in a "residence with a large number of subjects residing in a residence designed for one family." 23 Although we accept these declarations as true, we reject Plaintiffs' assertion that the warrant was overbroad. There is absolutely no evidence in the record sufficient to create a genuine issue of material fact that either Officer Muehler, Officer Brill, or any other officer of the SVPD knew or should have known prior to the application for the warrant that the Mena residence was a multi-unit dwelling. While it is true that Muehler and Brill both had been to the Mena residence on prior occasions, they were in the house for only a short time. Furthermore, although Muehler testified in his deposition that he observed that all of the doors adjacent to the living room were shut and that some of them were padlocked, he also testified that he did "not know[ ] where those doors led." No evidence refutes this statement. Officer Muehler's description in the affidavit prepared for the warrant of the residence is both accurate and materially consistent with the extrinsic facts as he knew them at the time. The fact that Anthony Romero told the officers that his brother lived in a "residence with a large number of subjects residing in a residence designed for one family" does not suggest that the officers knew or should have known that the house was a multi-unit dwelling. The facts in this case are plainly distinguishable from the facts in Liston v. County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997), wherein we denied qualified immunity to officers because the plaintiffs there made a sufficient showing of "deliberate or reckless dishonesty" on the part of the affiant for a disputed search warrant. 24 Under the circumstances, Defendants reasonably could have believed at the time the warrant was issued that there was probable cause to search the entire premises. Cf. United States v. Williams, 917 F.2d 1088, 1091-92 (8th Cir. 1990) (holding that officers were entitled to qualified immunity because they did not know the residence for which they obtained a warrant actually contained multiple units). Accordingly, we hold as a matter of law that Defendants are entitled to qualified immunity with regard to the claim that the search warrant for 1363 Patricia Avenue was overbroad. In this respect, we remand with instructions to enter a summary judgment in favor of all Defendants. B. Overbreadth of the Search 25 Plaintiffs' next argument is that the manner in which the search warrant was executed violated their constitutional rights because, even after realizing that there were multiple units within the Mena house, the police searched the entire premises, including the individual residential units. Defendants counter that the execution of the search was valid because probable cause existed to search the entire premises, not just Romero's room and the common areas. We disagree with Defendants. 26 Police officers' authority to search premises that are described in a warrant is not unlimited. "If, during the search, the officers become aware that the warrant describes multiple residences, the officers must confine their search to the residence of the suspect." United States v. Kyles , 40 F.3d 519, 524 (2d Cir. 1994) (citing Garrison, 480 U.S. at 86-87). To determine whether the officers should have realized they were searching the wrong residence, the Garrison court set forth the following standard: "[T]he validity of the search of respondent's apartment pursuant to a warrant authorizing the search of the entire third floor depends on whether the officers' failure to realize the overbreadth of the warrant was objectively understandable and reasonable." Garrison, 480 U.S. at 88 (emphasis added). 27 Here, shortly after beginning the search, the evidence and the reasonable inferences it supports are sufficient to suggest that the officers should have realized that the Menas' house was a multi-unit residential dwelling and, thus, that the warrant was actually overbroad. When the officers first entered the house, they observed that many of the rooms were padlocked from the outside. Furthermore, upon forcing entry into the locked rooms, the officers saw that the rooms were set up as studio apartment type units, with their own refrigerators, cooking supplies, food, televisions, and stereos. Considering that Officers Muehler and Brill knew that a large number of persons lived in the house, and that Muehler had observed the padlocked doors on a prior occasion, we agree with the district court that a jury could conclude from these facts that the officers' search beyond Romero's room and common areas was unreasonable. 28 Defendants argue nevertheless that they are entitled to qualified immunity because their conduct in executing the warrant and in searching the entire premises was objectively reasonable. Generally, if a structure is divided into more than one occupancy unit, probable cause must exist for each unit to be searched. United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980). This rule, however, is not absolute. For example, we have held that 29 a warrant is valid when it authorizes the search of a street address with several dwellings if the defendants are in control of the whole premises, if the dwellings are occupied in common, or if the entire property is suspect. 30 United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985); see also United States v. Frazin, 780 F.2d 1461, 1467 (9th Cir. 1986). 31 Defendants maintain that there was evidence that the entire premises were suspect because Romero had access to all parts of Mena's residence. Specifically, they argue that the following facts support this conclusion: (1) Romero previously had secreted a gun at the residence of a fellow gang member; (2) Gonzales, a gang member, had also lived at 1363 Patricia Avenue, although it was believed he had moved to Mexico; (3) street gang members often hide weapons and evidence in their homes and the homes of fellow gang members; (4) Romero had access to areas of the premises occupied by other residents, as evidenced by the fact that he answered Gonzales's phone; and (5) other residents had access to Romero's possessions, as evidenced by the fact that he was worried that some of his belongings might be stolen. In short, Defendants appear to be arguing that, because Romero and Gonzales were gang associates, and they both lived in this house, the police had probable cause to search the entire premises at 1363 Patricia Avenue. 32 We reject Defendants' argument because, at most, the aforementioned facts provided the officers with probable cause to search Romero's room, Gonzales's room (if he still lived there), and common areas. On the other hand, there is virtually no evidence in the record to show that Romero had access to or was in control of the locked rooms inhabited by the other residents, such as Iris Mena. 33 As the district court correctly stated, "the law is well established that the officers `were required to discontinue the search of [Plaintiffs' property not reasonably in Romero's control] as soon as they discovered that there were [other] separate units [on the property] and therefore were put on notice of the risk that they might be in a [portion of the property] erroneously included within the terms of the warrant.' " (quoting Garrison, 480 U.S. at 87). Because a reasonable jury considering all the facts could determine that it was unreasonable for the officers to continue the search, we affirm the district court's denial of qualified immunity on this claim. C. Unlawful Detention 34 Third, Plaintiffs contend that Iris Mena's detention was unlawful on the basis of its duration and the manner in which it was carried out.4 Defendants once again assert that they are entitled to qualified immunity as a matter of law because "a reasonable officer at the scene could have believed that keeping the four detained residents handcuffed and detained together for the duration of the search was reasonably necessary to avoid danger to the officers and residents, reduce the risk of flight, and avoid interference with the search." Because we conclude that the evidence raises triable issues regarding the reasonableness of the detention, we affirm the district court. 35 The Supreme Court has held that If the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen's privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home. Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. 36 Michigan v. Summers, 452 U.S. 692, 704-05 (1981) (footnotes omitted). However, the Court included a caveat: "[S]pecial circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case . . . ." Id. at 705 n.21. Thus, "while detentions of occupants during the period of a search will under most circumstances prove to have been reasonable, a detention may be unreasonable in a particular instance either because the detention itself is improper or because it is carried out in an unreasonable manner." Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994); see also Liston v. County of Riverside, 120 F.3d at 977-79. 37 In Franklin v. Foxworth, this court denied law enforcement officers qualified immunity on an unlawful detention claim. Foxworth, 31 F.3d at 876-78. We held that 38 A detention conducted in connection with a search may be unreasonable if it is unnecessarily painful, degrading, or prolonged, or if it involved an undue invasion of privacy. Detentions, particularly lengthy detentions, of the elderly, or of children, or of individuals suffering from serious illness or disability raise additional concerns. Of course, the presence of any of these factors in an individual case does not establish that the detention is unreasonable per se. 39 Rather, these factors, along with the Graham elements5 and any other circumstances relevant to an individual case, must be assessed in their totality. 40 Id. at 876. Applying this standard, the Foxworth court concluded that the police "executed the warrant in an unreasonable manner, first by removing a gravely ill and semi-naked man from his sickbed without providing any clothing or covering, and then by forcing him to remain sitting handcuffed in his living room for two hours rather than returning him to his bed within a reasonable time after the search of his room was completed." Id. at 876-77. In reaching this conclusion, the court reasoned that None of the officers had any reason to believe, on the basis of the information they had prior to the search or their observations once in the house, that Curry had committed a crime, or that he was armed. In fact, the officers were not even aware that Curry lived in the house prior to executing the warrant. It should also have been clear to them that Curry was not a gang member. 41 Id. at 877. 42 Three years after Foxworth, we decided Liston v. County of Riverside. In Liston, law enforcement officers executed a search warrant for 8293 Saddlecreek Drive, Glen Avon, California. Liston, 120 F.3d at 968. The intended target of the search was James "Rocky" Hill. Id. At the time the warrant was executed, however, Hill no longer resided at the Saddlecreek residence. Id. As a result, the officers mistakenly detained and searched the home of Jim Liston and his family. Id. 43 The Listons sued the officers under 42 U.S.C. S 1983 arguing, inter alia, that their detention was unreasonable and, thus, in violation of the Fourth Amendment. In evaluating this claim, we discussed Summers and Foxworth and recognized that we must apply a "totality of the circumstances" test. We held that the officers were not entitled to qualified immunity because under the Listons' versions of the facts, the officers continued to detain them long after a reasonable officer would have known that the wrong people were in custody and that the house was no longer owned or occupied by Hill -and, thus, long after there was any reasonable cause for continuing to invade the Listons' privacy. 44 Id. at 979. 45 We conclude that, like Foxworth and Liston, the case at bar may be an example of the "unusual case" contemplated by the Supreme Court in Summers. In the course of executing a warrant -the intended target of which was Raymond Romero -Defendants forcibly removed Iris Mena from her bed, handcuffed her, brought her into the garage in her sleeping clothes, and forced her to remain there for two to three hours. Because we have now concluded that this search warrant was not invalid, the Summers rule would permit these officers as a matter of law to detain Ms. Mena while "a proper search is concluded." Summers, 452 U.S. at 705. And, if the jury here should conclude that the officers did have probable cause to search the entire premises -even after discovering that the Mena's house was a multi-unit residential dwelling as defined in Garrison -then the lawful authority to detain Ms. Mean would continue -and a reasonable officer could so conclude on these facts. However, if the jury should conclude that the officers did not have probable cause to search areas other than (1) Romero's room, (2) Gonzales' room, and (3) common areas, then Ms. Mena's detention rests on a different footing and may be justified only in connection with whatever search the jury concludes to have been "proper." 46 Defendants have produced no evidence that Ms. Mena had committed a crime, posed any sort of threat to the officers, or was in any way resisting arrest or attempting to flee. See Graham, 490 U.S. at 396. In fact, the videotape footage reveals that Ms. Mena, who was only 18 years old at the time, appeared to be sitting quietly and cooperating with the officers. Nevertheless, the police refused to inform Ms. Mena why she was being detained, called out the INS to question her about her citizenship status, and kept her handcuffed throughout the entire two to three hour detention. 47 Because a jury could conclude on the totality of these facts and circumstances that Iris Mena's detention past the point of a proper search violated the Fourth Amendment, we affirm the district court with respect to her unreasonable detention claim. It, too, shall be decided by a trier of fact. D. Conduct During the Search 48 Next, Plaintiffs assert that the officers violated 42 U.S.C. S 1983 by conducting the search itself in an unreasonable manner, in particular by callously and needlessly ransacking their home and destroying property. We have held that "officers executing a search warrant occasionally `must damage property in order to perform their duty.' " Liston, 120 F.3d at 979 (quoting Dalia v. United States, 441 U.S. 238, 258 (1979)). Therefore, the destruction of property during a search does not necessarily violate the Fourth Amendment. United States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991). Rather, "only unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively, violates the Fourth Amendment." Liston, 120 F.3d at 979; see also Becker, 929 F.2d at 446. 49 Here, Iris Mena testified in her deposition that, during the search, the officers unnecessarily broke down two doors that were unlocked. ("And the door that was in the garage, it was already open, and they broke it anyways. And another room that is right in front of Ray's room, it was open, too, at that time, and they broke it, too."). In addition, Ms. Mena testified that she saw Officer Allegra kicking a door on the patio that was already open and saying "I like to destroy these kind of materials, it's cool." In light of this testimony, Defendants appear to have damaged Plaintiffs' property in a way that was "not reasonably necessary to execute [the] search warrant." Becker, 929 F.2d at 446. Because a reasonable officer would have known that such conduct if proved was unlawful, we affirm the district court. E. Knock and Announce 50 Lastly, Plaintiffs claim that Defendants violated the Fourth Amendment by failing to "knock and announce" before forcing entry into their home. Specifically, Plaintiffs argue that, because Iris Mena, who was sleeping in the bedroom nearest the front door, was not awakened by the alleged "knock and announce," the police either did not "knock and announce" at all, or they did not "knock and announce" loudly enough to constitute adequate notice. Defendants respond that, in fact, they did comply with the "knock and announce" requirement and, therefore, are entitled to qualified immunity. 51 The district court denied Defendants' summary judgment motion on this issue because, in light of Iris Mena's and the officers' contradictory testimony, there is an issue of fact as to whether the police announced themselves before forcing entry into the Mena home. We agree that there is, on summary judgment, a triable issue of fact on this question, and affirm the district court. IV CONCLUSION 52 For the foregoing reasons, we affirm the district court, except as to the claim that the warrant itself was on its face overbroad. On this claim, we reverse the district court and remand for the entry of summary judgment in favor of the Appellants. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with the views expressed herein. 53 The parties shall bear their own costs of this appeal. Notes: 1 The magistrate also issued a search warrant for the home of Raymond Romero's mother and brother. That warrant is not at issue in this case. 2 Jose Mena was not present during the warrant service and execution and, therefore, lacks standing to challenge the officers' compliance with the knock and announce requirement. See United States v. ValenciaRoldan, 893 F.2d 1080, 1081 n.1 (9th Cir. 1990). 3 There is a dispute about the length of the detention. While Iris Mena declares that she was detained for approximately two to three hours, Defendants assert that the detention lasted only about an hour and a half. For purposes of summary judgment, however, we construe the facts in the light most favorable to the non-moving party. Crystal v. United States, 172 F.3d 1141, 1147 n.9 (9th Cir. 1999). Thus, we assume that Iris Mena's detention lasted between two to three hours. 4 Plaintiffs also contend that Iris Mena's detention was so extensive that it constituted an arrest, and that such an arrest was not supported by probable cause. This discrete issue is not before us on appeal. 5 The "Graham elements " are those elements enumerated in Graham v. Connor, 490 U.S. 386 (1989), including the severity of the crime, whether the person being detained poses an immediate threat, and whether the suspect is actively resisting arrest or attempting to flee. Id. at 396.	{ "pile_set_name": "FreeLaw" }
ATTORNEY GENERAL OF TEXAS GREG ABBOTT March 24,2003 The Honorable Rodney Ellis Opinion No. GA-0045 Chair, Senate Committee on Government Organization Re: Whether Exchanges of the Farmers Insurance Texas State Senate Group of Companies@ are “authorized insurers” P.O. Box 12068 that are required to file withdrawal plans under Austin, Texas 7871 l-2068 article 21.49-2C of the Texas Insurance Code; whether their proposed refusal to renew policies of homeowners in Texas would violate state law; and whether the Commissioner of Insurance may impose a moratorium on the approval of a plan for withdrawal (RQ-0620-JC) Dear Senator Ellis: You have asked three questions regarding the proposed withdrawal of the Farmers Insurance Group of Companies@* (“Farmers”) from the Texas homeowners’ insurance market.* A brief submitted on behalf of Farmers states that “[olnly two companies have announced that they will no longer . . . offer a renewal of existing policies - Farmers Insurance Exchange and Fire Insurance Exchange [the Exchanges] .” Rogers Brief, supra note 1, at l-2. “The two Exchanges are insuring entities who sometimes do business under the federally registered service mark ‘Farmers Insurance Group of Companies@. “’Id at 2. A brief received from the Texas Department of Insurance (“TDI”) provides further background: “Farmers Group, Inc. is a Nevada corporation and is the parent company of both Farmers Insurance Exchange and Fire Insurance Exchange . . . . The Exchanges are foreign insurers that are domiciled in California and licensed to do business in Texas as “‘There is no legal entity known as Farmers Group or Farmers Insurance Group of Companies@. Farmers Insurance Group of Companies@ is not now, nor has it ever been licensed to transact the business of insurance in any state in the United States. It is, however, a federally registered service mark registered with the United States Patent and Trademark office used for business promotional activities by certain of the Farmers Insuring Entities. It is also a collective internal designation used as a general reference denoting the Farmers Insuring Entities.” Brief from Thomas T. Rogers, Jackson Walker, L.L.P., to Honorable John Comyn, Texas Attorney General at 2 n. 1 (Nov. 25,2002) (on file with Opinion Committee) [hereinafter Rogers Brief). *See Letter from Honorable Rodney Ellis, as Chair of the Senate Committee on Finance (currently Chair of the Senate Committee on Government Organization), to Honorable John Comyn, Texas Attorney General (Sept. 27,2002) (on file with Opinion Committee) [hereinafter Request Letter]. The Honorable Rodney Ellis - Page 2 (GA-0045) reciprocal exchange insurers pursuant to Chapter 19 of the Texas Insurance Code.“3 Therefore, our answers apply only to Farmers Insurance Exchange and Fire Insurance Exchange.4 You first ask whether the Exchanges’ proposed refusal to renew the policies of 700,000 homeowners in Texas would violate state law. See Request Letter, supra note 2, at 1. On September 24,2002, Farmers, d/b/a the Exchanges, announced that it would not renew current homeowners’ insurance policies beginning in November 2002. This decision would have affected approximately 700,000 households. See TDI Brief, supra note 3, at 2. Under the terms of article 19.12(a) of the Insurance Code, reciprocal exchange insurers are “exempt from the operation of all insurance laws of this State except as in this Chapter specifically provided, or unless reciprocal or inter-insurance exchanges are specifically mentioned in such other laws.” TEX. INS. CODE ANN. art. 19.12(a) (Vernon Supp. 2003). Section 2 1.49-2B of the Insurance Code governs cancellation and nonrenewal of certain property and casualty policies, including homeowners’ policies. See id. art. 21.49-2B, § 2(2). By its terms, it is expressly applicable to reciprocal exchange insurers. See id. art. 2 1.49-2B, 9 1(l)(C). Under the terms of this provision, an insurer “shall renew a policy on its expiration, at the option of the insured, unless the insurer has mailed written notice of nonrenewal to the insured not later than the 30th day before the date on which the policy expires.” Id. art. 21.49-2B, 8 5 (emphasis added). The Exchanges’ refusal to renew policies of homeowners in Texas would not violate state law, provided that the Exchanges follow the notice provision. You next ask whether the Exchanges constitute “authorized insurers” who are required to file a plan for withdrawal under article 2 1.49-2C of the Insurance Code. See Request Letter, supra note 2, at 1. Such a plan must be “constructed to protect the interests of the people of this state” and must meet certain statutory requirements. TEX. INS. CODE ANN. art. 21.49-2C(a)( 1) (Vernon Supp. 2003). Article 2 1.49-2C is not included in chapter 19’s list of statutes to which reciprocal exchanges are subject, nor does article 21.49-2C itself specifically mention reciprocal exchange insurers as “authorized insurers.” Id. art. 19.12(b)(1)-(2); art. 21.49-2C. Because article 21.49-2C does not apply to reciprocal exchange insurers, the Exchanges would not be required to file a plan for withdrawal from the Texas homeowners’ market. Your final question is whether the Commissioner of Insurance (“the Commissioner”) could impose a moratorium on the approval of the Exchanges’ plan for withdrawal. See Request Letter, supra note 2, at 1. Under article 21.49-2C(g), the Commissioner may impose a moratorium of up to two years “on the approval of plans for withdrawal or implementation of plans to restrict the writing of new business.” TEX. INS. CODE ANN. art. 21.49-2C(g) (Vernon Supp. 2003). To impose a moratorium, the Commissioner is required to find 3Brief from Sara Shiplet Waitt, Senior Associate Commissioner, Texas Department of Insurance, to Susan Gusky, Chair, Opinion Committee, Office of Attorney General at 1 (Dec. 9, 2002) (on tile with Opinion Committee) [hereinafter TDI Brief]. 4See Farmers Insurance Group of Companies@, at http://www.farmers.com/FarmComm/content/CClOl15.isp (listing Farmers Insurance Exchange and Fire Insurance Exchange as reciprocals) (last visited Mar. 24,2003). The Honorable Rodney Ellis - Page 3 (GA-0045) after notice and public hearing that a catastrophic event has occurred and that as a result of the event, the relevant line of insurance is not reasonably expected to be available to a substantial number of policyholders or potential policyholders in this state, or in the case of personal lines of . . . residential property insurance, in a rating territory. Id. In order for the Commissioner to impose a moratorium on an insurer, the insurer must first be subject to article 21.49-2C. Because the Exchanges are reciprocal exchange insurers that are not subject to article 2 1.49-2C, they are not subject to a moratorium issued by the Commissioner. See id. arts. 19.12(a), 21.49-2B, 6 5. The Honorable Rodney Ellis - Page 4 (GA-0045) SUMMARY The refusal of Farmers Insurance Exchange and Fire Insurance Exchange to renew the policies of Texas homeowners would not violate state law, provided that the Exchanges follow the notice procedure set forth in article 21.49-2B, section 5 of the Insurance Code. The Exchanges would not be required to file a plan for withdrawal from the Texas homeowners’ insurance market, as they are reciprocal exchange insurers that are not regulated by article 21.49-2C of the Insurance Code. Nor are reciprocal exchange insurers subject to a moratorium issued by the Commissioner of Insurance. Very truly yours, BARRY R. MCBEE First Assistant Attorney General DON R. WILLET Deputy Attorney General - General Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee	{ "pile_set_name": "FreeLaw" }
965 F.Supp. 545 (1997) Patricia KRISTOFERSON and Terry Lewis, Plaintiffs, v. OTIS SPUNKMEYER, INC., Defendant. No. 96 Civil 2521 (JSR). United States District Court, S.D. New York. June 3, 1997. Richard B. Wolf, Poughkeepsie, NY, for Plaintiffs. 546 Mark Blondman, Blank, Rome, Comisky & McCauley, Philadelphia, PA, for Defendant. OPINION AND ORDER RAKOFF, District Judge. A terminated employee does not always go quietly. With increasing frequency, a former employee is apt to sue, alleging that the termination resulted from the employer's unlawful discrimination. Attempting to forestall such a lawsuit, an employer may offer additional termination benefits in return for a signed release from liability; but the circumstances under which the release is obtained may render it potentially voidable. The question presented on the instant motion is whether, in such circumstances, the former employee must tender back to the employer the benefits that were received as consideration for the release before the employee can sue the employer for discriminatory termination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the reasons set forth below, the Court concludes that a proper accommodation of the relevant competing interests and policies is best achieved by requiring that such a plaintiff, as a requirement for commencing a Title VII action, enter into a binding undertaking to return to the employer, if the release is found invalid, the consideration for the release, in an amount and on a schedule and other terms to be set by the Court at the conclusion of the case, regardless of whether or not the plaintiff prevails on the Title VII claim. By way of background, plaintiffs Patricia Kristoferson and Terry Lewis commenced this action in April, 1996, alleging that in early 1995 they were each wrongfully terminated by defendant Otis Spunkmeyer, Inc. on the basis of their gender, in violation of Title VII and various state statutes. Following discovery, Spunkmeyer moved for summary judgment on the grounds that at the time of their terminations the plaintiffs, in exchange for good consideration, had executed binding agreements releasing Spunkmeyer from any such liability, and further that the plaintiffs, by failing to tender back such consideration prior to commencing this action, had subsequently ratified the releases. The record before the Court on summary judgment reveals the following facts (either undisputed or, where disputed, taken most favorably to plaintiffs) pertinent to this motion. On January 31, 1995, James Embry, Spunkmeyer's National Manager of Operations, met with Kristoferson for about 20 minutes at the restaurant of a local Ramada Inn, where, without advance notice, he informed her that she was being terminated and instructed her to sign "paperwork" that included a form agreement releasing Spunkmeyer from, among other things, the liability here in issue. Embry explained to Kristoferson that signing the release "means that you're not going to sue." He also told her that she needed to sign the release in order to receive her severance pay, and that by signing she would also receive accrued vacation pay and additional months of health insurance coverage extending beyond the termination date. Plaintiff then signed the release. See Kristoferson Dep. at 137-38. Plaintiff Lewis was terminated on February 1, 1995, in a meeting with Embry at Bradley International Airport, Windsor Locks, Connecticut. As with plaintiff Kristoferson, she was presented with release papers and informed that she would need to sign them in order to receive severance pay, accrued vacation, and additional months of health insurance coverage. Plaintiff Lewis alleges, however, that she neither was told nor understood that the release would bar her from bringing this suit. See Lewis Dep. at 37-45. The manner and circumstances in which these releases were obtained reinforce the wisdom of the requirement in this Circuit that an employee's agreement to waive legal claims arising from violations of federal discrimination statutes must be made knowingly and voluntarily. See Laniok v. Advisory Comm., 935 F.2d 1360, 1365 (2d Cir.1991). Such a determination can be made only upon examination of the "totality of the circumstances," including such factors as (1) the employee's education and business experience, (2) the clarity of the agreement, (3) the amount of time the employee had possession of or access to the agreement before signing 547 it, (4) the role of the employee in negotiating the terms of the agreement, (5) whether the employee consulted an attorney or, failing that, whether the employee had a fair opportunity to do so and whether the employer encouraged or discouraged the employee to do so, and (6) whether the consideration given exceeded employee benefits to which the employee was already entitled. See Bormann v. AT & T Communications, Inc., 875 F.2d 399, 403 (2d Cir.1989).[1] Applying these factors, Spunkmeyer itself concedes that material factual issues remain as to the initial validity of the release signed by Lewis, since that plaintiff alleges that she neither was told nor otherwise knew that the release would bar her from bringing this action. While Spunkmeyer contends that the situation is different with respect to plaintiff Kristoferson because of her acknowledgment that she was told that the release would bar her from bringing suit, the other relevant factors militate against finding as a matter of law that the waiver was voluntary. Taken by surprise, Kristoferson was able to examine the release for perhaps 15 minutes before signing it, without the opportunity to consult counsel; in other cases where such releases have been held valid, the employee had weeks or even months to make the determination. See, e.g., Bormann, 875 F.2d at 401; Murphy v. IBM, 810 F.Supp. 93, 95 (S.D.N.Y.1992); Frumkin v. IBM, 801 F.Supp. 1029, 1042 (S.D.N.Y.1992). Furthermore, it is far from clear that Kristoferson was accurately informed as to what portion of the benefits that she would receive in exchange for signing the release would be due her in any case and, conversely, what was the real consideration for the release. Nor was she presented with any meaningful opportunity to negotiate any of the terms of the form release. See generally T. Rakoff, "Contracts of Adhesion: An Essay in Reconstruction," 96 Harv. L.Rev. 1173 (1983). Instead, on Kristoferson's account of the meeting, everything was done to minimize her bargaining position and to maximize the pressures under which she had to "take it or leave it." Under these circumstances, there clearly remain disputed issues of material fact as to whether Kristoferson's execution of the release was genuinely knowing and voluntary. Absent some specific statutory provision governing such releases, however, these alleged deficiencies in the manner in which they were obtained would, under ordinary principles of contract law, render them simply voidable rather than void. see Fleming, 27 F.3d at 261-62 (citing the absence of explicit federal regulation of releases in applying common law contract principles); cf. Hogue v. Southern R.R. Co., 390 U.S. 516, 88 S.Ct. 1150, 20 L.Ed.2d 73 (1968) (applying federal regulation of releases under the Federal Employers' Liability Act, 45 U.S.C. § 55); Oberg v. Allied Van Lines, Inc., 11 F.3d 679 (7th Cir.1993) (applying federal regulation of releases under the Jones Act, 46 U.S.C.App. § 688(a)); Forbus v. Sears Roebuck & Co., 958 F.2d 1036 (11th Cir.1992) (applying federal regulation of releases under the Age Discrimination in Employment Act, 29 U.S.C. § 626(f)(1)). On this approach, a plaintiff, once apprised of her opportunity to void the bargain, could choose instead to keep the benefits and thereby "ratify" it. Taking this tack, Spunkmeyer argues that the plaintiffs here, by choosing to keep the extra benefits they obtained in return for the releases rather than tendering back such consideration prior to the commencement of this action, knowingly and voluntarily ratified the releases and are therefore barred from bringing this lawsuit. While defendant supports this argument with references to the contract law of the states in which the releases were executed 548 (respectively, New York and Connecticut), two federal circuits have reached the same conclusion applying the federal common law of contract. See Fleming v. United State Postal Service AMF O'Hare, 27 F.3d 259, 261-62 (7th Cir.1994); Wamsley v. Champlin Refining and Chemicals, Inc., 11 F.3d 534 (5th Cir.1993). Two other federal circuits, however, have suggested that overriding federal anti-discrimination policies render traditional principles of contract law (whether state or federal) inapplicable to this issue and negate any requirement of "tendering-back" as a condition of bringing an anti-discrimination lawsuit. See Long v. Sears Roebuck & Co., 105 F.3d 1529 (3d Cir.1997); Botefur v. City of Eagle Point, 7 F.3d 152 (9th Cir. 1993). While these dueling lines of precedent from other circuits are helpful in framing the issue, this Court concludes that sensitive application of the concerns voiced by the Supreme Court and the Second Circuit in related areas leads to a result somewhat different from either of these approaches. To begin with, it is clear to this Court from the Second Circuit's decision in Bormann, supra, that federal law must govern the question of whether and to what extent the doctrine of contractual ratification applies to agreements purporting to release an employer from Title VII liability, and, further, that traditional contractual principles, state or federal, must not be applied in this context in such a way as to undermine the legislative purpose to combat employment discrimination. Thus, in Bormann, the Second Circuit expressly rejected the application of "ordinary contract principles" to the determination of the facial validity of a release from discrimination liability, imposing instead a more rigorous and subjective "voluntariness" test in deference to the "strong Congressional purpose ... to eradicate discrimination in employment." Bormann, 875 F.2d at 403. Fulfillment of the strong Congressional policy against employment discrimination is similarly relevant to the issue at bar. Although the concern over whether a release from liability is knowing and voluntary is very much lessened at the point of alleged ratification since by definition ratification only occurs when a would-be plaintiff, now apprised that her prior agreement not to sue is voidable, chooses instead to retain the benefits of the agreement and thereby ratifies it the practical problem is that a typical employee will already have spent the monies she received in exchange for the release by the time she learns of its voidability. See Long, 105 F.3d 1529, at 1542-43. While, unlike the retired employees in age discrimination lawsuits who might never be able to earn the wherewithal to return the consideration, a typical Title VII plaintiff might eventually be able to make such a recompense, in a great many cases it might require partial payments over time. Thus, as a practical matter, a strict application of a tender-back requirement would prevent many employees from whom releases had been coercively obtained from ever challenging the validity of the releases, in direct contravention of the basic teaching of Bormann. On the other hand, no federal district court can ignore the wave of dubious and potentially extortionate discrimination cases currently flooding the federal docket. Undoubtedly part of the reason for this flood, which threatens to drown even valid anti-discrimination lawsuits in its wake, is the fact that current law enables such lawsuits to be brought at little or no economic risk to the plaintiffs, since such suits are typically brought on a contingent fee basis, with attorney fees recoverable by prevailing plaintiffs but not by prevailing defendants. See 42 U.S.C. § 1988. To enable a plaintiff who has already received substantial consideration for a release to keep that consideration while at the same time bringing the very lawsuit the release was intended to obviate is not only unfair on its face but is bound to encourage such doubtful litigation. Such an approach also undercuts what the Supreme Court has recognized is the "strong preference for encouraging voluntary settlement of employment discrimination claims." Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 998 n. 14, 67 L.Ed.2d 59 (1981). Balancing these competing considerations, in the absence of more specific statutory guidance, cf. Older Workers' Benefit Protection Act of 1990, 29 U.S.C. § 626(f), requires a federal court to take the same kinds of 549 initiatives as courts in equity have historically taken to lessen the rigors of the common law. In particular, equity's answer to the severe common law requirement of tendering-back was to permit an offer to tender-back made coincident with the bringing of the action challenging the underlying contract, to substitute for the actual tender. See Fleming, 27 F.3d at 261, 1 E. Allan Farnsworth, Farnsworth on Contracts § 4.15 (1990). Elaborating and modifying that equitable approach in the instant context, this Court will henceforth require that, before a Title VII plaintiff who has previously received benefits for signing a release from such liability can go forward with such an action, the plaintiff must execute a formal undertaking that requires the plaintiff, if the release is later found to be invalid, to return the consideration to the employer, in an amount (including possible interest) and on a schedule and other terms to be determined by the Court at the conclusion of the case, regardless of whether the plaintiff thereafter prevails on her Title VII claim. The Court's theory in promulgating this approach is to place formerly-released plaintiffs at some potential economic risk if they choose to breach the facial terms of the release by bringing Title VII actions, while, on the other hand, not to impose an immediate price to the bringing of such a lawsuit that may prove prohibitive to legitimate victims of discrimination whose very economic circumstances may have contributed to their involuntarily executing a dubious release. In short, the object is to make sure that neither side gets a completely free ride on the expensive conveyance of legal process. Since the plaintiffs in this case could not have necessarily foreseen this requirement, they will have 15 days in which to inform the Court whether they wish to execute such an undertaking, and, if so, to submit a proposed form thereof, after which defendant will have 15 days to submit any objection to the form. If no submission is received from plaintiffs by June 18, 1997, the Court will enter summary judgment for the defendant and dismiss the action (since the Court would not choose to exercise supplemental jurisdiction over the remaining state claims). Conversely, if after hearing from both sides an adequate undertaking is executed, the motion for summary judgment will be denied and a telephone conference of counsel will be convened for the purpose of setting a trial date for no later than September, 1997. SO ORDERED. NOTES [1] Not all circuits agree with this approach. Compare Coventry v. United States Steel Corp., 856 F.2d 514, 517 (3d Cir.1988) (applying a "totality of the circumstances" test); O'Hare v. Global Natural Resources, Inc., 898 F.2d 1015, 1016 (5th Cir.1990) (same); Pierce v. Atchison, Topeka and Santa Fe Railway Co., 65 F.3d 562, 571 (7th Cir.1995) (same); with O'Shea v, Commercial Credit Corp., 930 F.2d 358, 362 (4th Cir.1991) (applying ordinary contract principles and rejecting a federal "totality of circumstances" test); Runyan v. Nat'l Cash Register Corp., 787 F.2d 1039, 1044 n. 10 (6th Cir.) (en banc), cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L.Ed.2d 114 (1986) (same); Lancaster v. Buerkle Buick Honda Co., 809 F.2d 539, 540 (8th Cir.), cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96 L.Ed.2d 699 (1987) (same).	{ "pile_set_name": "FreeLaw" }
556 N.W.2d 29 (1996) 251 Neb. 233 STATE of Nebraska, Appellee, v. Clifford A. PRIVAT, Appellant. No. S-95-1241. Supreme Court of Nebraska. December 6, 1996. 31 Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant. Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee. WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ. GERRARD, Justice. I. STATEMENT OF CASE Clifford A. Privat appeals his convictions, following a jury trial, for first degree murder and use of a weapon in the commission of a felony. Privat was sentenced to life imprisonment for the murder conviction and from 6 to 20 years' imprisonment for the use of a weapon conviction, to be served consecutively. We determine that all of Privat's assigned errors are without merit. As a result, we affirm the judgment of the district court. II. FACTS Privat and his friend, Eldon Troy LeGer, along with LeGer's girl friend, decided to come to Lincoln, Nebraska, sometime in either late July or early August 1993 to look for employment. Instead of finding jobs, they spent their time partying and drinking with friends. Running low on money, Privat and LeGer hatched a plan to find somebody to "roll"that is, someone they could beat up and rob. In furtherance of this plan, on the evening of August 3, 1993, Privat, LeGer, and another friend, Jessie Farnan, visited two Lincoln nightclubs, the Panic and the 2001 Club, searching for a victim. Kelly Erisman, the owner of the Panic, testified that she remembered seeing LeGer and Privat at her bar on the night of August 3. She testified that LeGer did not appear to be of legal age, so she asked to see his identification and requested that he sign the "Nebraska ID book"a book maintained by the bar to verify identifications. After LeGer signed the ID book, Erisman said she asked him to show her his identification. LeGer produced a driver's license which obviously did not belong to LeGer. Erisman testified she remembered that the name on the license produced by LeGer was something like "Private" with the first name of Clifford. In any event, the identification produced by LeGer indicated this person was just 19 years old, and Erisman asked the group to leave. Erisman said approximately a half hour later, around 12 to 12:15 a.m., Privat returned to her bar and again tried to gain entry. Erisman continued to refuse admission to Privat. Erisman said, after turning Privat away on this second occasion, he specifically asked her the location of a "gay bar." Erisman refused to tell Privat anything, and Privat left. After leaving the Panic, Privat, LeGer, and Farnan found their way to the 2001 Club. It was at this bar that Privat encountered the victim, Harold Grover, while LeGer and Farnan played pool. Privat introduced Grover to LeGer and invited Grover to join them at their motel. Upon arriving at the motel, the group went upstairs to their room and began drinking beer. After about 20 minutes, Privat noticed Grover was no longer in the motel room. Privat and LeGer left to find Grover and located him standing next to the road outside the motel. They drove up to Grover in Privat's car and offered him a ride back to his car at the 2001 Club. LeGer said that at this time, Grover got into the front seat and LeGer got into the back seat, directly behind Grover. Instead of taking Grover to his car, they took him first to a truckstop to get cigarettes and beer, and then to a parking lot at Branched Oak Lake. Once at the lake, Privat started talking to Grover. During this conversation, Privat took off his belt and gave it to LeGer. LeGer then took the belt, put it around Grover's neck, and pulled back. The two demanded Grover's money, to which Grover at first did not respond. LeGer began to release the belt and laugh when Privat told him, "This ain't fuckin' funny" and to grab the belt tighter as "[w]e're takin' him out." Privat began beating Grover while LeGer grabbed Grover's wallet. Privat then dragged Grover from the car, beat and 32 kicked him, and eventually jumped on his throat. When LeGer asked Privat what they were going to do, Privat said he was going to kill Grover and took out his pocketknife and slashed Grover's throat. LeGer then took the knife and stabbed Grover in the stomach. The two carried Grover's body into the woods and left Lincoln the next day. Acting on a report of a missing person, the Lincoln Police Department discovered witnesses who saw Grover leave the 2001 Club with Privat and LeGer and who saw Privat and LeGer's encounter with the manager of the Panic. Det. Elgin Kuhlman contacted LeGer's mother in Kansas on a number of occasions attempting to learn of LeGer's whereabouts. LeGer eventually contacted Detective Kuhlman and agreed to return to Lincoln. On August 26, 1993, Detective Kuhlman and Sgt. Robert Marker of the Lancaster County sheriff's office met LeGer and his girl friend as they arrived at Eppley Airfield in Omaha. LeGer agreed to show Detective Kuhlman and Sergeant Marker the location of Grover's body and to cooperate in the investigation and prosecution of Privat. As part of this cooperation, LeGer agreed to call Privat that night. This telephone conversation occurred around 4 a.m. on August 27. During this conversation, Privat made several statements implicating himself in Grover's murder. 1. IN-COURT IDENTIFICATION At trial, five witnesses identified Privat as the subject of their testimony and, for the record, described his appearance and where he was seated in the courtroom. First to testify was Christal Marie Pringle. Pringle said that she and a friend were in the parking lot of the 2001 Club shortly after closing time in the early morning hours of August 4, 1993. Pringle testified that a young man who identified himself as Troy approached them and asked directions back to his motel. After describing the person who joined the conversation, the following exchange occurred between the prosecutor and the witness: "Q. Is that person here in the courtroom today? A. Yes, he is. Q. Can you tell me where he's seated and what he's wearing? A. He's sitting right over there (indicating), he's got a gray blazer on, blue striped tie, blue jeans." Pringle eventually testified that she saw Grover in the back seat of Privat's car and that Grover was in the car as it drove away. Tom Hall, a childhood friend of LeGer's, testified that on the evening of August 3, 1993, he had a brief conversation with LeGer outside Hall's apartment, when LeGer and two other young men unexpectedly stopped by. Hall described both men and was asked if one of them was in the courtroom, to which Hall answered, "Yes." When asked to describe where this person was sitting and what he was wearing, Hall said, "He's seated by the two attorneys, wearing a blue tie, blue jeans, white shirt, glasses." Thomas Hamm, an investigator for the Lincoln Police Department, identified Privat as the possessor of a pocketknife taken from Privat by the Topeka Police Department when he was arrested. Hamm was asked if Privat was present in the courtroom, to which he said yes and described Privat as "seated at the defendant's table to the left of Mr. Gooch, wearing a coat and tie, blue jeans." Erisman, owner of the Panic, was asked to tell the jury where the man who attempted to enter her bar with LeGer was seated and what he was wearing. She answered, "He's seated in that chair (pointing) right there and he's wearing a grayish suit and blue jeans and a tie." At a later side-bar discussion concerning Privat's hearsay objection to the content of the identification LeGer presented to Erisman, the following exchange occurred: [THE COURT:] Let me touch on something different. Mr. Kelly, what good does it do to have a witness, when you ask them to see that person in the courtroom for them to respond: Yes, I do. He's wearing a gray jacket and white shirt, sitting over there. What good does that do? What relevance does that have to do with anything? MR. KELLY: Well, Judge, in my career I've had five or six different court judges tell me five or six different ways that I'm to identify the defendant. I've had several judges specifically tell me that I'm not to 33 comment on the record or to ask that the record will reflect the defendant as being identified. And, so, for thatI do not ask that question.... THE COURT: Well, be that as it may. When she says he's sitting over there, how do I know that he isn't sitting back in the spectator gallery as a spectator? That doesn't help the appellate court at all. You don't even have herhave him sitting at counsel table, your counsel table, theirs, or anywhere else. It doesn't mean anything. That's completely aside from whether you ask the Court toto have the record reflect that she's identified the defendant. If you ask me to have the record reflect that, I will do that. But completely aside from that, her response is he's sitting over there in a gray jacket. Doesn't mean anything. MR. KELLY: I understand. And I'll ask the question. But, I think it does have meaning on the trial level, because the triers of fact are there to make the observations. Whether or not it gets to the appellate level, I suppose I leave up to the defense attorneys. THE COURT: Well, but it may have some relevance here. MR. KELLY: Yes, sir. THE COURT: You have to keep in mind the record. MR. HAYS: I might add something, Judge. If Mr. Kelly asked that the record reflect that she's identified the defendant, I would object to that because I think that's the jury's decision to make. THE COURT: Well, the objection is noted. It's premature at this point. So, it's overruled. Taking his cue from the court, when the prosecutor resumed his direct examination of Erisman, the following occurred: [Q.] I'll ask you again, can you tell me if that second individual is here in the courtroom? A. Yes, he is. Q. Can you tell me where he is seated? A. He's seated right there, the third person over on the right. (Pointing). Q. Is that at the Defense counsel table? A. Uhm-hum; yes. Q. Can you tell me what he is wearing? A. He's wearing a gray jacket with blue jeans and a tie. MR. KELLY: I'd ask the record to reflect that the witness has identified the defendant. MR. HAYS: And I would object. I think that's a jury question. THE COURT: The record will so reflect. Finally, when LeGer testified, he was asked if Privat was in the courtroom today to which he answered yes. When asked to identify him, LeGer said: A. He's sitting over there with his attorney. Q. What's he wearing? A. Suit and a tie. Q. And is he the person on the extreme right-hand side of that table? A. Yeah. MR. JAUDZEMIS: The record should reflect the witness has identified the defendant. MR. HAYS: I would object. THE COURT: The record will so reflect. 2. CROSS-EXAMINATION OF CODEFENDANT The direct evidence introduced as proof of Privat's culpability was offered solely by his codefendant, LeGer. Privat's counsel aggressively cross-examined LeGer concerning his possible mendacity. The evidence reflected that LeGer left Kansas and went to Salt Lake City, Utah, to avoid talking to the police about the disappearance of Grover. When in Salt Lake City, he asked his mother to call the shelter at which he was staying and tell them that she was LeGer's grandmother in Phoenix and that LeGer was authorized to come to Phoenix and stay with her. LeGer said the purpose of this fraud was to get the shelter to pay for his transportation to Phoenix. LeGer admitted that on three occasions while in Salt Lake City, he had telephone 34 conversations with his mother in Kansas, where, when she asked if he had killed a man, he lied to his mother and told her no. LeGer agreed that his motivation for contacting the Lincoln Police Department was to give them his side of the story before Privat gave them his. LeGer admitted that the first time he talked to the Lincoln police, he did not tell them he had put Privat's belt around Grover's neck and choked him. Privat's counsel also questioned LeGer about lying to the Lincoln police when asked whether he had gotten into trouble while working on a seismic crew with Privat in Texas. LeGer admitted to misleading the police, but denied that he had once beaten and robbed a man who was leaving a bar in Lubbock, Texas, even after being confronted by Privat's counsel with LeGer's deposition in which he admitted beating and robbing a man in Lubbock. LeGer admitted that he did not tell the Lincoln police the first time he talked to them that it was always their plan to go to a bar to find someone to rob, and that in his deposition, he likewise denied this fact. LeGer admitted that he lied to the police when he initially told them he had no idea why Privat had asked Grover to come back to their motel or why they decided to take Grover to Branched Oak Lake. Furthermore, LeGer admitted he initially minimized the extent of his participation and overstated the extent of Privat's participation in the actual murder. Finally, Privat's counsel attempted to question LeGer about his transfer from jail to the Lincoln Regional Center. At this point, the prosecutor asked for a sidebar and reminded the court of its motion in limine, which precluded the introduction of any evidence concerning LeGer's mental condition. This motion in limine does not appear in the record. Privat's counsel told the court that he intended to offer evidence to show that LeGer had feigned a suicide on three occasions in order to be placed in the regional center, and that he would not go into any diagnosis of LeGer's mental condition. The prosecution then claimed any allegation of feigned suicide was unsubstantiated and demanded to know the basis for such an accusation. In response, Privat's counsel offered a letter written by LeGer to his physician at the regional center. When asked by the court whether he had seen this letter before, the prosecutor stated that he had. The letter reads as follows: 2/17/94 Dr. Martin, The game playing is over. I've been taking up bed space and toying with my life. The suicidal acts I've already made have been made to draw attention to myself. I'm no more suicidal than you might be and I feel the hospital is set up to help the mentally insane not someone who's facing time in the penetary [sic]. This is just a way to stay out of jail for me and I feel that I am ready to go back to jail and get on with my time. If I really wanted to kill myself I could have done it numerous other ways. So use your good judgment and figure it out. I'm giving you my 48 hour notice to be discharged. Let's get it on jails not going anywhere, we can't stop the inevitable. Sincerly [sic] Troy LeGer 2-17-94 2:33 pm The State then attempted to claim that Privat was in wrongful possession of the letter and that receiving the letter in evidence would be a violation of the physician-patient privilege. The trial court found that the prosecutor was without authority to assert such privilege for the witness and asked both counsel if they would reserve the remainder of the cross-examination until LeGer's attorney could be contacted, so that the court could ascertain whether he wished to assert the privilege for his client. In any event, the court received the letter in evidence, but only for the purpose of showing the good faith basis of Privat's line of cross-examination. Once LeGer's attorney was contacted, he stated his client did not waive any privileges that he may have. After further argument 35 by counsel, the court sustained the State's objection to the receipt in evidence of LeGer's letter to his doctor, based on the fact that the trial court was of the opinion that Privat did not have a right to be in possession of LeGer's medical record and that LeGer had not waived his physician-patient privilege. Privat's counsel then made a motion to strike LeGer's testimony absent a waiver of the privilege, which the court immediately overruled. III. SCOPE OF REVIEW A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. On a claim of insufficiency of the evidence, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. State v. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995). IV. ASSIGNMENTS OF ERROR Privat assigns eight errors which may be consolidated into three: (1) The trial court erred in ordering the record to reflect witnesses Erisman and LeGer identified Privat in court; (2) the trial court erred in sustaining the State's objection to Privat's cross-examination of LeGer concerning LeGer's letter to his treating physician and in overruling Privat's subsequent motion to strike LeGer's testimony because Privat's right to confront a witness against him had been impaired; and (3) the trial court erred in overruling Privat's motions for mistrial and for directed verdict at the close of the State's evidence, and the verdict is not sustained by the evidence and is contrary to law. V. ANALYSIS 1. IMPROPER COMMENT BY TRIAL COURT Privat contends that the trial judge either expressed an opinion about the evidence or that the trial judge testified as a witness when he directed the record to reflect that two witnesses described Privat when asked whether the subject of their testimony was present in the courtroom. The prejudice, Privat argues, is that the credibility of each witness is at issue and when a trial judge, in front of the jury, directs the record to reflect a witness' testimony in a certain manner, the judge has effectively removed the issue of this witness' credibility from the jury. In addition, Privat claims directing the record to reflect a fact which constitutes an element of the crime implicates his right to have each element of the crime decided by the jury. The State counters by arguing that no error exists because the trial court did not comment on a controverted fact. Thus, the trial court did not remove from the jury's consideration an issue of fact, nor did it resolve an issue of witness credibility. Instead, the trial court simply clarified the record for the purpose of appellate review. To establish reversible error, a defendant must demonstrate that a trial court's conduct, whether action or inaction during the proceeding against the defendant, prejudiced or otherwise adversely affected a substantial right of the defendant. State v. Chapman, 234 Neb. 369, 451 N.W.2d 263 (1990). Improper comments by the trial judge may be prejudicially erroneous when they tend to discredit a witness and his testimony, or when they tend to enhance a witness' credibility. State v. Rodriguez, 244 Neb. 707, 509 N.W.2d 1 (1993). As a general rule, "It is the duty of the court to abstain carefully from any expression of opinion or comment on the facts or evidence, not only in its charge to the jury... but also on the examination of witnesses and otherwise during the course of the trial. The trial judge should not deny the existence of any fact bearing on the innocence of accused, or make any remark or inquiry in the presence of the jury concerning matters of fact at issue which indicates his opinion as to such facts." Hansen v. State, 141 Neb. 278, 286, 3 N.W.2d 441, 446 (1942). When the trial judge affects the credibility of a witness, either negatively or positively, the judge invades the province of the jury. State v. Rodriguez, supra. We reject Privat's assertion that the trial court made an improper comment in front of the jury. The discussion in which the trial court suggested to the prosecutor 36 that he should make a better record for the purposes of review was held at side-bar, outside the presence of the jurors. Before the jury, the court merely ruled on the State's request that the record should reflect the witness identified Privat by stating, "The record shall so reflect." As a general rule, a remark by the court in admitting or excluding evidence is not prejudicial when it amounts to no more than a ruling on the question or where it is made to expedite the trial. 75 Am.Jur.2d Trial § 284 (1991). "`[A] trial court generally is not impermissibly expressing an opinion when it makes ordinary rulings during the course of the trial.'" State v. Corbett, 339 N.C. 313, 330, 451 S.E.2d 252, 261 (1994) (quoting State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988)). This court has consistently followed the same general rule. In State v. Bideaux, 219 Neb. 718, 365 N.W.2d 830 (1985), the defendant objected to the State's closing argument, asserting that the evidence did not reflect the State's argument. In ruling on the objection, the trial court stated, "`I think the evidence does reflect it, counsel.'" Id. at 723, 365 N.W.2d at 834. We held the statement by the trial court to be tantamount to merely saying "overruled," and therefore it was not prejudicial to the defendant. In contrast, in State v. Rodriguez, supra, during cross-examination of the only witness who could connect the defendant to the crime, defense counsel objected that a detective seated at the prosecution table was coaching the witness. The trial judge responded by stating, "`No, he wasn't. I was watching him.'" Id. at 709, 509 N.W.2d at 3. We held this statement was not only an improper comment as it enhanced the witness' credibility, but it also had the effect of making the judge a witness in the trial. The instant case is much like Bideaux. Here, the trial court did not comment on any fact in controversy, offer its opinion concerning the significance of the witnesses' testimony or their credibility, nor did it interject information extraneous to the witnesses' testimony in an effort to impeach or bolster their credibility. We also reject Privat's contention that the action of the trial court affected his substantial right to have each element of the crime charged determined by the jury. This is so because Privat never claimed the witnesses' in-court identifications were of someone else or incorrect in any other way. Five witnesses described Privat as the subject of their testimony. Four of which, Pringle, Hall, Hamm, and Erisman, used substantially the same terms to describe Privat. Three said he was wearing blue jeans and a coat and tie, and one said he was wearing blue jeans and a shirt and tie. Three also said Privat was seated at defense counsel table, and the record shows the fourth said he was sitting over there and pointed. In the instant case, the prosecutor's request that the record should reflect the in-court identification of Privat was an articulation of the obvious for purposes of appellate review. Accordingly, we conclude that the trial court, in ruling on the State's request, neither expressed an opinion about the evidence, nor testified as a witness, under the circumstances of the instant case. 2. EXCLUSION OF EVIDENCE/OPPORTUNITY TO CROSS-EXAMINE We initially note that Privat does not assign as error the trial court's refusal to receive into evidence LeGer's letter to his treating physician. Thus, for the purpose of disposing of this appeal, we assume, without deciding, that the trial court correctly excluded from evidence the letter that LeGer wrote to his doctor while confined in the Lincoln Regional Center. However, Privat asserts that it was error to deny him a full and fair opportunity to cross-examine LeGer about the topic of the letter (i.e., feigning suicidal thoughts to stay out of jail) in order to demonstrate LeGer's propensity to lie. Privat argues that when a witness refuses to waive the physician-patient privilege in such instance, the accused is denied the opportunity for meaningful cross-examination of a witness against him. Further, Privat contends that the only remedy in such case is to exclude in its entirety the witness' testimony pursuant to our rule 37 in State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989). In Trammell, we held that where the physician-patient privilege protects from disclosure the confidential communication of a witness, and "where the witness refuses to waive the privilege, the result is that the testimony of the witness is inadmissible because the defendant is prevented from full and, perhaps, effective cross-examination of the witness." Id. at 142, 435 N.W.2d at 201. However, when the object of the cross-examination is to collaterally ascertain the accuracy or credibility of the witness, the scope of such inquiry is ordinarily subject to the discretion of the trial court, and, unless abused, its exercise is not reversible error. State v. Ballard, 237 Neb. 729, 467 N.W.2d 662 (1991). Thus, the issue as framed by Privat is not whether the trial court erred by excluding LeGer's letter, but, rather, whether the trial court abused its discretion in cutting off cross-examination regarding the topic of the letter, thereby denying Privat the opportunity for meaningful cross-examination of a witness against him; if so, what remedy is then required. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution, as well as article I, § 11, of the Nebraska Constitution, guarantees one accused in a criminal prosecution the right to confront those witnesses against him. State v. Hartmann, 239 Neb. 300, 476 N.W.2d 209 (1991). This right of confrontation means more than merely being allowed to confront the witness physically. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). However, the right to confront witnesses only "`guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" (Emphasis in original.) Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)). In Van Arsdall, supra, the Court held that a defendant's rights secured by the Confrontation Clause were violated when the trial court prohibited all inquiry into the possibility that a witness would be biased as a result of obtaining favorable treatment from the state in regard to a different criminal matter in exchange for his testimony. The Court stated: We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska, supra, at 318 [94 S.Ct. at 1111]. Respondent has met that burden here: A reasonable jury might have received a significantly different impression of Fleetwood's credibility had respondent's counsel been permitted to pursue his proposed line of cross-examination. 475 U.S. at 680, 106 S.Ct. at 1436. Similarly, in Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam), the Court held that the trial court violated the accused's right of confrontation when it kept all evidence of a rape victim's possible reason to lie from the jury. Quoting Van Arsdall, the Court concluded that had a reasonable jury been informed of this reason to lie, it might have received a significantly different impression of the witness' credibility. This court has also considered this issue. In State v. Hartmann, supra, we held that denying a criminal defendant all opportunity to cross-examine an adverse witness in regard to that witness' pending civil lawsuit against the defendant was an abuse of discretion and violative of the defendant's confrontation right. See, also, State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994). The common thread which runs through Van Arsdall, Olden, and Hartmann is that the accused was denied all opportunity to cross-examine an adverse witness in regard to a specific, prototypical form of bias. Other jurisdictions have had the occasion to consider 38 cases where, like in the instant case, the trial court merely limited the extent to which cross-examination would be allowed in regard to the general credibility or bias of a witness on a collateral matter. In State v. Bogenreif, 465 N.W.2d 777 (S.D.1991), the defendant, an inmate in the South Dakota State Penitentiary, was convicted of aggravated assault stemming from an altercation with another inmate. At trial, the victim testified on either direct or cross-examination that he was an inmate at the penitentiary, that he was serving a sentence for grand theft, and that at the time of trial, he was a trustee assigned to a detachment unit in Yankton. On both direct and cross-examination, the victim was questioned about several letters he had written to the penitentiary authorities disclaiming responsibility for fights with other inmates, including the defendant, he predicted would occur unless he were moved. When defendant's counsel began questioning the victim in an attempt to suggest that his transfer from the penitentiary to the trustee unit was in exchange for his testimony, the court, on its own motion, overruled that particular line of cross-examination. The South Dakota Supreme Court concluded that defense counsel had been permitted to expose to the jury facts from which they could judge the victim's credibility. The mere fact that the defendant was not allowed to pursue a line of questioning suggesting that the altercation was initiated by the victim so that he could secure better treatment did not violate the defendant's right of confrontation. "Here, a reasonable jury probably would not have had a significantly different impression of [the victim's] credibility if the proposed line of cross-examination had been permitted." Id. at 782. Likewise, in People v. Canter, 197 Mich. App. 550, 496 N.W.2d 336 (1992), the Michigan Court of Appeals concluded a defendant's confrontation rights were not violated when the trial court allowed the defendant to inquire into many different collateral matters on cross-examination in order to challenge the witness' general credibility, but foreclosed other areas of inquiry when it involved nothing more than additional collateral matters challenging the witness' general credibility. We are persuaded by the reasoning in the above cases and hold that an accused's constitutional right of confrontation is violated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, or (2) a reasonable jury would have received a significantly different impression of the witness' credibility had counsel been permitted to pursue his or her proposed line of cross-examination. In the instant case, Privat's counsel was not absolutely prohibited from engaging in appropriate cross-examination designed to show a lack of credibility on the part of LeGer; in fact, counsel was properly granted significant latitude in challenging LeGer's general credibility. Through effective cross-examination, Privat exposed the fact that LeGer asked his mother to lie to the people in charge of the Salt Lake City shelter at which LeGer was staying, so that the shelter would provide LeGer with busfare to Phoenix. LeGer also admitted on cross-examination that he contacted the Lincoln police in order to tell his side of the story before Privat could do so. Furthermore, cross-examination revealed that LeGer's side of the story continually evolved, at first maximizing Privat's involvement while minimizing his own. LeGer admitted, on cross-examination, lying to his mother and the Lincoln police investigators over and over again during the course of the investigation as set forth in part II(2) above. Inquiry into LeGer's letter to his physician regarding feigned suicidal tendencies would do nothing more than incrementally cast further doubt about LeGer's general credibility based on a collateral issue. Accordingly, we conclude that Privat's constitutional right of confrontation was not violated in the instant case, as he was not absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of LeGer. We further conclude, beyond a reasonable doubt, that a reasonable jury would not have received a significantly different *39 impression of LeGer's credibility had Privat's counsel been permitted to pursue cross-examination on the collateral matter of LeGer's letter to his physician. 3. SUFFICIENCY OF EVIDENCE Privat assigned as error that the verdict is not sustained by sufficient evidence and is contrary to law. However, the only argument offered with respect to this assignment is if LeGer's testimony is stricken, then there is insufficient evidence to sustain Privat's conviction. Absent plain error, assignments of error not discussed in the briefs will not be addressed by this court. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993). Errors assigned but not argued will not be addressed. McWhirt v. Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996); Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996). Accordingly, having determined that LeGer's testimony should not be stricken, coupled with the fact that there is other properly admitted evidence supporting the guilty verdict, we find there is no merit to Privat's sufficiency of the evidence claim. See State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995). VI. CONCLUSION Because we conclude that all of Privat's assigned errors are without merit, as first noted in part I above, we affirm the judgment of the district court. AFFIRMED.	{ "pile_set_name": "FreeLaw" }
T.C. Summary Opinion 2007-206 UNITED STATES TAX COURT DOUGLAS W. AND GAIL CAPLE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 22697-04S. Filed December 10, 2007. Douglas W. and Gail Caple, pro sese. Mark D. Peterson and Mark Miller, for respondent. GOLDBERG, Special Trial Judge: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. Pursuant to section 7463(b), the decision to be entered is not reviewable by any other court, and this opinion shall not be treated as precedent for any other case. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code. - 2 - This matter arises from a petition for judicial review filed in response to a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 issued for unpaid Federal income tax for taxable years 1993 and 1994.1 The issues for decision are: (1) Whether petitioners may contest the liabilities respondent assessed for the taxable years 1993 and 1994, (2) whether respondent properly abated interest and adjusted accuracy-related penalties assessed against petitioners for 1993 and 1994 in accordance with an agreement between the parties, and (3) whether respondent’s Appeals officer abused her discretion in rejecting petitioner’s offer-in- compromise. Background Some of the facts have been stipulated and are so found. The stipulation of facts and the attached exhibits are incorporated herein by this reference. Petitioners resided in Appleton, Wisconsin, on the date the petition was filed. Until 1994, petitioner Douglas W. Caple (Mr. Caple) worked as a night-shift first-aid responder at Ocean Angle Steel, an industrial plant. After leaving this position sometime 1 The outstanding Federal tax owed for taxable year 1993 has been paid in full as a result of respondent’s applying petitioners’ overpayment refunds from subsequent years to the amount owed for taxable year 1993. Respondent also applied a portion of petitioners’ overpayment refunds to the amount owed for taxable year 1994. As of Aug. 21, 2006, the outstanding liability owed for 1994 was $14,670.74. - 3 - in 1994, Mr. Caple worked part time both as a school bus driver and as a manager at Best Buy, an electronics retailer. Most recently, Mr. Caple has worked as a day trader of stocks.2 Petitioner Gail Caple (Mrs. Caple) is employed by Affinity Health Systems as an insurance specialist. Before Mr. Caple’s separation from Ocean Angle Steel, he underwent job-related medical testing that uncovered a condition known as primary sclerosing cholangitis, a terminal disease, the only known cure for which is a liver transplant. At or near the time of Mr. Caple’s diagnosis, his father (who was also suffering from an unspecified terminal illness) gave petitioners the funds necessary for Mr. Caple to pay for a liver transplant, provided he were to receive a donor organ. Although petitioners attempted to “shelter”3 this gift, they later used the funds for unspecified expenses. Petitioners have one child, Ashley Caple (Ashley), who is a student at the University of Wisconsin at Oshkosh. In addition to paying Ashley’s college expenses totaling $14,000 per year (tuition, room, and board), petitioners maintain health insurance coverage for Ashley. Petitioners incurred all medical costs for 2 In 2003, petitioners reported sales in excess of $2 million from Mr. Caple’s day trading activity. 3 This description is petitioners’, not the Court’s. - 4 - Ashley’s care that were not otherwise covered by their insurance.4 Petitioners’ 1993 and 1994 Taxable Years In taxable years 1993 and 1994, petitioners sold Wal-Mart stock for $57,400 and $56,650, respectively. Petitioners failed to report the proceeds from either sale on their 1993 or 1994 Federal income tax return. Respondent commenced an examination of petitioners’ 1993 and 1994 Federal income tax returns. Following notice that these returns had been selected for examination, petitioners promptly contacted respondent’s Appeals Office; they were unable to reach a mutually satisfactory resolution to the matter of petitioners’ unreported income. On December 6, 1996, respondent sent petitioners a notice of deficiency for taxable years 1993 and 1994. The notice of deficiency was sent to petitioners’ current address, and it informed petitioners of their right to file a petition for redetermination with the Court no later than 90 days from the date of mailing. Petitioners filed a petition with the Court on July 8, 1997, citing a series of “extra-ordinary [sic] circumstances that prevented [them] from filing” before the 90- 4 Aside from petitioners’ testimony regarding Ashley’s various medical conditions, and proof of their insurance, the record is devoid of any evidence substantiating the costs petitioners actually incurred with respect to Ashley’s medical expenses. - 5 - day period for filing had elapsed. Petitioners cited a series of problems, including: (1) Mr. Caple’s terminal illness,5 (2) the death of Mr. Caple’s father in February 1997, (3) two “stressful lawsuits” of an unspecified nature, and (4) petitioners’ “severe” financial problems. On September 3, 1997, the Court issued to petitioners a notice of filing by respondent of a motion to dismiss for lack of jurisdiction. Petitioners were required by the notice of filing to file an objection to respondent’s motion to dismiss within 20 days; they failed to do so. On October 8, 1997, the Court granted respondent’s motion to dismiss. Respondent assessed petitioners’ Federal income tax owed for taxable years 1993 and 1994, together with interest and penalties, on June 23, 1997. Respondent’s statements of account show that from the date the assessment was made, there occurred a series of payments, credits, additional assessments, and adjustments with respect to both taxable years at issue. As of May 31, 2004, the date on which petitioners requested that a copy of respondent’s statements be mailed to them, the transcripts showed a zero balance remaining for taxable year 1993 and a balance remaining (including interest and penalties) of $21,606.92 for taxable year 1994. 5 Mr. Caple was told by his doctors in 1996 that he had only 2 years to live. - 6 - Collections Action and Petitioners’ Offer-in-Compromise On June 24, 2002, respondent filed a Notice of Federal Tax Lien and Your Right to a Hearing Under IRC 6320 showing $1,346.96 owed for taxable year 1993 and $15,346.52 owed for taxable year 1994. Respondent sent to petitioners a Final Notice--Intent to Levy and Notice of Your Right to a Hearing on June 27, 2002. On August 19, 2002, petitioners mailed to respondent a Form 12153, Request for a Collection Due Process Hearing (CDP hearing). Respondent notified petitioners by letter on September 19, 2002, that he had received petitioners’ request for a CDP hearing and, in turn, had forwarded that request to his Appeals Office. On May 13, 2004,6 Appeals Officer Beverly A. Roberts (Ms. Roberts) responded in writing to petitioners’ request for a CDP hearing. Ms. Roberts informed petitioners that they could request either a face-to-face meeting or a telephone conference. Petitioners requested a telephone conference with Ms. Roberts for their CDP hearing on May 27, 2004. 6 At trial, respondent acknowledged that for reasons unbeknownst to him, no action had occurred on petitioners’ file from September 2002 until May 2004. Our examination of the record, however, indicates that respondent was notified on July 24, 2002, that petitioners were parties in a bankruptcy suit. - 7 - During their CDP hearing,7 petitioners requested that their liabilities for 1993 and 1994 be “dropped” because of Mr. Caple’s health status and the “inefficiency of the IRS personnel.” Petitioners admitted during the hearing that while they had “sufficient assets” to pay the amounts owed, they had no current income and were living at “the poverty line.”8 During the hearing, petitioners discussed the general nature of Mr. Caple’s illness, but they did not provide Ms. Roberts with any specific documentation relating to his current medical condition and/or prognosis. Petitioners did not provide Ms. Roberts with any documentation relating to Mr. Caple’s medical condition following the hearing. Petitioners did provide a written statement detailing Mr. Caple’s and Ashley’s medical ailments; however, they did not provide any documentation in support of their statements.9 7 Ms. Roberts and Mr. Caple exchanged telephone messages before and on May 27, 2004. Sometime in the morning of May 27, 2004, Mr. Caple left Ms. Roberts a voicemail message asking her to “call him back after he got back from his run at 1 p.m.” 8 Petitioners did not provide Ms. Roberts (either before or after the hearing) with evidentiary support for their claim that they were living at the “poverty line.” Petitioners did, however, provide a summary of assets to respondent’s Appeals Office that showed their total general equity to be $169,570. We note that in 2004, the Federal poverty line for a family of three was set at $15,670. Annual Update of HHS Poverty Guidelines, 69 Fed. Reg. 7336 (Feb. 13, 2004). 9 Petitioners’ only daughter, Ashley, was 16 years old at the time of the hearing. When this matter was before the Court, (continued...) - 8 - Mr. Caple also raised the issue of whether respondent had abated interest and adjusted accuracy-related penalties with respect to their accounts for 1993 and 1994. Respondent had previously agreed to abate interest and adjust the penalties assessed against petitioners, pursuant to an agreement reached between petitioners and respondent’s Milwaukee Problem Resolution Office. During the hearing, petitioners questioned whether respondent had, in fact, properly abated the interest and adjusted these penalties per their agreement. Ms. Roberts reviewed petitioners’ account records during the hearing and explained to them that these transcripts showed that the section 6662 penalties had been adjusted to zero and the interest had been abated. Per petitioners’ request, Ms. Roberts then sent a copy of these account statements/transcripts to petitioners following the hearing. On June 29, 2004, petitioners submitted to respondent a Form 656, Offer in Compromise (OIC). Petitioners offered to settle the outstanding amount of tax owed by them as follows: (1) A payment of $100 (to be obtained from “checking accounts, investment accounts, and selling autos”10), (2) the application 9 (...continued) Ashley was a college student and covered under their health insurance plan. 10 Petitioners admitted, both during the hearing and when this matter was heard by the Court, that in 1999, they purchased (continued...) - 9 - of “$18,000 in tax credits”, and (3) petitioners’ expected “future tax benefits.” Petitioners attached five typed pages to their Form 656 explaining their OIC. In the attachment, petitioners stated that their OIC was reasonable in the light of their protracted dealings with respondent since 1996 and Mr. Caple’s and Ashley’s extensive medical ailments and the costs associated with their care. On September 22, 2004, respondent rejected petitioners’ OIC on the grounds that petitioners had failed to substantiate their hardship and that they had sufficient assets to pay the amount owed. On October 27, 2004, respondent issued petitioners a Notice of Determination Concerning Collection Action(s) Under Section 6320, in which respondent determined the notice of Federal tax levy for taxable years 1993 and 1994 to be proper and determined that collection of the tax liabilities for those years should proceed. On June 26, 2006, respondent issued another notice of intent to levy. Petitioners filed a “Petition for Redetermination of a 10 (...continued) for $12,000 an antique Porsche that in 2004, had a fair market value of $9,000, and that in 2004, they sold for $14,000 a motor boat that they had owned for several years. Petitioners maintain that they “refunded” the proceeds from the sale of the boat to Ashley, because they had previously “borrowed” $14,000 from her college fund. - 10 - Deficiency” requesting the elimination of all taxes owed, including penalties and interest. Discussion Before a levy may be made on any property or right to property, taxpayers are entitled to a notice of intent to levy and notice of their right to a fair hearing before an impartial officer of the Commissioner’s Appeals Office. Secs. 6330(a) and (b), 6331(d). If the taxpayers request a hearing, they may raise in that hearing any relevant issue relating to the unpaid tax or the proposed levy, including challenges to the appropriateness of the collection action and “offers of collection alternatives, which may include * * * an offer-in-compromise.” Sec. 6330(c)(2)(A). A determination is then made that takes into consideration those issues, the verification that the requirements of applicable law and administrative procedures have been met, and “whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary.” Sec. 6330(c)(3)(C). Petitioners have not argued that any portion of their outstanding tax liability is uncollectible; however, they do argue that they were unfairly denied an opportunity to file a petition with the Court for redetermination of the deficiencies, and that a portion of their liability--the interest and the - 11 - penalties applied under section 6662--was not properly abated and adjusted in accordance with the agreement they reached with respondent’s Problem Resolution Office. We will first consider the merits of these arguments. Petitioners’ Right To Contest the Underlying Liability The Court’s jurisdiction to redetermine a deficiency depends upon the issuance of a valid notice of deficiency and the timely filing of a petition for redetermination. Levitt v. Commissioner, 97 T.C. 437, 441 (1991). Assuming the Commissioner has issued a valid deficiency notice, section 6213(a) provides in pertinent part that the taxpayer must file a petition with the Court within 90 days of the mailing of the deficiency notice. Respondent mailed a deficiency notice to petitioners on December 6, 1996. It is undisputed that petitioners received this notice in due course. Petitioners failed to file a petition for redetermination within 90 days of the date the notice was mailed. Because petitioners’ reasons as to why they did not file a petition are irrelevant,11 we hold that petitioners are not entitled to raise as an issue their underlying tax liability. 11 Petitioners admit their timely receipt of the notice. They stated that the declining health of Mr. Caple’s father, and other factors, left them unable to deal with the situation. “Once respondent places the deficiency notice within the taxpayer’s grasp * * * [in ample time to file a petition with the Tax Court, respondent] satisfies the requirement of section 6212; if the taxpayer turns a blind eye to that information, she does so at her own peril.” Patmon & Young Profl. Corp., T.C. Memo. 1993-143, affd. 55 F.3d 216 (6th Cir. 1995). - 12 - Abatement of Interest and Adjustment of Penalties Petitioners challenge respondent’s collection action on the grounds that respondent did not properly account for an agreement reached between petitioners and respondent’s Milwaukee Problem Resolution Office to abate all interest and adjust the section 6662(e) penalty to zero for each of the taxable years at issue. Ms. Roberts testified that the agreement reached between the parties applied to the original assessment only and did not apply to the period after the assessment where petitioners’ outstanding liability went unpaid. Our review of the record12 indicates that respondent did, in fact, abate interest and adjust the section 6662(e) penalty to zero with respect to the original assessment for each of the taxable years in issue. We believe Ms. Roberts’s testimony that the agreement between the parties applied to the original assessment only and not to the period after the assessment through the present. Accordingly, we hold that respondent did properly abate and adjust the interest and the section 6662 penalties with respect to the assessments made for petitioners’ 1993 and 1994 taxable years. 12 Specifically, respondent’s account statements for petitioners’ 1993 and 1994 taxable years. These documents were provided to petitioners, and petitioners offered no evidence to contradict their content. - 13 - Rejection of Petitioners’ OIC Because petitioners cannot dispute their underlying tax liability, we review respondent’s determination with respect to their OIC under the abuse of discretion standard. See sec. 6330(d); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000). We find that respondent’s rejection of petitioners’ proposed OIC was not an abuse of discretion. Respondent’s determination was based on all of the information petitioners provided reflecting their financial solvency to Ms. Roberts, respondent’s Appeals Officer. See Crisan v. Commissioner, T.C. Memo. 2003- 318; Schulman v. Commissioner, T.C. Memo. 2002-129. The Appeals officer reasonably determined, on the basis of petitioners’ yearly income ($35,616) and asset value (TD Waterhouse account, $41,301.41; vehicles--including “1995 boat”, $59,100; and Mrs. Caple’s profit sharing plan, $30,000)--totaling $166,017.41--that petitioners’ proposed OIC to pay $100 should be rejected. In addition to the $100 payment, petitioners also offered “$180,000 in future benefits” as part of their OIC. Unsure of exactly what petitioners meant by this offer, the Court attempted to ascertain petitioners’ intent. The Court’s query on this matter resulted in the following exchange: THE COURT: These are for future credits, not past credits? MS. CAPLE: Future credits. THE COURT: Future credits? - 14 - MR. CAPLE: Future credits. THE COURT: Well, suppose if, God forbid, both of you passed away, there would be no credits. MS. CAPLE: Right. That’s right. It’s not like you’re going to need them. MR. CAPLE: We would like to apply some of that * * *. On the basis of the foregoing exchange and Ms. Roberts’s testimony explaining why she could not consider “future credits” as part of petitioners’ OIC, we consider this portion of petitioners’ OIC to be no more than an irrelevant and misguided attempt on their part to satisfy their outstanding tax liability. Ms. Roberts did not abuse her discretion in rejecting this portion of petitioners’ OIC. Finally, and with respect to petitioners’ argument that Ms. Roberts refused to consider factors illustrating petitioners’ economic hardship and extraordinary medical expenses, we are unpersuaded, on the basis of the foregoing discussion of petitioners’ assets, that petitioners were unable to pay the $14,670.74 owed at the time of the hearing. Second, the record reflects only one letter, dated January 17, 1995, regarding Mr. Caple’s medical condition. Petitioners have provided no additional evidence, aside from their statements (which were neither substantive nor credible), to indicate the impact of either Mr. Caple’s or Ashley’s medical expenses, although they - 15 - admit that both father and daughter were at that time, and still are, covered under their medical insurance policy. Despite ample evidence to the contrary, petitioners have maintained that they are unable to make more than the $100 proposed in their OIC, an amount that respondent’s Appeals officer did not abuse her discretion in rejecting. We therefore hold that respondent’s determination was not an abuse of discretion and that respondent may proceed with his collection of the tax liability by levy upon petitioners’ property. Decision will be entered for respondent.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-1530 ___________ Abdulahi Issa; Hniya Kouttay, * * Appellants, * * v. * Appeal from the United States * District Court for the District City of Glencoe, and its Employees/ * of Minnesota. Agents; Police Chief Wesley Olson; * Officer Tim Trocke, Personally and * [UNPUBLISHED] in Their Capacities as Employees/ * Agents of the City of Glencoe; DMW * Properties; Kestrel Park Townhouses, * * Appellees. * ___________ Submitted: November 15, 2004 Filed: November 29, 2004 ___________ Before WOLLMAN, HEANEY, and FAGG, Circuit Judges. ___________ PER CURIAM. Abdulahi Issa wrote a bad check for a used squad car at an Iowa Department of Transportation (DOT) auction. The check listed Issa’s address in Glencoe, Minnesota. An Iowa DOT representative contacted the Glencoe police department regarding the check and spoke with Officer Tim Trocke, who stated he would try to make contact with Issa and give him a chance to pay for the car. On December 12, 2001, Officer Trocke went to Issa’s rented townhouse, but no one was there. He looked in the window, and it appeared to be vacant. The next day, Trocke contacted Brenda Plath, formerly Brenda Peterson, the property manager for Kestrel Park Townhouses, which are owned by DMW Properties. Plath stated Issa and his wife, Hniya Kouttay, had moved out. Plath gave the police consent to enter the townhome. When Officer Trocke went inside, the furniture was gone, except for a crib and an oven. Officer Trocke entered the bedroom and saw a computer printer and mail scattered over half of the bedroom floor. In an opened yellow envelope, there were about forty credit cards issued with different variations of the name “Abdulahi Yusuf Issa.” In the kitchen, Officer Trocke found documents showing money transfers in the thousands of dollars and a list of twenty to twenty-five squad cars Issa had purchased. The list particularly interested Officer Trocke, because in the wake of the recent September 11, 2001attacks at the World Trade Center, police departments including Glencoe’s had received a teletype from the Department of Homeland Security regarding the possible threat of attacks by terrorists using police squad cars. Based on officer Trocke’s observations, he called Police Chief Wesley Olson to the scene. The Federal Bureau of Investigation (FBI) was also notified. Issa’s property was boxed and taken to the Glencoe Police Department Evidence Room. The FBI eventually looked at the evidence and seized some of it. The remaining property was left at the Glencoe Police Department. On January 8, 2002, Issa was notified the property was ready for release and he had ten days to pick it up. At least three times, Issa came to the Glencoe Police Department to pick up the property. Each time, he complained a briefcase was not in with the boxed property and he would leave without anything. Twice, officers carried the boxes from the evidence room to the lobby for Issa to remove. The police repeatedly told Issa they did not have his briefcase and he should check with the FBI. On February 11, 2002, Officer Trocke told Issa he had until March 6, 2002 to pick up the property or the police would dispose of it. Issa again went to the police department with a vehicle -2- large enough to hold the boxes, but did not take them. After the deadline, police destroyed the property. Issa and his wife (collectively Issa) brought this action against the City of Glencoe, Chief Olson, Officer Trocke alleging the police officers violated Issa’s civil rights through an unlawful search and seizure of their rented townhome. Issa also brought civil rights and negligence claims against DMW and Kestrel. The district court* granted summary judgment in favor of the City and the officers based on official and qualified immunity. The district court granted summary judgment for DMW and Kestrel holding that the civil rights claims could not be maintained against private parties and that the negligence claims failed because DMW and Kestrel had no duty to protect Issa. On appeal, Issa does not challenge the grant of summary judgment to the City, but contends police officers Trocke and Olson were not entitled to summary judgment on the issue of qualified immunity. To survive a motion for summary judgment based on qualified immunity, Issa had to assert a violation of a constitutional right, show the right was clearly established, and raise a genuine issue of material fact regarding whether the officer knew or should have known acts his acts violated that right. Radloff v. City of Oelwein, 380 F.3d 344, 347 (8th Cir. 2004). A warrantless search violates the Fourth Amendment unless an exception to the warrant requirement applies. Katz v. United States, 389 U.S. 347, 357 (1967). One exception to the warrant requirement is consent to enter. United States v. Matlock, 415 U.S. 164, 171 (1974). Although a landlord generally lacks common authority to consent to a search of a tenant’s premises, a tenant who abandons the property loses any reasonable expectation of privacy the tenant once had in the premises. United * The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota. -3- States v. Brazel, 102 F.3d 1120, 1148 (11th Cir. 1997). Even if a landlord’s consent to enter a tenant’s residence is not valid, there is no Fourth Amendment violation if an officer has an objectively reasonable, although mistaken, good-faith belief that the consent to search is valid. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). We agree with the district court that entering the townhome did not violate the Fourth Amendment because it was reasonable for the officers to conclude that Issa no longer occupied the premises and that the property manager’s consent to enter the premises was valid. The landlord had told the officers Issa had moved out. The officer looked in the window, and the townhome appeared to be vacated. As for Kestrel and DMW, Issa does not appeal the dismissal of the § 1983 claim, but asserts they were not entitled to summary judgment on the negligence claim. We disagree. The district court properly disregarded the affidavit of the plaintiff’s “expert,” which dealt with dismissed statutory law claims and assumed nonexistent legal duties. Further, we agree with the district court that because a landlord-tenant relationship does not create a duty to protect under Minnesota law, Issa failed to show a genuine issue of fact regarding whether DMW or Kestrel owed a duty to protect Issa from the police. We thus affirm on the basis of the district court’s memorandum and order. See 8th Cir. 47B. ______________________________ -4-	{ "pile_set_name": "FreeLaw" }
201 Or. 663 (1954) 272 P.2d 203 MYERS v. STAUB and PORTLAND GENERAL ELECTRIC COMPANY (Cases Consolidated) Supreme Court of Oregon. Argued February 24, 1954. Affirmed June 23, 1954. 664 David Spiegel argued the cause for appellants. On the briefs were Lenske, Spiegel, Spiegel, Martindale & Bloom, of Portland. H.H. Phillips argued the cause for respondent. With him on the brief were Griffith, Phillips & Coughlin, of Portland. Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and PERRY, Justices. AFFIRMED. WARNER, J. Pursuant to a stipulation of the parties, the action of Vera Myers, widow of Byron Myers, against Raymond R. Staub and Portland General Electric Company and the like action of Lois Myers, widow of Robert Myers, against the same defendants were consolidated for trial and thereafter tried without the intervention of a jury. The plaintiffs obtained substantial judgments against the defendant Staub, who is not a party to this appeal. Both plaintiffs, however, appeal from a judgment dismissing their respective complaints against the defendant Portland General Electric Company (hereinafter referred to as the "electric company"). Their appeals to this court were also combined for argument. 665 The joint presentation of these cases in the trial court and in this court was a logical consequence of the strangely identical circumstances which preceded and accounted for the deaths of Byron Myers and his son, Robert Myers, both coworkers in the employ of the defendant Staub on his dairy farm in Clackamas county. Their deaths occurred on succeeding days at the same place on the Staub farm and apparently from the same cause. This situation gives rise to substantially the same facts pleaded in both causes of action and likewise accounts for the same questions of law that are projected in each cause. We will for the purposes of this opinion treat both causes as identical. Both actions were brought under the provisions of the Employers' Liability Law (ORS 654.305 to 654.335 [heretofore in prior codes known as the Employers' Liability Act]) to recover damages for the deaths of plaintiffs' respective husbands alleged to have resulted from the negligence of the defendants Staub and the electric company in maintaining and supplying electricity to a power line hung too close to the ground. The electric company here demurs to the complaints on the ground that they do not state a cause of action against it. Since we feel that the complaints are vulnerable to such attack, our examination of the facts is limited to the allegations in the complaints which, insofar as pertinent to this decision, are as more particularly pleaded in the complaint of plaintiff Lois Myers reading: "III. "That at all times herein mentioned defendant Raymond R. Staub was and now is the owner of the real property hereinabove described, and that 666 the said lines were operated, controlled and maintained by defendant Raymond R. Staub upon the property of defendant Raymond R. Staub at his request and with his knowledge of the voltage carried and for his use and purpose. "IV. "That said lines were connected to electric equipment and machinery that utilized said electricity, including a pumping system which consisted of an electrically motivated pump which pumped water from a dammed pond, a tributary of the Willamette River, and into irrigation pipes laid upon the said real property, and that said irrigation pipes were made of metal that conducted electricity. "V. "That on or about September 4, 1947, Robert Myers was an employee of defendant Raymond R. Staub and that the duties of the said Robert Myers as directed by defendant Raymond R. Staub, included working in and about and upon said electrically motivated pump and said irrigation pipes and in the presence and proximity of the said transmission lines, and also included the use, care and cleaning of said metal irrigation pipes, and that on or about September 4, 1947, while the said Robert Myers was so employed, he lifted a piece of the said pipe that was twenty feet long for the purpose of cleaning the same and causing any foreign matter therein to fall or be forced out; and that at said time said irrigation pipe was near the electric power lines which were maintained upon said property by defendant Portland General Electric Company as aforesaid. "VI. "That while Robert Myers was handling said pipe for the purposes above mentioned, said pipe came in contact with the above mentioned power line and the said Robert Myers was immediately and fatally electrocuted by the electric current from said transmission lines." 667 In Paragraph VIII we find the electric company's violation of the Employers' Liability Law stated as follows: "That defendant Portland General Electric Company was guilty of negligent, unlawful and reckless conduct and failed to use every device, care and precaution which it is and was practicable to use for the protection and safety of life and limb without impairing the efficiency of either the work of Robert Myers or any of said equipment, in transmitting electric energy of high voltage to and through said lines when it knew or should have known: "1. That said high voltage electric wiring was maintained upon the premises aforesaid too close to the ground at said time and place, so that the same constituted a hazard to any person employed upon said ground and especially any person handling twenty-foot pipe made of metal that conducted electricity, when it knew or should have known that such person would be in the vicinity. "2. That no notice of the high voltage of said transmission lines had been posted and no notice or warning of the high voltage of said transmission line given in any other manner. "3. That said line extended for the transmission of electric energy to a cabin or house upon said premises when there was no use on the part of or on behalf of defendant, Raymond R. Staub, for high electric voltage beyond said pumping system to said cabin but that nevertheless defendant Portland General Electric Company transmitted said high voltage electric current line beyond said pumping system. "4. That there were no transformers or other devices for the reduction of the electricity beyond said pumping station and in that the said transmission lines were not insulated beyond said point." In the complaint of the plaintiff Vera Myers the paragraphs of corresponding number read the same, 668 except the date September 3 is substituted for September 4 and the name Byron Myers is substituted for Robert Myers. The Employers' Liability Law is both a remedial and preventive statute providing a cause of action to certain individuals named therein against an employer for injury or death of an employee engaged in various hazardous occupations and requiring a high caliber of devices, care and precautions for the safety of those employees. It deprives the employer of the common law defenses of contributory negligence, the fellow servant rule and the assumption of the risk doctrine. Moreover, in an action for the death of an employee, the amount recoverable is not subject to the limitation of $20,000 found in the wrongful death act. ORS 30.020. In general, the Employers' Liability Law permits recovery where the injury or death results from certain hazardous conditions under the control of the employer and under which the employee is required to work. 1. It is not always necessary that the defendant be the injured workman's immediate employer but may be sufficient if such defendant's interlocking interests with the employer amount to "an intermingling of duties and responsibilities" so as to bring the relationship of the defendant to the workman within the spirit of the Employers' Liability Law. Drefs v. Holman Transfer Co. et al., 130 Or 452, 456, 280 P 505; Clayton v. Enterprise Electric Co., 82 Or 149, 161 P. 411. 2. The question for answer here is whether the facts as pleaded bring the instant cases within the embrace of the Employers' Liability Law as to the defendant electric company, as insisted by the plaintiffs. We are not inquiring whether defendant electric company 669 was or was not guilty of culpable negligence according to the standards fixed by the rules of common law. If it be assumed for the purposes of this discussion that the electric company is chargeable with culpable negligence within the rules of common law, the plaintiffs must, nevertheless, fail in their respective actions unless the provisions of the Employers' Liability Law apply to the facts disclosed by their complaints, because each plaintiff is suing in her individual capacity. If the Employers' Liability Law applies to the facts as alleged by their respective complaints, the plaintiffs in their individual capacities are then entitled to sue. If we find that the statute does not apply and if the defendant electric company is liable in damages for common law negligence, then the representatives of the decedent spouses of the respective plaintiffs must sue. Jylha v. Chamberlain, 168 Or 171, 173, 121 P2d 928; Saylor v. Enterprise Electric Co., 106 Or 421, 424, 212 P 477. If the Employers' Liability Law does not embrace a factual situation like the one pleaded in the instant case, the demurrer must be sustained, even though it is assumed that the defendant electric company was guilty of negligence according to common law standards. Saylor v. Enterprise Electric Co., supra. Plaintiffs are adamant in their insistence that their respective complaints state causes of action against the electric company within the purview of the Employers' Liability Law. They observe, and we think correctly, that the five points of attack relied upon by the respondent electric company may properly be resolved into one, namely, the absence of and necessity for an allegation that the electric company had control over the means by which the decedents Myers met their deaths. 670 As against the defendant Staub the plaintiffs allege, as the primary element of his negligence, the presence of high voltage transmission lines controlled, operated and maintained by him too close to the ground. The "control", by which they seek to establish liability in the electric company, is predicated upon the electric company's alleged ability to cut Staub's power at its source and thus avoid the dangers incident to the inadequate insulation of the power line on the Staub premises arising from suffering the high voltage lines to remain hanging too close to the ground. Concerning such a situation, plaintiffs assert that "No better `insulation' existed than the cutting off of the power at its source". In essence, plaintiffs contend for a species of "remote control" in the electric company as a basis for its liability to plaintiffs, that is, "remote" from the instrumentality which caused the Myerses' deaths. Plaintiffs epitomize their concept of the electric company's "control" by claiming that the complaint alleges "in effect" that the electric company "failed to provide that `insulation' within its control, i.e., cutting off the supply of electrical energy, when it had knowledge of the fact that such insulation was required." Plaintiffs rely upon Clayton v. Enterprise Electric Co., supra, and McKay v. Pacific Bldg. Materials Co., 156 Or 578, 68 P2d 127, in support of their contention that, as employees of defendant Staub, the decedents had the protection of the Employers' Liability Law in their relation to the electric company. The facts in the case of Clayton v. Enterprise Electric Co., supra, are in many respects similar to the facts as alleged in the complaints of the appellants here. 671 The action in the earlier case was brought by a surviving spouse under the Employers' Liability Law against an electric company which had supplied electric current to Clayton's employer Roe. The fundamental difference between the Clayton case and the one at bar is that in the former the plaintiff alleged and proved "that the defendant [electric company] was the owner and controlled and operated the transmission system, and the wires and appliances by which the currents of electricity were carried into and connected with the motor and pumping machinery" of decedent's employer Roe (82 Or 151). We also learn from a reading of Clayton that the defective switch was the immediate cause of the employee's electrocution and that this switch was a part of the equipment which the Enterprise Electric Company owned and installed. In the case at bar, however, there is no allegation whatsoever that the electric company had any ownership or control over the wires which were involved in the deaths of plaintiffs' decedents. Indeed, the plaintiffs here with precise particularity allege a directly contrary situation in Paragraph III of their respective complaints where, it will be observed, they say "said lines were operated, controlled and maintained by defendant Raymond R. Staub [decedents' employer]" and where in Paragraph IX of their respective complaints they charge that defendant Staub "installed, operated, controlled and maintained * * * said high voltage transmission lines". This court in the Clayton case expressly recognizes the rule that the supplier of electrical energy is not responsible under the Employers' Liability Law for injuries caused by equipment over which it has no supervision or control, and our judgment in that case 672 was predicated upon the fact that the electric company did have such control. The Clayton case has been criticized as containing "language more sweeping than was necessary". Turnidge v. Thompson, 89 Or 637, 653, 175 P 281. Notwithstanding that Clayton is vulnerable to this charge, it still compels the conclusion that the Employers' Liability Law does not cover a situation in which there is no third party control of the injured employee or any control of the offending instrumentality involved. There is nothing in the complaints of the plaintiffs in this matter which remotely indicates that the electric company had any ownership or claimed any ownership in the offending transmission lines or in any part of the same that were situated on the Staub property or that it had "installed, operated, controlled and maintained" the same or any part thereof, as was evident in the Clayton case. There are no allegations in the complaints from which it may be inferred that the defendant electric company had any relationship to the Myerses as Staub's unfortunate employees. The electric company's relationship, if any, to the instrumentality causing the deaths of the Myerses, that is, to the defective insulation of the wires on Staub's property, can be gleaned only by inferring that, as the supplier of the electricity flowing over said lines, the company could at some place "insulate" the same by cutting off the power at its source. The other decision relied upon by plaintiffs in support of their proposition is McKay v. Pacific Bldg. Materials Co., supra, 156 Or 578, 68 P2d 127. This case also recognizes the rule that control of the instrumentality involved is the essential element to a cause of action under the Employers' Liability Law 673 against a defendant who is not the employer of the injured employee. In that case, as in the Clayton case, the offending instrumentality was under the control of one other than the employer of the injured employee. In our own research we are unable to discover any case decided by this court in which a third party other than the injured party's employer was held to liability under the Employers' Liability Law when such third party had no control over the instrumentality causing the death or injury to the employee. It is also of interest to observe that every act of negligence charged against the electric company in the complaints is referable solely to a duty of the master to his employees, namely, to furnish them a safe place in which to work. Under the complaints as drawn, this duty was beyond question incumbent upon Staub as the employer of plaintiffs' decedents. Upon him, and him alone, reposed the duty, required by the Employer's Liability Law in the instant matter, to see that "In the transmission and use of electricity of a dangerous voltage, full and complete insulation is provided at all points where * * * employes of the owner * * * transmitting or using the electricity are liable to come in contact with the wire". ORS 654.310(7). The supposed failure of the electric company to control the electric current flowing over the improperly insulated wires, which the complaints tell us the defendant Staub owned and "installed" and "were operated, controlled and maintained" by him upon his property, was not the proximate cause of the deaths of plaintiffs' decedents but, on the contrary, is properly attributable to the duty of the defendant Staub, as the Myerses' employer and master, to furnish the Myerses as his employees a safe place in 674 which to work. See Warner v. Synnes et al., 114 Or 451, 466, 230 P 362, 235 P 305, 44 ALR 904. Drefs v. Holman Transfer Co. et al., supra, 130 Or 452, 280 P 505, was an action for the recovery of a death claim under the Employers' Liability Law. The decedent Drefs at the time of the accident was an employee of Pacific Telephone & Telegraph Company and engaged in behalf of that company in making an excavation in one of the streets of Portland. While so doing, he was exposed to the dangers incident to the operation of trucks of the defendant Holman Transfer Company and the operation of vehicles of the defendant Arrow Ambulance Company; and as a result of their negligent and careless operation, plaintiff's decedent was run against and killed. No negligence was charged against the telephone company as decedent's employer, nor was it made a party to the action. Demurrers to the complaint by the transfer company and the ambulance company were sustained on the ground that it did not state a cause of action against them under the Employers' Liability Law. In the matter now before us, as in the Drefs case, there is no intermingling of duties and employees of the Myerses' employer and those of the defendant electric company in the work being prosecuted on the Staub property, nor are there any interlocking interests. This court in the Drefs case, after observing that the Employers' Liability Law "was a beneficent statute and as construed by this court, which has gone to the extreme of liberality in construing it, has resulted in extending to employees in hazardous occupations a degree of protection theretofore unknown", then proceeds to review the cases which had been decided up to that time wherein such liberality was exemplified by the appearance of "interlocking interests 675 between the different employers." Drefs v. Holman Transfer Co. et al., supra, at page 455. Necessarily in this review of cases of that character, Mr. Justice McBRIDE included Clayton v. Enterprise Electric Co., supra, 82 Or 149, 161 P 411, as the predecessor of those which followed, namely, Turnidge v. Thompson, supra, and Rorvik v. North Pac. Lumber Co., 99 Or 58, 190 P 331, 195 P 163. Concluding this analysis, Mr. Justice McBRIDE then quotes from the Rorvik case and observes (130 Or 459): "`In view of the able and exhaustive analysis of our Employers' Liability Act by Mr. Justice HARRIS in Turnidge v. Thompson, 89 Or. 637, 175 Pac. 281, which covers every phase of the question as to the persons who are within or without the act, we deem any attempt at further analysis or distinction unnecessary. From the lucid interpretation in that case and in other cases hereafter mentioned, we deduce the rule that the Employers' Liability Act does not extend to the protection of the general public as such, but that it does extend its protection to employees of the particular person owning or operating dangerous machinery or engaged in hazardous employments, and to other persons or employees of other corporations whose lawful duties require them to be or work about such machinery, or expose themselves to the hazards of the machinery or appliances in use by the owner thereof.' "This decision we have followed ever since, and we do not think that it extends to any case where the person charged with doing an injury sustains no such relation by contract or otherwise different from that which he sustains to the whole public." (Italics ours.) 3, 4. Applying the foregoing rule laid down by Mr. Justice McBRIDE in the Drefs case to the instant matter, we find nothing in the complaints before us which 676 alleges the creation of a relationship between the defendant electric company and plaintiffs' decedents "by contract or otherwise different from that which * * [the electric company] sustains to the whole public." "Control", in the sense that a third party is to be subjected to liability under the Employers' Liability Law as we conceive the meaning of "control" and contrary to the conception of the "remote" or nebulous "control" as defined by plaintiffs, means a primary control of the physical instrumentalities immediately in use and which are the media of the injuries or death giving rise to a claim of damage under that law. Here it would be extravagant to say that the ability to cut off or turn on power flowing over Staub's wires, when not installed, owned or controlled by the electric company, is that kind of "control". The application of "control" sought to be made here by the appellants is not the intent of the law; and such an unwarranted judicial extension of the act might, as Mr. Justice McBRIDE warns in the Drefs case, lead to the repeal of this most beneficent and enlightened legislation. Whatever merit may be found in appellants' argument is encompassed in their statement of the common law rule to the effect that "the supplier of electrical energy is liable for injury caused on the land of another where it knowingly supplies electrical energy to a defective or hazardous condition thereon." It is appellants' position that they can, if necessary, "borrow" a cause of action from the common law and with it enjoy the advantages bestowed by the Employers' Liability Law. It is a proposition which we cannot and do not sanction. Indeed, the seed to our 677 disapproval found earlier expression in Drefs v. Holman Transfer Co. et al., supra, where we said, at page 459: " * * The Employers' Liability Act is especially designed to protect workers in hazardous employment from the negligence of their employers, or those having some relation to the work or place of work or means required to prosecute the work in which they are engaged, and not as a substitute generally for injuries for which other statutes or the common law afford redress." (Italics ours.) The lower court is affirmed.	{ "pile_set_name": "FreeLaw" }
50 Cal.Rptr.3d 149 (2006) 144 Cal.App.4th 64 Donna COLLINS et al., Plaintiffs and Appellants, v. HERTZ CORPORATION et al., Defendants and Respondents. No. B185398. Court of Appeal of California, Second District, Division Eight. October 10, 2006. 150 Law Offices of Mark Weidmann, Mark Weidmann and Lee Franck for Appellants. Thelen Reid & Priest, Curtis A. Cole, Fresno, James H. Turken and Nicole M. Duckett, Los Angeles, for Respondents. BOLAND, J. SUMMARY Two employees sued their employer and numerous individual employees and supervisors for workplace harassment and retaliation, violation of the Family Rights Act, and race, age and disability discrimination in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq., and public policy. Defendants moved for summary judgment. In opposition to the motion, the plaintiffs submitted voluminous papers which failed 151 to comply with the requirements of Code of Civil Procedure section 437c (section 437c), or California Rules of Court, rule 342 (rule 342). The trial court afforded plaintiffs an opportunity to cure the defects and resubmit opposition papers which complied with applicable rules. The plaintiffs filed new papers, which also failed to meet the procedural requirements governing motions for summary judgment. The trial court struck the offending portions of the plaintiffs' separate statement, as well as portions of their responsive declarations. As a result, the majority of the defendants' facts were effectively left undisputed and, on that basis, summary judgment was granted. The plaintiffs appeal. We affirm. STANDARD OF REVIEW We generally review the trial court's decision to grant summary judgment de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68, 99 Cal.Rptr.2d 316, 5 P.3d 874.) However, a decision to grant summary judgment after striking portions of an opposing party's separate statement, because that party failed to comply with the requirements for the separate statement is reviewed for abuse of discretion. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208, 35 Cal.Rptr.3d 411 (Parkview Villas).) With these standards in mind, we turn to the facts and proceedings in this case. PROCEDURAL AND FACTUAL BACKGROUND In this employment discrimination action, appellants Lena Donald and Donna Collins asserted nine causes of action against respondent Hertz Corporation (Hertz): (1) racial discrimination; (2) retaliation for complaints of racial discrimination and/or harassment; (3) racial harassment; (4) retaliation for participating in matters concerning complaints of sexual harassment; (5) disability discrimination; (6) retaliation for requesting a reasonable accommodation or complaints of disability discrimination; (7) refusal to comply with the Family Rights Act (FRA), Government Code section 12945.1, et seq.; (8) retaliation for opposing violations of the FRA; and (9) age discrimination. Each claim allegedly violated both common law and one or more provisions of the Fair Employment and Housing Act, Government Code section 12940, et seq. (FEHA), or the FRA. A tenth cause of action for wrongful termination was alleged against Hertz by Collins alone. The individual respondents, eight Hertz employees or supervisors, were named as defendants only as to the third cause of action for racial harassment.[1] In October 2004, respondents moved for summary judgment or alternatively summary adjudication as to each cause of action, asserting that neither Collins nor Donald could prevail on any claim. In support of its motion, Hertz presented the following evidence:[2] Lena Donald Hertz hired appellant Lena Donald to work as a counter sales representative in August 1981. She worked at the company's 152 Los Angeles International Airport (LAX) facility. Seven customer complaints were lodged against Donald between September 2002 and February 2003. Donald also received oral and written reprimands for repeated customer rudeness and poor work performance. Due to the length of her employment with the company, Donald was afforded multiple opportunities to improve her customer service skills. When no improvement occurred, Donald was terminated on February 18, 2003, for poor work performance. Shortly thereafter, Donald's union brought Hertz before the Board of Adjustment (Board) and a hearing was conducted regarding Donald's termination. The Board issued a binding decision concluding discipline was warranted against Donald for her poor work performance and customer complaints. However, in lieu of termination, the Board determined Donald should be suspended without back pay and its decision would function as a "final warning" to her regarding customer complaints. Donald was reinstated with no loss in seniority in early March 2003, and remains employed by Hertz. Donna Collins Donna Collins was hired by Hertz as a station manager at its LAX facility in June 1999. She made lateral job moves to bus manager and back to station manager, receiving a salary increase with each move. Collins' work performance never exceeded an evaluation of "average." Additionally, she received numerous reprimands for problems associated with a consistent inability to rectify problems regarding timing and scheduling of busses and drivers, mathematical errors, poor judgment, rudeness to customers, insubordination, and a general quality of work that Hertz deemed unacceptable. Collins was never demoted. However, based on poor work performance, Collins was given a "final letter of warning" on July 30, 2002. On September 27, 2002, Collins received another "final warning" placing her on probation for 60 days and stating that, if the company did not see significant improvements in her job performance during that period, she would be terminated. Collins took a medical leave of absence in late December 2002. She remained under a doctor's care at the time the summary judgment motion was pending, and has never returned to work. She is still employed by Hertz. The motion for summary judgment or summary adjudication By its motion, Hertz asserted neither plaintiff could prevail on any claim alleged against the company or any employee. In support of the motion, Hertz presented deposition testimony by Donald and Collins, in which each plaintiff admitted she had no knowledge of, and could not cite one example or instance of, discrimination or harassment whether based on race/color, disability, medical status or age taken against her by Hertz or any individual respondent. In addition, neither Donald or Collins was aware of any action taken against them that was motivated by a discriminatory purpose. In deposition testimony, Donald and Collins conceded they had never experienced or complained about sexual harassment at Hertz, or been retaliated against for complaining about sexual harassment. Hertz also presented deposition testimony in which Donald and Collins conceded they had never experienced harassment or retaliation by Hertz for requesting a reasonable accommodation for a disability, and had not been denied any right guaranteed under the FRA. Finally, Hertz presented evidence Collins is still its employee. Appellants responded to Hertz's single memorandum of points and authorities, and single separate statement of undisputed 153 material facts by filing three individual opposing memoranda of points and authorities one on behalf of each then-plaintiff, four opposing separate statements, and nine declarations and amended declarations. An initial hearing on the motion was conducted in early January 2005. At the outset, the trial court expressed a tentative ruling to grant summary adjudication as to certain claims and parties, and deny the motion in other respects. During oral argument, respondents' counsel complained that appellants' papers were not only unduly voluminous, they failed to comply with the rules of court governing motions for summary judgment or adjudication. The court agreed, withdrew and vacated its tentative ruling, and ordered appellants' counsel to re-file opposing papers which contained no substantive changes, but complied with the applicable procedural rules. The court provided the attorneys a summary of the statutes and rules of court governing summary judgment motions, and even read California Rules of Court, rule 342(f) (rule 342) into the record, particularly so that appellants' attorney, Lee Franck, would have no remaining confusion as to the court's expectations when he re-filed his clients' response to Hertz's separate statement. "Corrected" opposing and reply papers were submitted. The motion was argued on March 14, 2004, and taken under submission. A written order was issued on June 13, 2005. By that order, the trial court found that appellants' re-submitted 105-page separate statement still failed to comply with the requirements of section 437c and rule 342(f) in numerous respects. For example, as to certain facts Hertz asserted were "undisputed," appellants had either "failed to unequivocally state whether that fact [was] disputed or undisputed," or simply had failed to address a purportedly undisputed fact at all. As a result, those facts were deemed undisputed as a matter of law. As to a multitude of other facts, the court found appellants failed to cite any supporting evidence to support their claim that a given fact was disputed, but simply incorporated other responses and/or as many as 132 other "`facts' set forth elsewhere, . . . making it difficult or impossible to determine the material disputed facts asserted by [appellants]." Those "facts" also were deemed undisputed based on appellants' failure to comply with rule 342(f). After ruling on the parties' evidentiary objections, the court found that Hertz satisfied its burden of demonstrating no triable issues of material fact existed, and granted summary judgment. The court subsequently awarded costs to Hertz. Appellants filed a notice of appeal from the June 13, 2005 order granting judgment in respondents' favor.[3] DISCUSSION Donald and Collins contend the trial court committed reversible error in numerous distinct ways, which are addressed below. None of their contentions has merit. 1. Appellants' complaint regarding the page limitation imposed by the trial court is moot and, in any event, the limitation was entirely proper. When Donald, Collins, and their former co-plaintiff were ordered to re-file their opposing papers, the trial court ordered them to file one memorandum of points and authorities, in lieu of the three individual 154 memoranda initially filed. Franck objected contending that, under rule 313(d), each plaintiff was entitled to submit a brief of up to 20 pages. The court extended the page limitation for the opposition brief to 45 pages. Franck refused to "accept" that order. Donald and Collins contend the court committed reversible error by concluding rule 313(d) sets a total page limitation for an opposition to a motion for summary judgment, rather than a separate page limitation as to each plaintiff. They are incorrect on the facts and the law. First, irrespective of any limitation imposed by the rule, appellants' complaint of error is moot; they received precisely what they sought. Although appellants complain the trial court limited them to a memorandum of no more than 50 pages, the record reflects otherwise. Indeed, the record reflects the court gave appellants permission to file an opposition memorandum of up to 60 pages. Second, appellants' contention that rule 313 "allows each party facing summary judgment to have 20 pages" lacks merit. The rule is quite clear: "In a summary judgment . . . motion, no . . . responding memorandum may exceed 20 pages." (rule 313(d).) This is a single lawsuit, filed jointly by several plaintiffs against their employer and some of its employees. Hertz and its co-defendants filed a single motion against all three plaintiffs. Accordingly, one responsive memorandum was in order. It is not the case that because Collins and Donald were each "facing summary judgment," each had a right to file her own 20-page brief. If, as appellants claim, the facts of their individual circumstances were so complex as to warrant a lengthier memorandum, the rules provide a vehicle to obtain that relief. (See rule 313(e) [establishing procedure by which party may seek permission of court to file a longer brief, upon explanation as to the reason excess length is necessary].) Appellants chose to ignore that process. 2. The trial court did not abuse its discretion by striking portions of appellants' separate statement. Donald and Collins assert the trial court erred by requiring the submission of a joint separate statement in response to the one submitted by Hertz, rather than accepting their initial joint separate statement ostensibly responding to facts Hertz claimed were undisputed, plus an additional separate statement setting forth facts excluded from the Hertz's separate statement. They also insist the court erred in striking portions of their separate statement for failure to comply with statutory and procedural requirements. They are mistaken. We need not address appellants' first contention of error. Even if they were permitted to file individual separate statements,[4] the documents filed in this action fell far short of the requirements of section 437c. That statute requires an opposing party's separate statement to respond specifically to each purportedly undisputed fact, with a statement indicating whether the party agrees or disagrees the fact is undisputed and, for each fact she disputes, a citation to the evidence supporting her position. Further, any additional material 155 facts the opposing party contends are disputed must also be set forth in the separate statement, with references to supporting evidence. (§ 437c, subd. (3); see also rule 342(e)(2), (3), (f), & (h).) Appellants' "additional separate statement" submitted in opposition to the motion contains at least 133 additional facts, none of which is specifically linked to any item at issue in Hertz's motion. "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) To that end, the rules dictating the content and format for separate statements submitted by moving and responding parties "permit trial courts to expeditiously review complex motions for . . . summary judgment to determine quickly and efficiently whether material facts are disputed." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335, 282 Cal.Rptr. 368; see also Parkview Villas, supra, 133 Cal.App.4th at p. 1210, 35 Cal.Rptr.3d 411.) That goal is defeated where, as here, the trial court is forced to wade through stacks of documents, the bulk of which fail to comply with the substantive requirements of section 437c, subdivision (3), or the formatting requirements of rule 342, in an effort to cull through the arguments and determine what evidence is admitted and what remains at issue. The realization of this goal is so important that the Legislature has determined "[f]ailure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion." (§ 437c, subd. (3).) Recognizing it "could have easily . . . grant[ed] [the motion for summary judgment] based on [appellants'] rule violations," the trial court nevertheless gave Collins and Donald an opportunity to cure the defects and re-submit their opposition papers. Unfortunately, the resubmission was no improvement. As instructed by the court, appellants' did submit a single separate statement. However, the statement failed to comply with the requirements of rule 342(f) that appellants unequivocally state whether each particular fact was disputed and, if so, specifically and succinctly cite the evidence supporting that contention. In some places, appellants failed to state whether a fact was disputed or not. In other places, they purported to dispute a fact, but failed to cite any evidence or gave only argument. Appellants even argued some facts with which they purportedly had no dispute. A large number of appellants' individual responses were not responses at all, but rather incorporated responses of as many as 172 other disputed, undisputed or unspecified facts. Appellants' individual responses incorporated so many other responses which themselves often referred to other "responses"-the court observed it would take "hours and hours and hours and hours to backtrack [through the separate statement] and figure [it] out." Indeed, the separate statement addressed to 12 issues Hertz sought to summarily adjudicate in an action involving 13 parties was so confusing that, notwithstanding the court's explicit instructions to counsel regarding the requirements of and the need to resubmit papers that complied with rule 342, appellants had "basically [made] it absolutely impossible for the trial court to figure out what [were] the triable issues of fact in this case, what [had] to go to trial, and what [could] be disposed of by summary judgment." 156 In January 2005, the trial court presciently adopted the prudent course outlined by our colleagues later that year in Parkview Villas. In that case, the trial court found a party's separate statement submitted in opposition to a motion for summary judgment failed to comply with section 437c or rule 342. The court deemed the separate statement wholly inadequate, concluded it was "not required to comb the 37 pages of declarations and hundreds of pages of attached documents to unearth evidence supporting plaintiff's position," and granted judgment for the defendant. (Parkview Villas, supra, 133 Cal.App.4th at p. 1208, 35 Cal.Rptr.3d 411.) Our colleagues in Division Seven reversed the grant of summary judgment. They found the trial court abused its discretion by granting summary judgment without first giving plaintiff a chance to cure the deficiencies in its separate statement. (Id. at pp. 1201, 1211, 35 Cal. Rptr.3d 411.) The separate statement serves two important functions in a summary judgment proceeding: it notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts. (United Community Church v. Garcin, supra, 231 Cal.App.3d at p. 335, 282 Cal.Rptr. 368; Parkview Villas, supra, 133 Cal.App.4th at p. 1210, 35 Cal.Rptr.3d 411.) A busy trial court's task is made extremely difficult if a party opposing summary judgment fails to comply with the requirements of rule 342, stating unequivocally whether a fact is undisputed or not and, if not, stating the nature of the dispute and identifying the evidence supporting its contention. Without question, trial court has every right "to refuse to proceed with a summary judgment motion in the absence of an adequate separate statement from the opposing party." (Parkview Villas, supra, 133 Cal. App.4th at p. 1211, 35 Cal.Rptr.3d 411.) However, an immediate grant of summary judgment is, in most instances, too harsh a consequence. "[T]he proper response in most instances, if the trial court is not prepared to address the merits of the motion in light of the deficient separate statement, is to give the opposing party an opportunity to file a proper separate statement. . . ." (Ibid.; United Community Church v. Garcin, supra, 231 Cal.App.3d at p. 335, 282 Cal.Rptr. 368; Security Pacific Nat. Bank v. Bradley (1992) 4 Cal. App.4th 89, 94-95, 5 Cal.Rptr.2d 220.) That precise route was taken here. The trial court identified the specific deficiencies in appellants' initial filings, provided their attorney with a summary of the statutes and rules governing proceedings involving motions for summary judgment, and even read him rule 342(f) so there would be no confusion as to what it expected when appellants resubmitted their opposition papers. Instead, appellants resubmitted documents that the court found "so utterly noncompliant with the rules that it would be impossible for [the court] to backtrack. It would take days and days and days and days to backtrack and figure out what evidence [appellants] had in response to these particular separate statements." The court found it was not fair to it or to anyone to require that amount of effort, and it did not have the time or resources to sort out the jumble. Accordingly, it deemed undisputed each entry in appellants' separate statement which failed to satisfy rule 342. We find no abuse of discretion in that ruling. The trial court specified deficiencies in appellants' initial filing, identified the precise manner in which those deficiencies could be rectified, and afforded appellants ample opportunity to prepare new papers in compliance with applicable 157 rules. Precisely this and no more was required, and appellants' reliance on San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 125 Cal. Rptr.2d 499, is misplaced. Unlike the parties in that case, Collins and Donald were afforded an opportunity to cure the defects in their papers, and the trial court granted the motion only after their failure or refusal to take advantage of that opportunity. They were not entitled to a third opportunity to try to file conforming papers, nor was the trial court required to wade through a "full box of Xerox paper or roughly 5000 sheets" in an attempt to discern whether any material facts remained disputed among the 13 parties or 12 matters at issue in the motion for summary judgment. It is appellants' duty to direct the court to evidence that supports their claims. It is not the court's duty to rummage through the papers to construct or resuscitate their case. As we said recently in Eddins v. Sumner Redstone (2005) 134 Cal.App.4th 290, 35 Cal.Rptr.3d 863, "[t]he trial court cannot be expected to address expressly every piece of evidence contained in a voluminous record, much less address evidentiary items on which a party has not relied to create a disputed issue of material fact." (Id. at p. 318, 35 Cal. Rptr.3d 863.) The court did not abuse its discretion by striking those portions of appellants' separate statement which failed to comply with the procedural requirements governing proceedings involving motions for summary judgment.[5] 3. No triable issues of material fact remain. We turn now to the question of whether the remaining evidence establishes the existence of disputed issues of material fact such that trial is required for any of the 10 causes of action or 13 respondents. We conclude it does not. a. Summary judgment was properly granted for Hertz as to each cause of action for violation of FEHA and public policy. In eight causes of action levied against it, Hertz allegedly violated FEHA (or FRA) and public policy. The claims are: the first cause of action for race discrimination; 158 the third cause of action for racial harassment; the fifth cause of action for disability discrimination; the seventh cause of action for FRA discrimination; the ninth causes of action for age discrimination; and the second, sixth and eighth causes of action for retaliation. Together, these claims embrace a vast expanse of prohibited conduct. Individually, each claim shares a common critical component with the others: the action taken by the employer about which appellants complain must have been motivated by a discriminatory purpose or retaliatory motive against plaintiff because of her protected status. (See Gov.Code, §§ 12940, subds. (a), (h) & (m); 12945.2(l); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129, 87 Cal.Rptr.2d 132, 980 P.2d 846 [harassment on the basis of any characteristic protected by FEHA is actionable]; Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317, 1319, 237 Cal.Rptr. 884.)[6] Evidence in support of that critical component is missing here. In the motion, Hertz presented evidence it applied its policies uniformly to all employees, and that any action taken against Collins or Donald was motivated, not by a discriminatory purpose, but by their poor work performance. Hertz also presented evidence, in the form of each appellant's deposition testimony, that neither Collins or Donald knew "of any action taken by Hertz against her that was motivated by a discriminatory purpose," neither had any "knowledge of any type of discrimination against her on the part of Hertz," and each was "unable to set forth a single example or instance of discrimination on the part of Hertz." This evidence was deemed undisputed by virtue of the ruling striking portions of appellants' separate statement which failed to comply with rule 342(f). Accordingly, there is no evidence of discrimination in violation of FEHA or the FRA and summary judgment was properly granted in favor of Hertz on the first, third, fifth, seventh, and ninth causes of action. As for the second, fourth, sixth and eighth causes of action alleging various types of unlawful retaliation in violation of FEHA, the FRA and public policy, appellants presented no evidence that they, or either of them, had engaged in a protected activity of which Hertz was aware, or of any causal link between that activity and the allegedly detrimental adverse action taken by Hertz about which they complained. (Yanowitz v. L'Oreal USA, Inc. 159 (2005) 36 Cal.4th 1028, 1042, 32 Cal. Rptr.3d 436, 116 P.3d 1123.) To the extent any of the 453 "additional facts" in appellants' amended separate statement purportedly identified any such protected activity and/or requisite causal link, those facts were stricken from the record for failure to comply to rule 342(f), a ruling we uphold. Moreover, appellants failed to link those facts to the 12 matters at issue in the motion, or with any of the 10 causes of action alleged in the complaint. In ruling on a motion for summary judgment, a trial court is prudent to exercise its discretion in accordance with the principles of due process, and in favor of considering all the evidence referenced in the parties' papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra, 102 Cal.App.4th at pp. 315-316, 125 Cal.Rptr.2d 499.) However, as we said before, "[t]he trial court cannot be expected to address expressly every piece of evidence contained in a voluminous record, much less address evidentiary items on which a party has not relied to create a disputed issue of material fact." (Eddins v. Sumner Redstone, supra, 134 Cal.App.4th at p. 318, 35 Cal. Rptr.3d 863.) Appellants chose not to seize the opportunity afforded them to submit opposition papers in compliance with section 437c, and rule 342. In so doing, the court found they "ignored [their] obligation to cite to evidence creating a triable issue of material fact and made it difficult or impossible to discern whether there were any material disputed facts." Appellants alone are responsible for this result. We also reject appellants' attempt to rely on the tentative decision the trial court announced at the initial hearing finding triable factual issues as to four causes of action. First, that tentative decision has no legal effect. "An oral . . . opinion by a trial judge, discussing and purporting to decide the issues, . . . is merely an informal statement of his views . . . . [I]t is not itself the decision of the court or a judgment. [Citations.]" (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 9, p. 547.) Moreover, assuming the tentative decision ever had force, it vanished when the tentative oral decision was unequivocally vacated and "withdrawn in its entirety" by the trial court and superseded by a written order requiring appellants to resubmit compliant papers. b. Summary judgment was properly granted in favor of the individual defendants on the third cause of action for racial harassment. In their third cause of action, Donald and Collins allege they were subjected to verbal, physical and visual harassment, ostracized and subjected to false criticism and accusations of poor work performance by each individual respondent, and their race and/or color motivated the individual respondents' harassing conduct. The evidence does not support these allegations. (1) Collins has no viable claim against any individual respondent. At her deposition, Collins conceded individual respondents Graham, Webb, Scusky, Koechler and Campbell had "never harassed [her] because of her race." Collins' attempt to dispute respondent Peterson's factual representation that she too "never harassed Collins because of her race" was unsuccessful, and the fact was deemed undisputed when the trial court struck Collins' response due to her failure to comply with rule 342(f). Accordingly, the only individual respondent as to whom there was purportedly a material factual dispute regarding her alleged racial harassment of Collins is respondent Jones. Unfortunately *160 for Collins, that dispute also dissipated. First, Collins mentions Jones just twice in her declaration. In the declaration, she complains that: (1) Jones once denied her request to have Thanksgiving Day off, but granted the same request later made by a white manager, and (2) Jones once (together with another manager) denied her request for a day off for unspecified reasons. Construing this evidence in the manner most favorable to Collins, neither event, considered alone or together, is sufficiently "detrimental and substantial" to "result in a material change in the terms of her employment, impair her employment in some cognizable manner, or show some other employment injury . . . ." (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511-512, 91 Cal.Rptr.2d 770.) Second, even if Jones' actions were sufficiently severe, the representations in Collins' declaration contradict her deposition testimony. For that reason, the representations are insufficient to defeat summary judgment and were properly stricken by the trial court. (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 22, 112 Cal.Rptr. 786, 520 P.2d 10.) Collins has no viable cause of action against any individual respondent. (2) Donald has no viable claim against any individual respondent. Donald admitted unequivocally she had never suffered racial harassment at the hands of either Peterson or Scusky. Donald attempted to take issue with representations made by the remaining individual respondents who stated they never harassed Donald because of her race. However, those portions of the separate statement were stricken when Donald failed to comply with rule 342(f). In addition, Donald's attempt to create a factual dispute by making representations in her declaration contradicting her deposition testimony was quashed by the trial court. For the same reasons stated above, neither ruling was made in error. c. Wrongful termination In her final cause of action, Collins alleges she was engaged in the protected activity of reporting Hertz's intentional misrepresentations designed to defraud its customers, and that, as a result, her employment was wrongfully or constructively terminated. Hertz presented evidence Collins was never demoted and had never resigned from or been fired by Hertz. At her deposition, Collins was unable to identify any instance of abuse or hostility by Hertz. Collins attempted to dispute Hertz's factual representations, but this portion of the separate statement was stricken due to Collins' failure to comply with rule 342(f). We find no abuse of discretion in that ruling. Accordingly, Hertz established Collins could not prove the essential elements of a claim for wrongful or constructive termination in violation of public policy, and summary judgment was appropriate. DISPOSITION The judgment is affirmed. Respondents are awarded their costs of appeal. We concur: COOPER, P.J., and RUBIN, J. NOTES [1] The individual respondents are: Kelly Graham, Mary Jones, Kathy Contreras, Amy Peterson, Sharon Webb, Diane Scusky, Amy Koechler and Brett Campbell. A third plaintiff, Lisa Blazio, and another entity defendant, the Ford Motor Company (Hertz's corporate parent), are not parties to this appeal. [2] Because the individual respondents are parties to only one cause of action, our discussion refers primarily to Hertz. [3] Collins and Donald also purport to appeal from the cost award. However, they neglected timely to file a notice of appeal from that order, which we now lack jurisdiction to consider. [4] Which, for the same reasons discussed above, they were not. Appellants' argument hinges on the fact the rule is written in the singular, addressing a moving and an opposing party. (See e.g., § 437c, subds. (c) & (e).) This is too narrow an interpretation. The rules relate to a motion, whether it is broughtor opposed-by one party or several. The organizational format for the separate statement supporting or opposing a motion for summary judgment or adjudication is designed to address an individual cause of action and/or issue, as it relates to one or more parties. [5] We have considered, and find no merit in, appellants' remaining contentions of procedural error. Specifically, appellants' claim the trial court erred by striking those responses in which they merely "incorporated by reference" multiple equally nonresponsive earlier responses to other undisputed facts lacks merit. Section 437c permits "incorporation by reference" in the context of a motion for summary judgment. That subdivision relates to incorporating "matter in the court's file . . .," not to evidence and materials a party submits in support of its opposition to the motion. (§ 437c, subd. (b)(7).) The "incorporation by reference" in respondents' papers about which appellants complain was entirely proper. Those responses specifically direct the court to evidence which respondents claim advances their contention a particular material fact is undisputed. No evidence supports appellants' claim the trial court based its ruling on any improper or superseded local rule, or local rule. The court's rulings rest squarely on rule 342 and section 437c. Finally, appellants' claim the court improperly struck portions of their declarations lacks merit. The initial declarations were first stricken, not because they were faxed as appellants claim, but because the original declarations appellants' signed and filed contained blanks subsequently filled in by an unknown source in a different colored pen. Later, portions of appellants' amended declarations were stricken on grounds such as lack of personal knowledge, vagueness, unsupported conclusory statements made without an adequate foundation, and because representations in each appellant's declaration conflicted with her deposition testimony. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22, 112 Cal.Rptr. 786, 520 P.2d 10.) None of those rulings was erroneous. [6] (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205, 48 Cal. Rptr.2d 448 [establishing elements for claims of race and age discrimination in violation of FEHA and public policy]; Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-465, 79 Cal.Rptr.2d 33 [elements of racial harassment]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610, 262 Cal.Rptr. 842 [elements of sexual harassment]; Deschene v. Pinole Point Steel Co. (1999) 76 Cal. App.4th 33, 44, 90 Cal.Rptr.2d 15; [elements of disability discrimination]; Dudley v. Department of Transportation (2001) 90 Cal. App.4th 255, 261, 108 Cal.Rptr.2d 739 [elements of FRA discrimination]; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476, 4 Cal.Rptr.2d 522 [elements of retaliation for complaints of racial or sexual harassment, and FRA discrimination]; West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978, 117 Cal.Rptr.2d 647 [to prevail on age discrimination claim under FEHA, plaintiff must show age was a motivating factor]; Iwekaogwu v. City of Los Angeles (1999) 75 Cal. App.4th 803, 814, 89 Cal.Rptr.2d 505 [elements of retaliation for requests for accommodation or complaints of disability discrimination]; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453, 116 Cal.Rptr.2d 602 [claim of retaliation under FEHA requires a showing of causal link between adverse action and statutorily protected activity].)	{ "pile_set_name": "FreeLaw" }
803 F.2d 711 SKIP KIRCHDORFER, INC., Appellant,v.The UNITED STATES, Appellee. Appeal No. 85-2090. United States Court of Appeals,Federal Circuit. Oct. 14, 1986. Laurence J. Zielke, Pedley, Ross, Zielke & Gordinier, Louisville, Ky., argued for appellant. Joseph T. Casey, Jr., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. ORDER Before MARKEY, Chief Judge, and BALDWIN and NIES, Circuit Judges. NIES, Circuit Judge. 1 In an opinion issued from the bench on January 15, 1985,1 the United States Claims Court granted the government's summary judgment motion and denied Skip Kirchdorfer, Inc.'s motion for partial summary judgment on the issue of the government's liability. Kirchdorfer appealed. 2 In an unpublished decision of April 4, 1986, 795 F.2d 1010, this court reversed the Claims Court's grant of the government's motion and denial of Kirchdorfer's motion. Accordingly, this court remanded the case to the Claims Court for a determination of the amount of the government's liability. 3 Kirchdorfer seeks attorney fees under the Equal Access to Justice Act, (EAJA) 28 U.S.C. Sec. 2412(d)(1)(A) (Supp. III 1985). The government opposes the grant of attorney fees because, inter alia, no final judgment in the action has been entered. Section 2412(d)(1)(B) mandates the following requirements for a fee application under section 2412(d)(1)(A): 4 A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified. 5 From a litigant's point of view, unless a fee request is timely filed in accordance with the above provision, it will be barred. If the judgment entered in this case by this court is "a final judgment in the action" within the meaning of the statute, then Kirchdorfer's request had to be filed at this time. We conclude, however, that it is premature. 6 While the statute defines "final judgment" as "a judgment that is final and not appealable, and includes an order of settlement," 28 U.S.C. Sec. 2412(d)(1)(G) (Supp. III 1985), it does not define "in the action." However, the legislative history states that "[i]n a case remanded by a court of appeals for entry of judgment, the thirty days would commence on expiration of the time for appealing the judgment on remand." H.R.Rep. No. 120, 99th Cong., 1st Sess., 18, reprinted in 1985 U.S.Code Cong. & Ad.News 132, 146 n. 26. Thus, as a "statute of limitations" against fee awards, clearly Congress did not intend that an appellant be barred 90 days after an appellate court's judgment reversing and remanding becomes final. 7 This does not mean that a request for a fee award under EAJA must always be made in the first instance to the trial court when this court remands. We have entertained requests for fees filed within thirty days from the date that time for filing a petition for certiorari to the Supreme Court expires in instances where the remand was essentially for a ministerial act. Beardmore v. Department of Agriculture, 788 F.2d 1537, 1538 (Fed.Cir.1986) (in banc); Gavette v. Office of Personnel Management, 785 F.2d 1568, 1570-71 (Fed.Cir.1986) (in banc). However, where the tribunal on remand must determine a significant part of the case, as here and as was not true in those cases,2 a request for fees before the judgment on remand is generally premature. Any other position would result in piecemeal consideration of fee awards. Thus, in this case, after final judgment is entered in the trial court, Kirchdorfer may file a fee application for all work in this action, including the work on remand. Accordingly, it is hereby 8 ORDERED that Kirchdorfer's motion for fees is denied without prejudice to filing a petition with the Claims Court upon entry of a final judgment. 1 The original opinion was supplemented with an order of February 20, 1985, denying Kirchdorfer's motion to amend 2 The cases were remanded with a direction to the Merit Systems Protection Board to order payment of backpay. The MSPB does not in the first instance determine quantum	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals Tenth Circuit December 21, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 10-2086 (D.C. No. 1:06-CV-01216-WJ-RLP) JON EDELMAN, a/k/a Jon J. Edelman (D. N.M.) or John J. Edelman, Defendant-Appellant. ORDER AND JUDGMENT * Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and GORSUCH, Circuit Judge. Defendant Jon Edelman, appearing in this court pro se, appeals from the district court’s Memorandum Opinion and Order granting summary judgment to the United States on its federal tax assessments against him for tax years 1979 through 1982, 1987, 1992 through 1998, and 2003. We affirm. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. On December 13, 2006, the Government filed its initial complaint seeking to reduce to judgment federal tax assessments made on Mr. Edelman for tax years 1979 through 1985 and 1987. On April 16, 2007, the Government filed an amended complaint, seeking to reduce to judgment sixteen years of federal income tax assessments made against Mr. Edelman; that is, assessments for tax years 1979 through 1985, 1987, 1992 through 1998, and 2003. In its opposed second motion for summary judgment and memorandum in support, the Government withdrew its claims against Mr. Edelman as to all of tax year 1983 and part of tax year 1985. See R., Vol. 1, at 586, 590 n.1, 594 n.7. The Government moved for summary judgment on its remaining claims, arguing that Mr. Edelman’s taxes remained unpaid and that the action was filed prior to the expiration of the ten-year statute of limitations set forth in 26 U.S.C. § 6502(a)(1). On September 15, 2009, the district court issued its Memorandum Opinion and Order granting the Government’s motion for summary judgment as to its claims for tax years 1979 through 1982, 1987, 1992 through 1998, and 2003. R., Vol. 1, at 851-52. The court concluded that the ten-year limitations period for tax years 1979 through 1982 and 1987 was tolled during proceedings on Mr. Edelman’s several requests for collection due process (CDP) hearings and while Mr. Edelman was out of the country for more than six months, so the limitations period had not expired as to those tax years when the Government -2- filed its original complaint in December 2006. Id. at 839-40, 843-47, 851. The court also concluded that the Government’s action was timely with regard to tax years 1992 through 1998 and 2003 regardless of any tolling. See id. at 846-47, 851. The court denied summary judgment as to tax years 1984 and 1985, however, holding that there was a genuine issue of material fact as to the tolling of the statute of limitations for those years. Id. at 851-52. On January 28, 2010, the district court granted the Government’s unopposed motion to sever the pending claims for tax years 1984 and 1985, creating a new case and docket for those claims. See id. at 879, 884-85. On March 11, 2010, the district court entered a final and appealable judgment on the adjudicated claims. See id. at 886. Mr. Edelman appeals. Mr. Edelman argues that: (1) the Government’s claims against him for tax years 1979 through 1982, 1987, and 1992 through 1994 were untimely because his requests for CDP hearings did not toll the ten-year statute of limitations in 26 U.S.C. § 6502(a) for bringing suit; (2) the district court failed to give him proper notice under Jaxon v. Circle K Corporation, 773 F.2d 1138, 1139-40 (10th Cir. 1985), of the procedural requirements for defending against the Government’s motions for summary judgment, which was compounded by the court’s failure to compel discovery essential to his ability to show error in the Government’s calculations of deficiencies, assessments, interest, and penalties; and (3) Congress amended 26 U.S.C. § 6502 in the Internal Revenue Service -3- Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685, expressing its intent in the Conference Report that the ten-year statute of limitations for collecting taxes should not be extended. “We review a grant of summary judgment de novo and apply the same legal standard as the district court.” United States v. Botefuhr, 309 F.3d 1263, 1270 (10th Cir. 2002) (quotation omitted). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (revised effective December 1, 2010). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Botefuhr, 309 F.3d at 1270. We review the district court’s order denying additional discovery for an abuse of discretion. See MediaNews Group, Inc. v. McCarthey, 494 F.3d 1254, 1265 (10th Cir. 2007). Because Mr. Edelman is pro se, we construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). We have carefully reviewed the district court’s thorough Memorandum Opinion and Order in light of the parties’ arguments, the record on appeal, and the governing law. We are unpersuaded by Mr. Edelman’s claims of error; rather, we conclude that the Government has demonstrated the lack of merit in his appeal. Under the tax code, the limitations period was suspended (tolled) while Mr. Edelman engaged in CDP proceedings and while he was out of the country -4- for more than six months. 26 U.S.C. § 6330(e), 6503(c). He has failed to demonstrate that there were any essential facts left to be determined on the issue of the statute of limitations, or that the statutes relevant to the limitations period—and the tolling thereof—were revised in his favor by the Internal Revenue Service Restructuring and Reform Act of 1998. In addition, his response to the Government’s first summary judgment motion shows that, unlike the pro se litigant in Jaxon, 773 F.2d at 1140, he understood the procedural requirement to submit evidentiary material to counter the Government’s showing. See R., Vol. 1, at 233-64. He has not demonstrated that the district court abused its discretion by failing to explain more fully the procedural requirements of responding to the Government’s second summary judgment motion. Finally, Mr. Edelman has not shown that the district court abused its discretion by refusing to compel additional discovery from the Government. R., Vol. 1, at 505. The judgment of the district court is AFFIRMED. Entered for the Court John C. Porfilio Senior Circuit Judge -5-	{ "pile_set_name": "FreeLaw" }
FOURTH DIVISION March 31, 1998 No. 1-96-2978 INDEPENDENT TRUST CORPORATION, and ) APPEAL FROM THE FIRST MANAGEMENT REALTY CORPORATION, ) CIRCUIT COURT OF ) COOK COUNTY Plaintiffs-Appellants, ) ) v. ) ) THE CITY OF CHICAGO DEPARTMENT OF ) WATER, ) ) Defendant-Appellee. ) ) ----------------------------------------) LUMBERMENS MUTUAL CASUALTY a/s/o ) CORPORATION SUPPLY CO., ) ) Plaintiff-Appellant, ) ) v. ) ) THE CITY OF CHICAGO, a Municipal ) Corporation, ) ) Defendant-Appellee. ) ) ----------------------------------------) PAGO PAGO II, INC., ) ) Plaintiff-Appellant, ) ) v. ) ) THE CITY OF CHICAGO, a Municipal ) HONORABLE Corporation, ) DAVID G.LICHTENSTEIN ) JUDGE PRESIDING. Defendant-Appellee. ) JUSTICE McNAMARA delivered the opinion of the court: These three consolidated cases arose from an incident on February 20, 1994, in which water flooded the basement of the building located on the corner of Wells and Randolph Streets, known as 205 West Randolph Street in the City of Chicago (the building). The plaintiffs in all three actions allege that the city negligently maintained, inspected, or repaired an underground pipe near their property. The six-inch-diameter pipe in question, a dedicated hydrant lead, connected a fire hydrant adjacent to 205 West Randolph to an eight-inch-diameter water main running north and south under the west side of North Wells Street. Finding that the hydrant lead was "firefighting equipment or facilities" within the meaning of section 5-103(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)(745 ILCS 10/5-103(a)(1994)), the circuit court granted the city's motion to dismiss all three cases pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (1994)). Plaintiffs appeal. We reverse. The relevant facts are as follows. The City of Chicago operates a water department which serves as the exclusive provider of water to all residential and commercial customers within the city. The water department installs, repairs, inspects, and maintains underground water pipes, including an eight-inch-diameter main on the west side of Wells Street running north and south in front of the building. From this eight-inch-diameter main three six-inch-diameter underground branch pipes extend toward the building. Two of the branch pipes provide water service to buildings at or near 205 West Randolph. The third branch pipe was about 10 feet long and connected to and provided water to a fire hydrant located on the sidewalk adjacent to the building. This pipe will be referred to by this court as a "hydrant lead." (footnote: 1) The hydrant lead is dedicated, meaning that its sole function is to provide water to the hydrant. Plaintiffs Independent Trust Corp. (ITC) and First Management Realty Corp. own and operate the building located at 205 West Randolph Street, Chicago, Illinois. Plaintiffs Pago Pago II, Inc. (Pago Pago), and Corporation Supply Company, Inc. (Corporation Supply), each operated a business in the building at the time of the incident. On February 20, 1994, the water department received a call regarding a water leak at the building. The building's basement and sub-basement were flooded with in excess of 10 feet of water. Water department personnel responded to the scene, removed water from the building, and investigated the cause of the flooding. Water department employees excavated the area around the hydrant, exposing the hydrant base and the hydrant lead. The hydrant base was disconnected from the hydrant lead. Water department employees observed multiple hairline cracks in the hydrant lead. Based on the water department's investigation, these cracks in the hydrant lead caused the water damage. The hydrant itself was not damaged, defective, or in any way the cause of the water damage. Indeed, the hydrant was removed and later used elsewhere in the city. The hydrant lead was then plugged. One fire department employee responded to the scene on a "non-emergency" call. The firefighter left the scene without taking any action because the care and maintenance of underground water pipes are not the responsibility of the fire department. Lumbermens Mutual Casualty Company, as subrogee of Corporation Supply, filed case number 95 L 2221 against the city on February 14, 1995. ITC filed case number 95 L 2325 against the city on February 14, 1995. Pago Pago filed case number 95 L 2567 on February 17, 1995. All three plaintiffs alleged that the city negligently maintained, inspected, or repaired an underground pipe near the building. The city answered all three complaints and pled as affirmative defenses the immunities conferred by sections 3-102 and 5-103(a) of the Tort Immunity Act (745 ILCS 10/3-102, 5-103(a) (1994)). The three cases were consolidated on October 4, 1995, upon motion of the city. On January 30, 1996, the city filed a motion to dismiss the complaints pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (1994)). The city asserted that the plaintiffs' claims were barred by section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a) (1994)), which confers immunity for injuries "resulting from the condition of fire protection or firefighting equipment or facilities." Following a hearing on the motion, the circuit court found that the hydrant lead was firefighting equipment and therefore section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) immunized the city from plaintiffs' claims. The circuit court granted the city's motion and dismissed the cases with prejudice. Plaintiffs appeal. On appeal plaintiffs contend that (1) the circuit court erred in dismissing the complaints because plaintiffs' complaints assert claims upon which relief can be granted, since municipal water providers are not covered under the Tort Immunity Act; (2) the circuit court erred in granting defendant's motion to dismiss because section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) does not encompass underground water mains; and (3) the water department is liable because section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) codifies the "no duty" rule. When reviewing the dismissal of a complaint, the pertinent inquiry is whether the allegations, when viewed in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. Toombs v. City of Champaign , 245 Ill. App. 3d 580, 615 N.E.2d 50 (1993). Our review of the dismissal is de novo . Toombs , 245 Ill. App. 3d at 583. Our supreme court abolished sovereign immunity in 1959 in Molitor v. Kaneland Community Unit District No. 302 , 18 Ill. 2d 11, 163 N.E.2d 89 (1959). In response the legislature enacted the Tort Immunity Act in 1965. Barnett v. Zion Park District , 171 Ill. 2d 378, 665 N.E.2d 808 (1996). Under the Tort Immunity Act, governmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions on that liability. Barnett , 171 Ill. 2d at 386. Immunity, therefore, must be predicated upon a specific statutory enactment, and governmental units are immune only to the extent the General Assembly has provided such immunity. B arnett , 171 Ill. 2d at 386. The provisions of the Tort Immunity Act are in derogation of the common law and therefore must be strictly construed. Aikens v. Morris , 145 Ill. 2d 273, 583 N.E.2d 487 (1991). We agree with plaintiffs that the Tort Immunity Act does not grant general immunity to municipal water providers. Therefore, as a general rule, municipal water providers are liable for their negligent conduct, unless their specific conduct is encompassed within a specific section of the Tort Immunity Act. Barnett , 171 Ill. 2d at 386. The specific statutory enactment at issue in this case is section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)), which provides in pertinent part: "Neither a local public entity, nor a public employee acting in the scope of his employment, is liable for an injury resulting from the condition of fire protection or firefighting equipment or facilities." We reject defendant's contention that the immunity granted by section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) applies because "the condition of the hydrant -- that it was no longer attached to its lead -- caused plaintiffs' injuries." This contention is simply not supported by the record. The record indicates that the injuries resulted from one or more cracks in the hydrant lead, not from any problem with or condition of the hydrant. Further we note that defendant's statement that the plaintiffs have all agreed that the injuries occurred because the hydrant broke off its dedicated lead is a gross mischaracterization of the record. Throughout the proceedings plaintiffs have maintained that there was no problem with the hydrant but, rather, the damage was caused by an underground water pipe which broke. This case then boils down to one issue - is the pipe that carries water from a water main to a fire hydrant "firefighting equipment or facilities"? The circuit court found that it was, we find that it is not. When interpreting section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)), our primary goal is to ascertain and give effect to the intention of the legislature. Barnett v. Zion Park District , 171 Ill. 2d 378, 665 N.E.2d 808 (1996). We look primarily at the language used in the Tort Immunity Act to determine legislative intent. Barnett , 171 Ill. 2d at 388. The plain language of section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) is clear - it immunizes the city for injuries resulting from the condition of "firefighting equipment or facilities." The terms "firefighting equipment" and "facilities" are not defined in the statute and therefore must be given their ordinary and popularly understood meanings. Niven v. Siqueira , 109 Ill. 2d 357, 487 N.E.2d 937 (1985); Roach v. Springfield Clinic , 157 Ill. 2d 29, 623 N.E.2d 246 (1993). We reject defendant's contention that the separate hydrant lead is a "facility." The term "facilities" has been defined as referring to city fire "department structures and their locations." Harinek v. City of Chicago , 283 Ill. App. 3d 491, 495, 670 N.E.2d 869 (1996), aff'd in part & rev'd in part sub nom. Harinek v. 161 North Clark Street, Ltd. Partnership , No. 82155 (February 20, 1998). Clearly, a separate water pipe attached to a fire hydrant does not fall within this definition. Furthermore, the hydrant lead does not fall within the ordinary and popularly understood meaning of "firefighting equipment." A hydrant itself would certainly be considered "firefighting equipment." However, this case does not deal with a hydrant but, rather, with a separate water pipe. The pipe is not part of the hydrant but, rather, is a component part of the city's underground water system. The supreme court decision in City of Chicago v. Selz, Schwab & Co . , 202 Ill. 545, 67 N.E. 386 (1903), although decided before the enactment of the Tort Immunity Act, is instructive on this point. In a factually identical case, our supreme court referred to the six-inch- diameter pipe connecting the fire hydrant to the water main as a part of the city's waterworks system. Selz , 202 Ill. at 546. The fact that the pipe supplies water to the hydrant does not make it "firefighting equipment." The defendant argues that because the hydrant lead was a dedicated pipe whose sole purpose was to carry water to the hydrant, the hydrant lead is firefighting equipment. However, a study of the present situation illuminates the flaw in defendant's logic. The hydrant in question was removed and the hydrant lead pipe was plugged. The hydrant lead is still a dedicated pipe, although not presently in use. If there was a problem with the hydrant lead today without the hydrant attached, there would be no question that the hydrant lead was not firefighting equipment. A pipe is a pipe and the sole function of a pipe is to carry water. The particular end use of that water does not miraculously transform the pipe into "firefighting equipment". Under the plain language of section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)), the immunity must stop at the hydrant. To extend the immunity beyond the hydrant to the separate hydrant lead would be a departure from the plain language of the Tort Immunity Act. Our supreme court has made it clear that we must not depart from the plain language of the Tort Immunity Act by reading into it exceptions, limitations or conditions that conflict with the express legislative intent. In re Chicago Flood Litigation , 176 Ill. 2d 179, 680 N.E.2d 265 (1997) ; Barnett v. Zion Park District , 171 Ill. 2d 378, 665 N.E.2d 808 (1996). Furthermore, extending the scope of immunity beyond the hydrant to the pipe that supplies water to the hydrant would in essence immunize the water department from any responsibility for it's negligence in the care and maintenance of the entire underground water system, as all component parts of the system provide water to some extent, for use in firefighting. The defendant makes several arguments which beg the central question. We agree that section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) cannot be read to contain an exception for "firefighting equipment and facilities" that are maintained by a municipal water provider. However, this does not change the fact that the hydrant lead, regardless of who maintains it, is not "firefighting equipment or facilities." Similarly, whether section 5-103(a) is or is not limited to injuries resulting from fires or fire suppression does not change the fact that the hydrant lead is not "firefighting equipment or facilities." We find that the hydrant lead is not "firefighting equipment or facilities" within the meaning of section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)). Therefore, the city is not immune from liability in this case and the circuit court erred in dismissing plaintiffs' complaints. In light of the above analysis, we find it unnecessary to address plaintiffs' argument regarding codification of the "no duty" rule. Accordingly, for the reasons set forth above, we reverse the judgement of the circuit court of Cook County and remand for further proceedings. Reversed and remanded. CERDA, P.J., and SOUTH, J., concur. FOOTNOTES 1:The parties refer to this six-inch branch pipe as "a water main," "a pipe" and a "hydrant lead." We find these terms interchangeable, but will refer to it as a hydrant lead for consistency.	{ "pile_set_name": "FreeLaw" }
774 F.Supp. 1297 (1991) Mary M. PHILLIPS, Special Deputy Commissioner of Insurance and Receiver in Liquidation of Healthcare United, Inc., a Colorado nonprofit corporation and health maintenance organization, Plaintiff, v. LINCOLN NATIONAL HEALTH & CASUALTY INSURANCE COMPANY, Defendant. Civ. A. No. 90-S-1989. United States District Court, D. Colorado. September 30, 1991. 1298 Joel Cantrick, Denver, Colo., for plaintiff. Joseph Bronesky and Melvin Sabey, Denver, Colo., for defendant. MEMORANDUM OPINION AND ORDER SPARR, District Judge. THIS MATTER comes before the court on Defendant's Motion to Stay Proceedings and Compel Arbitration, filed December 14, 1990 and Defendant's Amended Motion to Stay Proceedings and Compel Arbitration, filed January 3, 1991. Pursuant to the Federal Arbitration Act, 9 U.S.C. § 4, Defendant requests the court to compel the Plaintiff to arbitrate all disputes between the parties arising from or related to the Specific Excess Liability Reinsurance Agreement No. G-61458 ("the Agreement", Defendant's Exhibit A). The court has reviewed the Motion, the Amended Motion, the Plaintiff's Response and Brief in Opposition, Defendant's Reply, Plaintiff's Supplemental List of Authorities, Defendant's Surreply, the argument of counsel in open court, the applicable law, and is fully advised in the premises. 1299 1. First, Plaintiff argues that the arbitration provision contained in Exhibit A, Section 7 does not apply to this dispute because the arbitration provision was terminated when Healthcare United, Inc. (HCU) became insolvent. The Plaintiff, as Receiver in Liquidation of HCU, "stands in the shoes" of HCU with regard to the Agreement. Hays & Co. v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1153 (3d Cir. 1989). The Agreement, including endorsements and attachments, if any, constitutes the entire Reinsurance Agreement between the parties. See Exhibit A, Section 9.4. The language of the Agreement and the Continuation of Coverage Endorsement demonstrate that the Agreement continued to be in effect after the insolvency of HCU because the Endorsement provided for benefits that would be payable after HCU was insolvent. See Exhibit A, Section 8.3(b) and Exhibit A, Continuation of Coverage Endorsement. In addition, arbitration will be enforced even if the dispute arose under an expired agreement. Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 249-55, 97 S.Ct. 1067, 1070-74, 51 L.Ed.2d 300 (1977), reh. denied, 430 U.S. 988, 97 S.Ct. 1689, 52 L.Ed.2d 384 (1977), discussing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Aspero v. Shearson American Express, Inc., 768 F.2d 106, 108 (6th Cir.1985), cert. denied, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564 (1985); Gates Energy Products v. Yuasa Battery Co., 599 F.Supp. 368, 373 (D.Colo. 1983). 2. Next, Plaintiff argues that the arbitration provision has no effect because its enforcement would impair Colorado's regulation of the "business-of-insurance" under the McCarran-Ferguson Act, 15 U.S.C. § 1012(b). The McCarran-Ferguson Act, 15 U.S.C. § 1012(b), provides in pertinent part: (b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance,.... Plaintiff cites Washburn v. Corcoran, 643 F.Supp. 554 (S.D.N.Y.1986), in which the court found that Article 74 of the New York Insurance Law conferred exclusive jurisdiction over the liquidation of insurance companies on the New York Supreme Court. The judge in Washburn, 643 F.Supp. at 556, concluded that application of the Federal Arbitration Act would impair or supersede Article 74 and was therefore barred by the McCarran-Ferguson Act. Colorado has enacted an encompassing regulatory scheme for the liquidation of insolvent insurance companies in the uniform Insurers Liquidation Act, Colo.Rev. Stat. §§ 10-3-501 to 512 (1987), but Colorado does not have a law like Article 74 of the New York Insurance Law that establishes that the liquidation of insurance companies is the "business of insurance." And, although there is intense debate over the meaning of the term "business of insurance," see Fabe v. U.S. Dept. of Treasury, 939 F.2d 341 (6th Cir.1991) (Jones, J. dissenting), this court concludes that the relevant caselaw since Washburn, 643 F.Supp. at 554, dictates that the liquidation of an insolvent insurance company is not the "business of insurance" as that term is used in the McCarran-Ferguson Act. See Fabe, 939 F.2d at 353-55 (Jones, J. dissenting); State of Idaho v. United States, 858 F.2d 445, 452-55 (9th Cir.1988); Gordon v. U.S. Dept. of Treasury, 668 F.Supp. 483, 491 (D.Md.1987), aff'd. Gordon v. U.S. Dept. of Treasury, 846 F.2d 272 (4th Cir. 1988), cert. denied 488 U.S. 954, 109 S.Ct. 390, 102 L.Ed.2d 379 (1989). The district court in Gordon, 668 F.Supp. at 486-91, relied on a trio of Supreme Court cases that defined the term "business of insurance" within the McCarran-Ferguson Act: Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982); Group Life & Health Insurance v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), reh. denied 441 U.S. 917, 99 S.Ct. 2017, 60 L.Ed.2d 389 (1979); and Securities 1300 and Exchange Comm. v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). The Fourth Circuit agreed with the district court's analysis regarding the business of insurance and adopted the district court's opinion. Gordon, 846 F.2d at 273-74. The Sixth Circuit analyzed the same trio of cases and reached a different result. Fabe, 939 F.2d at 341 (Jones, J. dissenting). However, this court agrees with the dissent by Judge Jones. In determining whether a particular practice is part of the "business of insurance," three factors should be considered: First, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry. Fabe, 939 F.2d at 353 (Jones, J. dissenting). This court concludes that the arbitration provision sought to be enforced by the Defendant pursuant to the Federal Arbitration Act is not barred by the McCarran-Ferguson Act as impairing Colorado's regulation of the "business-of-insurance." See Fabe, 939 F.2d at 353-55 (Jones, J. dissenting). 3. Finally, Plaintiff argues that this dispute is not properly referable to arbitration because the important federal policy of the Health Maintenance Organization Act, 42 U.S.C. § 300e(c)(7)(B), and the corresponding regulations at 42 C.F.R. 417.107(a) requiring HCU to carry insolvency insurance outweighs the federal policy favoring arbitration. Plaintiff has cited Marchese v. Shearson Hayden Stone, Inc., 734 F.2d 414 (9th Cir.1984) to support her argument that because federal statutes and regulations required HCU to obtain insolvency insurance, this dispute over the contractual provisions of the insolvency insurance agreement involves statutory claims that must be resolved by a federal court rather than by arbitration. The court in Marchese held that policy reasons weigh against arbitration of certain disputes and that the Commodity Exchange Act, 7 U.S.C. § 6d, did not "expressly sweep statutory disputes within the scope of arbitration," 734 F.2d at 420-21. Plaintiff argues that this case represents a conflict between the federal policy in favor of providing health insurance coverage and the federal policy in favor of arbitration. Plaintiff asserts that the federal policy in favor of providing health insurance coverage outweighs the federal policy in favor of arbitration; therefore, this dispute should be resolved by a federal court. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., established a federal policy favoring arbitration and requiring that courts rigorously enforce arbitration agreements. Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987), reh. denied 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 819 (1987). Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-942, 74 L.Ed.2d 765 (1983). By its own terms, the Federal Arbitration Act leaves no place for the exercise of discretion by a federal court. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985). The Act mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed. Agreements to arbitrate must be enforced absent a ground for revocation of the contractual agreement. Byrd, 470 U.S. at 218, 105 S.Ct. at 1241. In McMahon, the Supreme Court stated that the Arbitration Act, standing alone, mandates enforcement of agreements to arbitrate statutory claims, but that mandate may be overridden by a contrary congressional command. 482 U.S. at 226-27, 107 S.Ct. at 2337-38. The burden is on the party opposing arbitration to show that Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue. McMahon, 482 U.S. at 227, 107 S.Ct. at 2337. Such an intent will be deducible from the text or legislative history of 1301 the statute or from an inherent conflict between arbitration and the statute's underlying purposes. McMahon, 482 U.S. at 227, 107 S.Ct. at 2337, quoting Byrd, 470 U.S. at 217, 105 S.Ct. at 1240; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627-28, 105 S.Ct. 3346, 3354-55, 87 L.Ed.2d 444 (1985). Here, the complaint does not seek declaratory judgment involving the interpretation of a federal statute. Rather, the complaint seeks damages as a result of the alleged failure of Lincoln to perform its obligations under the Continuation of Coverage Endorsement. What the Defendant seeks to arbitrate is the interpretation and enforcement of a contract, not the interpretation of a federal statute. Even if this dispute required interpretation of a federal statute, the Plaintiff has not pointed to any congressional intention expressed in the text or legislative history of the HMO Act to preclude a waiver of judicial remedies for the statutory claims at issue. See McMahon, 482 U.S. at 227, 107 S.Ct. at 2337. Nor has the Plaintiff argued any grounds for revocation of the Agreement. Although the court commends Plaintiff's counsel on their thoughtful arguments, the court concludes that it must direct the parties to proceed to arbitration. Accordingly, for the reasons stated in this Memorandum Opinion and Order, IT IS ORDERED the Defendant's Motion to Stay Proceedings and Compel Arbitration, filed December 14, 1990 and the Defendant's Amended Motion to Stay Proceedings and Compel Arbitration, filed January 3, 1991 are GRANTED. IT IS FURTHER ORDERED that the parties shall file a report on the status of the case by December 31, 1991 and once every six months thereafter until the arbitration is concluded.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4244 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MARCEL SEMAAN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (CR-04-94) Submitted: August 29, 2005 Decided: September 20, 2005 Before TRAXLER, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Christopher B. Holley, HOLLEY & LEVINE, PC, Fairfax, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Richard D. Cooke, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Marcel Semaan appeals his conviction for failing to file a required disclosure for the importation of currency exceeding $10,000 in value, in violation of 31 U.S.C. §§ 5316, 5322 (2000); and making a materially false statement to the Government, in violation of 18 U.S.C. § 1001 (2000). He does not challenge his sentence. Semaan asserts that the Government failed to prove the currency at issue was authentic, that the value printed on the currency was hearsay, and that he was not obligated to report the currency he brought into the United States until he departed from the United States. Having reviewed the record and Semaan’s claims, we find no error. Accordingly, we affirm on the reasoning of the district court expressed from the bench at the motion hearing conducted on June 18, 2004. 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 - 2 -	{ "pile_set_name": "FreeLaw" }
No. 04-00-00818-CV TAYLOR MADE HOMES, INC. and Michael B. Taylor, Appellants v. John GIANOTTI and Debbie Gianotti, Appellees From the 218th Judicial District Court, Wilson County, Texas Trial Court No. 98-11-0405-CVW Honorable Stella Saxon, (1) Judge Presiding Opinion by: Paul W. Green, Justice Sitting: Phil Hardberger, Chief Justice Paul W. Green, Justice Sarah B. Duncan, Justice Delivered and Filed: November 21, 2001 REVERSED AND REMANDED The trial court entered summary judgment in favor of John and Debbie Gianotti on their claims against Michael B. Taylor and his company, Taylor Made Homes, Inc. (Taylor). Taylor appeals to this Court, claiming the trial court erred in denying his motion to strike deemed admissions and in entering summary judgment against him. Holding the trial court abused its discretion in refusing to strike the deemed admissions, we reverse the summary judgment and remand to the trial court for further proceedings. Background Taylor entered a contract with his sister and brother-in-law ("the Gianottis") providing Taylor would build the Gianottis a house at a greatly reduced rate. On the scheduled completion date, the Gianottis' house was not complete, and the unfinished structure had many alleged construction defects, along with two mechanics liens on the property resulting from Taylor's alleged failure to pay subcontractors. After extending the deadline for five more months, the house remained unfinished, and the interim lender threatened to post the property for foreclosure. The Gianottis filed suit against Taylor for breach of contract and warranty, requesting a temporary injunction to prevent the foreclosure sale. After the Gianottis served Taylor with requests for production, the parties entered a Rule 11 agreement, extending Taylor's response deadline. Jonathon Hull, Taylor's attorney, then filed a motion to withdraw. Before the court heard Hull's motion to withdraw, Taylor failed to respond to the production requests by the extended deadline. The Gianottis filed a motion to compel and, on the same day, served Taylor with requests for admissions. The requests for admissions were sent to Hull's office. Ten days later, the trial court granted Hull's motion to withdraw and again extended Taylor's deadline to respond to the request for production. On August 12, 1999, after Taylor failed to timely respond, the requests for admissions became deemed admitted by Taylor by operation of law. In September 1999, Hull reentered the case. For the next two months, no mention was made of the deemed admissions, and the parties continued to correspond regarding an upcoming mediation in November 1999. Before the mediation, Hull discovered the failure to respond to the requests for admissions. He notified opposing counsel and filed a motion to strike in December 1999. At the hearing on the motion to strike, Hull testified, claiming the failure to respond was a mistake, pointing to Taylor's earlier efforts to respond to the Gianottis' other discovery requests; however, the trial court denied the motion. Six months later, the Gianottis filed a motion for summary judgment, which was granted by the trial court, finding Taylor liable to the Gianottis in the amount of $50,180.00. The trial court denied Taylor's motion for new trial, and Taylor appeals, challenging the trial court's refusal to withdraw the deemed admissions and entry of summary judgment. Deemed Admissions In his first point of error, Taylor challenges the trial court's denial of his motion to strike. We reverse a trial court's refusal to withdraw deemed admissions only upon an abuse of discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). A trial court may permit a party to withdraw deemed admissions: (1) if the moving party shows good cause for its failure to timely respond; (2) the nonmoving party relying on the deemed admissions will not be unduly prejudiced by the withdrawal; and (3) the presentation of the merits would be furthered by the withdrawal. Tex. R. Civ. P. 198.3. Good Cause Regarding Taylor's burden to show good cause, "[e]ven a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result." Spiecker v. Petroff, 971 S.W.2d 536, 538 (Tex. App.- Dallas 1997, no writ). Generally, a showing that the failure to respond was accidental or the result of mistake, rather than the result of conscious indifference, satisfies the first factor. Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex. 1998) (good cause shown when Wal-Mart did not receive requests directed to employee and immediately moved to withdraw the deemed admissions upon learning that employee had failed to respond). On appeal, Taylor argues the failure to respond was accidental. At the hearing, Hull testified, attributing the error to a mix-up occurring in the midst of Hull's withdrawal immediately before the admissions' due date. (2) Hull also testified Taylor's pattern of behavior with the other discovery responses, such as requesting extensions to respond to requests for production, demonstrates Taylor did not consciously disregard the admissions request. Further, Hull testified he notified opposing counsel and filed a motion to strike immediately upon discovering the error. Prejudice & Presentation of the Merits The second and third factors focus on whether withdrawing the deemed admissions would unduly prejudice the nonmoving party and further presentation of the merits. In this case, the evidence shows the deemed admissions had been in effect for three months before the motion to strike was filed. There is no evidence the Gianottis relied upon the deemed admissions to their detriment during that time, but rather, the evidence shows a lack of reliance. Taylor introduced correspondences between the parties discussing the mediation efforts. This correspondence, which took place after the admissions' deadline, makes no mention of the deemed admissions or the Gianottis' reliance on them to effect settlement of the case. Further, the Gianottis did not seek summary judgment until six months after Taylor filed his motion to strike. Taylor also offered to pay reasonable attorney's fees and expenses incurred as a result of the deemed admissions. The primary purpose of Rule 198 is: to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. It was never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense. Stelly, 927 S.W.2d at 622. Although Taylor consistently denied liability and counterclaimed for payments allegedly owed by the Gianottis, once the deemed admissions took effect, Taylor was precluded from introducing evidence to controvert the allegations he had disputed since the lawsuit's initiation. (3) We do not condone a party's failure to timely respond to discovery requests, even if by accident or mistake; however, the "discovery rules were not designed as traps for the unwary, nor should we construe them to prevent a litigant from presenting the truth." Id. We hold the trial court abused its discretion in refusing to allow withdrawal of the deemed admissions. Taylor satisfied the good cause requirement by presenting evidence of his withdrawal in the midst of the admissions' deadline and referring to Taylor's previous efforts to respond to discovery requests. Further, the evidence demonstrated the Gianottis would not be unduly prejudiced and presentation of the merits would be served by withdrawal of the deemed admissions. We sustain Taylor's first point of error. See In re Kellogg-Brown & Root, Inc., 45 S.W.3d 772, 777 (Tex. App. - Tyler 2001, orig. proceeding) (granting mandamus relief to party whose request to strike deemed admissions was denied because deemed admissions "eliminated its ability to present any viable defense at trial and acted as a death penalty sanction"). Summary Judgment Having sustained Taylor's first point of error, we consider Taylor's third and sixth points of error, claiming the trial court erred in entering summary judgment. Plaintiffs moving for summary judgment must establish each element of their claim as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1987). When a defendant raises a counterclaim, the plaintiff-movant must not only prove the elements of his cause of action conclusively, but also must disprove at least one element of the defendant's counterclaim. Taylor v. GWR Operating Co., 820 S.W.2d 908, 910 (Tex. App. - Houston [1st Dist.] 1991, writ denied). In this case, absent the deemed admissions, the evidence presented by the Gianottis does not demonstrate they are entitled to judgment on their claims as matter of law or that Taylor cannot prevail on his counterclaim as a matter of law. We sustain Taylor's third and sixth points of error and reverse the trial court's grant of summary judgment. (4) Conclusion Because we hold the trial court abused its discretion in refusing to allow withdrawal of the deemed admissions, we sustain Taylor's first point of error. Absent the deemed admissions, the remaining summary judgment evidence does not demonstrate the Gianottis are entitled to judgment as a matter of law. We reverse the summary judgment and remand to the trial court for further proceedings. PAUL W. GREEN JUSTICE DO NOT PUBLISH 1. Appellants challenge the summary judgment order, entered by the Honorable Stella Saxon, and the order denying the motion to strike the deemed admissions, entered by the Honorable Olin Strauss. 2. The Gianottis' objection that Hull could not testify regarding Taylor's intent to responding to the requests after Hull's withdrawal was sustained by the trial court. 3. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex.1989) (holding an admission once admitted, deemed or otherwise, is a judicial admission, and a party may not then introduce testimony to controvert it). 4. Because we reverse and remand based on Taylor's first, third, and sixth issues, we need not reach the remaining points of error.	{ "pile_set_name": "FreeLaw" }
848 F.2d 26 UNITED STATES of America, Appellee,v.Frank Anthony SPINELLI, Defendant-Appellant. No. 1125, Docket 88-1031. United States Court of Appeals,Second Circuit. Argued May 5, 1988.Decided May 25, 1988. Richard A. Stanley, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., for the S.D. of New York, Linda Imes, Asst. U.S. Atty., New York City, on the brief), for appellee. Loren I. Glassman, White Plains, N.Y., for defendant-appellant. Before LUMBARD, OAKES, and KEARSE, Circuit Judges. KEARSE, Circuit Judge: 1 Defendant Frank Anthony Spinelli appeals from a judgment of conviction, entered after a bench trial on a stipulated record in the United States District Court for the Southern District of New York, Charles L. Brieant, Chief Judge, convicting him on one count of conspiracy to manufacture and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. Sec. 846 (1982), and one count of the underlying substantive offense, in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1) (1982 & Supp. IV 1986), and 18 U.S.C. Sec. 2 (1982). On this appeal, Spinelli contends that the district court erred in refusing to suppress evidence seized from his home and truck by law enforcement agents who failed to announce their authority and purpose before entering as required by 18 U.S.C. Sec. 3109 (1982). For the reasons below, we affirm. I. BACKGROUND 2 On March 27, 1987, federal agents associated with the United States Drug Enforcement Administration ("DEA") Task Force ("Task Force") obtained a search warrant for Spinelli's home and adjacent grounds in Valhalla, New York. Section 3109 of 18 U.S.C. (called the "knock-and-announce" statute) provides, in essence, that an officer seeking to execute such a warrant should give notice of his authority and purpose before entering a house forcibly; an exception has generally been recognized where unannounced entry is required by exigent circumstances. 3 In executing the search warrant on March 27, the law enforcement agents did not knock at Spinelli's door or announce their authority or purpose. Rather, two Task Force members drove onto Spinelli's front lawn, then went to the front door and kicked it in. These agents, who were local police detectives at least one of whom had been deputized as a federal marshal, had never executed a federal warrant before and were unaware of the knock-and-announce statute. Once inside the house, they arrested Spinelli and a codefendant. They and other agents searched the house, finding a methamphetamine laboratory in an upstairs bedroom, and searched a U-Haul truck parked in the driveway, finding 362 grams of methamphetamine. 4 Spinelli moved to suppress the evidence seized from his home and the truck on the ground, inter alia, that the entry and seizures violated the knock-and-announce statute. The government urged that the motion be denied because the unannounced entry was justified by exigent circumstances. Spinelli argued that noncompliance with the statute could not be so justified because the entering officers were not even aware of the statute. 5 Following an evidentiary hearing, described in greater detail in Part II.B. below, the district court denied the motion to suppress, stating that the standard for determining whether exigent circumstances warranted noncompliance is "objective[ ] rather than subjective[ ], and that the subjective thinking of the arresting officer of [sic ] is of no moment." (Transcript of Hearing, October 6, 1987, at 61.) The court elaborated as follows: 6 I think the proper standard of whether there are exigent circumstances is not what the officers knew or what they decided. If timid officers violated the knock-and-announce requirement, because they thought exigent circumstances existed, and the Court, in fact, made a determination that that exigent circumstances [sic ] did not exist, based on the reasonable-person test, then that decision, no matter how hard they thought about it, would be a nullity. And I suppose where people recklessly enter without regard to the statute because they simply do not know any better and nobody told them, if, in fact, exigent circumstances did exist, would be entirely lawful and justifiable. 7 (Id. at 60-61.) Applying the objective standard, the court found that "a reasonable officer ... could have reached the conclusion that it would not be necessary to knock and announce...." (Id. at 61.) Accordingly, the court denied the motion to suppress. II. DISCUSSION 8 On appeal, Spinelli argues that the district court erred in applying only an objective standard and should have applied a subjective standard as well, and that application of the latter standard should have led the court to suppress the evidence seized. We agree that the proper standard for determining whether exigent circumstances warranted noncompliance with the knock-and-announce statute comprises both subjective and objective components. Nonetheless, though the district court erred by applying only the objective component, we affirm the denial of the motion to suppress because the evidence presented at the suppression hearing demonstrated that both parts of the standard were satisfied. A. The Standard 9 Section 3109 of Title 18 provides as follows: 10 The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. 11 18 U.S.C. Sec. 3109 (1982). Property seized in violation of Sec. 3109 may be excluded from evidence. United States v. Burke, 517 F.2d 377, 386 n. 13 (2d Cir.1975). 12 Notwithstanding a failure to comply with Sec. 3109, the evidence seized need not be suppressed if the noncompliance was excused by exigent circumstances. See Sabbath v. United States, 391 U.S. 585, 591 & n. 8, 88 S.Ct. 1755, 1759 & n. 8, 20 L.Ed.2d 828 (1968) ("there is little reason" to doubt that exceptions to constitutional strictures on entering a dwelling also apply to the requirements of Sec. 3109, citing Ker v. California, 374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726 (1963) (opinion of Brennan, J., dissenting)). Thus, this Court has recognized that noncompliance with Sec. 3109's knock-and-announce requirement may be excused 13 "(1) where the persons within already know of the officers' authority and purpose, or 14 (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or 15 (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted." 16 United States v. Manning, 448 F.2d 992, 1001 (2d Cir.) (en banc) (quoting Ker v. California, 374 U.S. at 47, 83 S.Ct. at 1636 (opinion of Brennan, J., dissenting)), cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed.2d 548 (1971); United States v. Artieri, 491 F.2d 440, 444 (2d Cir.) (applying Sec. 3109 standards to warrantless entry, in accordance with Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958)), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 670 (1974). 17 In determining whether exigent circumstances warranted unannounced entry, we have applied both a subjective and an objective test. In Artieri, for example, we noted that "the agents making the entry had reasonable grounds to believe and did believe" that the target of their investigation was likely to be armed. 491 F.2d at 444. In Manning, we noted that the entering agents, after knocking at the defendant's door, had heard scurrying sounds inside and were "entitled to use their knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic, and particularly of those known to have had previous experience with the criminal law." 448 F.2d at 998-99; see id. at 1002. See also United States v. Mapp, 476 F.2d 67, 75 (2d Cir.1973) (same). 18 Section 3109 reflects " 'the reverence of the law for the individual's right of privacy in his house,' " a reverence that is " 'deeply rooted in our heritage and should not be given grudging application.' " Sabbath v. United States, 391 U.S. at 589, 88 S.Ct. at 1758 (quoting Miller v. United States, 357 U.S. at 313, 78 S.Ct. at 1198). Accordingly, we adhere to the principle implicit in our prior cases that exigent circumstances may excuse noncompliance with the knock-and-announce requirement only where (1) the officers believe there is an emergency situation and (2) their belief is objectively reasonable. To excuse noncompliance either when the officers had no thoughts of emergency or when there was no reasonable basis for such thoughts would inappropriately compromise the privacy interest to be protected. B. The Evidence 19 Application of the proper standard to the facts of the present case does not require us to reverse the denial of the motion to suppress, for the government's evidence at the suppression hearing, none of which was discredited by the court, was sufficient to meet both components of the standard. That evidence, taken in the light most favorable to the government, see United States v. Waltzer, 682 F.2d 370, 371 n. 2 (2d Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983), showed the following. 20 The affidavit submitted in support of the application for a search warrant stated, inter alia, that Spinelli had been convicted in 1983 of manufacturing methamphetamine and that agents had observed activity at Spinelli's home during the previous few days that indicated that manufacture of methamphetamine was ongoing. The affidavit stated that in the experience of the affiant, a member of the Task Force who testified at the hearing, narcotics dealers often carried guns. 21 At about 3 p.m. on March 27, following issuance of the warrant, some 20 agents gathered in the parking lot of a cemetery across the Taconic Parkway from Spinelli's house. From that vantage point, the house was in plain view. Shortly thereafter, Spinelli left the house and drove to a delicatessen, followed by one of the officers. During this trip, the officer radioed back that he believed Spinelli had spotted the surveillance. After Spinelli returned home, he emerged from the house, peered in the direction of the surveillance team, and then went back inside. At this point, DEA Agent Michael Murphy gave the order to execute the warrant. Murphy was aware of the knock-and-announce statute and of the exigent-circumstances exception to it; he did not instruct any of the Task Force members as to the requirements of the statute or as to its exceptions. 22 The first Task Force members to enter Spinelli's house were Westchester County Police Detectives Frank Prete and his partner. Prete was not aware of the knock-and-announce statute or of the exception for exigent circumstances. He was, however, concerned for the safety of the officers for several reasons. Prete had investigated Spinelli as early as 1983; reliable sources had led him to believe Spinelli might be armed, that his street name was "Mad Man," and that he had a reputation for violence. In addition, he knew that upon a previous arrest, Spinelli had been in possession of a handgun. He was also aware of a United States Marshal's bulletin stating that Spinelli was wanted for parole violation and should be considered armed and dangerous. Further, Prete had known since 1983 that Spinelli was thought to be involved in manufacturing methamphetamine. Prete had learned in a DEA training course that chemicals involved in the manufacture of methamphetamine are highly volatile. When the order to execute the warrant was given, Prete believed Spinelli was aware of the agents' presence, and Prete was concerned that Spinelli might attempt to destroy evidence by causing an explosion. 23 Accordingly, Prete and his partner drove their car onto Spinelli's front lawn, and went to the front door and kicked it in without knocking or announcing their presence or authority. They did not make a conscious decision to enter without knocking; they "just did it" in order to get in as quickly as possible in light of their belief as to the dangers involved in executing the warrant. 24 We conclude that this evidence amply demonstrates that the executing officers had the subjective belief that it was important to enter Spinelli's residence as quickly and efficiently as possible in order to minimize the possible peril to themselves and to others within who could be endangered by explosions if Spinelli sought to destroy evidence. Hence, the subjective part of the exigent circumstances test was met. 25 The objective component of the test was also met. The record as a whole, including the evidence of Spinelli's past history of firearm possession, his reputation for violence, his apparent awareness of the surveillance, and the factual basis for believing that the chemicals used in the manufacture of methamphetamine were flammable and explosive, amply supported the district court's conclusion that any belief on the part of the officers that it was necessary to enter without delay was objectively reasonable. 26 The fact that Prete was unaware of the statute is, for present purposes, not material. What is dispositive is that the agents' actual concerns were fully justified by facts that objectively constituted exigent circumstances. Since both the subjective and the objective portions of the test were met, noncompliance with the statute was justified, and the motion to suppress was properly denied. CONCLUSION 27 We have considered all of Spinelli's arguments in support of his appeal and have found them to be without merit. The judgment of conviction is affirmed. OAKES, Circuit Judge (concurring): 28 I concur. 29 Despite the concerns I have recently expressed in United States v. Cattouse, 846 F.2d 144, 148 (2d Cir.1988) (dissenting opinion), about erosion of the Fourth Amendment warrant clause by expansion of the exigent circumstances "exception," I concur here, where of course the officers did have a warrant. The knowledge they possessed of Spinelli's background and operations coupled with the volatile nature of the methamphetamine laboratory (which was housed in an upstairs room complete with a window fan and a visibly rusted screen) and the presence of children in the vicinity would suggest to a reasonable person that time was of the essence, once it appeared that Spinelli may have spotted the surveillance. I therefore join in Judge Kearse's able opinion.	{ "pile_set_name": "FreeLaw" }
**************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. **************************************************** STATE OF CONNECTICUT v. JOHN WILLIAM DAVIS, JR. (AC 35605) Gruendel, Sheldon and Sullivan, Js. Argued October 23, 2014—officially released March 31, 2015 (Appeal from Superior Court, judicial district of New Haven, B. Fischer, J.) Laila Haswell, assistant public defender, for the appellant (defendant). Jonathan M. Sousa, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear- ington, state’s attorney, and Lisa M. D’Angelo, assistant state’s attorney, for the appellee (state). Opinion SHELDON, J. The defendant, John William Davis, Jr., appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a), unlawful pos- session of a weapon in a vehicle in violation of General Statutes (Rev. to 2011) § 29-38 (a),1 reckless endanger- ment in the first degree in violation of General Statutes § 53a-63, interfering with an officer in violation of Gen- eral Statutes § 53a-167a (a), reckless driving in violation of General Statutes § 14-222 (a), and, after a trial to the court, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The principal issue in this appeal is whether the evidence was insufficient to establish the defendant’s conviction of unlawful pos- session of a weapon in a vehicle and carrying a pistol without a permit because the state failed to present evidence that the defendant lacked a state permit issued pursuant to General Statutes (Rev. to 2011) § 29-28 (b),2 which is an essential element of both crimes. In addi- tion, we must decide whether the trial court improperly, and in violation of the defendant’s due process rights, intervened and assisted the prosecution at trial, thus warranting a new trial. With respect to the first issue, we agree with the defendant that the evidence is insuffi- cient to sustain his conviction of the charges of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle. With respect to the second issue, we conclude that there was no constitutional impropri- ety on the part of the trial court judge. We, thus, affirm the trial court’s judgment in part and reverse it in part. The record reveals the following facts and procedural history. On the evening of July 24, 2011, at about 6:30 p.m., Officer Juan Ingles of the New Haven Police Department was stopped in his police cruiser on Poplar Street in New Haven, assisting another officer with a routine traffic stop, when he saw a grey Nissan with two male occupants coming down the street toward him. Ingles observed that the vehicle did not have a front marker plate and that the driver of the vehicle did not appear to be wearing a safety belt. As the vehicle approached, Ingles backed his cruiser into an adjacent driveway, from where he was able to see the vehicle’s rear marker plate. Using the mobile data terminal in his cruiser, Ingles ran a registration check on the plate number and determined that it was assigned to a vehicle of a different make and model. Ingles pulled out of the driveway behind the vehicle, activated his cruiser’s lights, and attempted to initiate a motor vehicle stop. The vehicle eventually came to a stop several blocks down the road, at the intersection of Poplar and Lom- bard Streets. Suspecting that the driver might attempt to flee once he got out of his vehicle, Ingles, using ‘‘a trick [he had] learned,’’ opened and slammed shut the door of his cruiser, but he did not actually exit his vehicle. Immediately after he had slammed his door shut, the Nissan, as anticipated, ‘‘took off.’’ The driver of the vehicle, followed by Ingles, tra- versed several roadways thick with pedestrian traffic at a high rate of speed and continued onto Interstate 91 northbound toward North Haven. After exiting the highway via the Middletown Avenue entrance ramp in New Haven, the driver continued to evade Ingles and several other police officers who had responded to Ingles’ call for assistance. As patrol cars converged on the Nissan, it struck a curb and came to a stop in front of a Taco Bell restaurant. The driver and the passenger immediately fled the vehicle on foot, followed by Ingles, who had exited his cruiser to give chase. Ingles pursued the driver to the area directly behind the Taco Bell. There, he saw the driver climb on top of a dumpster, where he removed what was ‘‘obviously . . . a gun’’ from his waistband and held it above his head. The driver thrust the gun into the dumpster, which was piled high with trash, and leapt to the ground. The driver then ran to a nearby residential property but was ultimately apprehended by Ingles when he reached a fence at the rear of the property that obstructed his path. Following a struggle with Ingles and two other officers, who had just arrived on the scene, the driver was handcuffed and taken into custody. Ingles subsequently identified the driver as the defendant from the state of Connecti- cut identification card that he was carrying on his person. Once the defendant was in custody, Ingles returned to the dumpster where he had seen him stash the gun. Acting on information provided by Ingles, other New Haven police personnel, working with a K-9 unit trained to locate firearms, discovered a pistol at the bottom of the dumpster beneath several bags of garbage and some loose debris. Ingles identified it as the same pistol the defendant had been holding in his hand when he was standing on top of the dumpster. The gun was later examined by personnel from the state forensic science laboratory, firearm and tool mark section, who deter- mined that it was a Smith and Wesson, Model SW 40F, semiautomatic pistol, with a barrel length of four and one half inches. The gun was inspected for fingerprints and swabbed for DNA testing, however, no latent finger- prints were recovered and no DNA test results were ever produced. The gun was also test fired and found to be operable. The defendant was arrested and later charged by long form information with criminal possession of a firearm in violation of § 53a-217 (a) (1), carrying a pistol without a permit in violation of § 29-35 (a), altering firearm identification marks in violation of General Statutes § 29-36 (a), unlawful possession of a weapon in a vehicle in violation of § 29-38 (a), criminal attempt to assault a police officer in violation of General Statutes §§ 53a- 49 (a) (2) and 53a-167c (a) (1), reckless endangerment in the first degree in violation of § 53a-63, interfering with an officer in violation of § 53a-167a (a), and reck- less driving in violation of § 14-222 (a). The defendant pleaded not guilty and elected a jury trial on all charges except criminal possession of a firearm, on which he elected a trial to the court.3 The case was tried to a jury of six before the court, B. Fischer, J., on December 10 and December 11, 2012. The jury found the defendant guilty of carrying a pistol without a permit, unlawful possession of a weapon in a vehicle, reckless endanger- ment in the first degree, interfering with an officer, and reckless driving.4 Thereafter, the court found the defendant guilty of criminal possession of a firearm. The court rendered judgment accordingly, sentencing the defendant to a total effective term of twelve years incarceration, execution suspended after nine years, with a three year period of probation.5 This appeal followed. I The defendant first claims that the evidence was insufficient to sustain his conviction of the charges of carrying a pistol without a permit and unlawful posses- sion of a weapon in a vehicle. Specifically, he claims that the evidence was insufficient to establish that he lacked a valid permit to lawfully carry a pistol on the date of the incident, which is a required element of both crimes.6 We agree. ‘‘The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumula- tive force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the [decision].’’ (Internal quotation marks omitted.) State v. Elsey, 81 Conn. App. 738, 743– 44, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004). ‘‘[An] appellate court’s first task, in responding to a claim of evidentiary insufficiency, is to apply the tradi- tional scope of review to the evidence. That requires that . . . we view all of the evidence, and the reason- able inferences drawable therefrom, in favor of the [tri- er’s] verdict. . . . We note that a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.’’ (Citations omitted; internal quotation marks omit- ted.) State v. Butler, 296 Conn. 62, 77, 993 A.2d 970 (2010). This court’s inquiry necessarily begins with an exami- nation of the elements of the charged offenses. With respect to the defendant’s conviction of the charge of carrying a pistol without a permit, § 29-35 (a) provides in relevant part that: ‘‘No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .’’ Accordingly, the required elements of § 29-35 (a) are that the defen- dant: ‘‘(1) carried a pistol, (2) for which he lacked a permit, (3) while outside his dwelling house or place of business.’’ State v. Douglas, 126 Conn. App. 192, 209, 11 A.3d 699, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011). With respect to the defendant’s conviction of the charge of unlawful possession of a weapon in a vehicle, § 29-38 (a), provides in relevant part: ‘‘Any person who knowingly has, in any vehicle owned, operated or occu- pied by such person, any weapon, any pistol or revolver for which a proper permit has not been issued as pro- vided in section 29-28 . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon, pistol or revolver, or machine gun in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof.’’ General Statutes (Rev. to 2011) § 29-38 (a).7 In a prose- cution under § 29-38, the state must prove: ‘‘(1) that the defendant owned, operated or occupied the vehicle; (2) that he had a weapon in the vehicle; (3) that he knew the weapon was in the vehicle; and (4) that he had no permit or registration for the weapon.’’ State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). Sections 29-35 and 29-38 incorporate by reference the licensing statute, § 29-28,8 which sets forth the nec- essary qualifications and process by which to obtain a permit to lawfully carry a pistol or revolver outside of one’s dwelling residence or place of business. Section 29-28 (b) outlines the two step permit process.9 Appli- cants must first apply for, and be approved for a tempo- rary state permit. General Statutes (Rev. to 2011) § 29- 28 (b). The application for a temporary state permit must be submitted to, inter alia, the police chief in the applicant’s town of residence or the town in which he maintains a place of business.10 Assuming that the applicant meets the qualifying criteria under the statute, including the completion of a safety course and a back- ground check, the local authority issues a sixty day temporary state permit, which is nonrenewable. See General Statutes § 29-30 (c). Upon the issuance of a temporary state permit, the local authority is required to forward the application to the Commissioner of Public Safety. General Statutes (Rev. to 2011) § 29-28 (b). The sixty day permit issued by the local authority is valid statewide and obtaining it is a prerequisite to applying for and receiving a state permit, which enables its holder to lawfully carry a pistol or revolver for five years. General Statutes § 29-30 (c). Our Supreme Court, in State v. Beauton, 170 Conn. 234, 240, 365 A.2d 1105 (1976), in considering § 29-38, held that the burden of establishing that the defendant lacks a proper permit falls on the state.11 ‘‘In Connecti- cut, there is no blanket prohibition against carrying or possessing a pistol.’’ Id., 242. The licensing provision, § 29-28, is ‘‘part of the enacting or prohibition clause of the statute . . . defining the corpus delicti.’’ (Footnote omitted.) Id., 241. Thus the law does not penalize mere ownership or possession of a firearm, but is instead aimed specifically at prohibiting the unlicensed car- rying and vehicular transport of a pistol in the public arena. See id. Our appellate courts have, thus, carefully considered the specific licensing provisions set forth under § 29-28 (b) when assessing whether there is evi- dence to support convictions under §§ 29-35 and 29-38. See, e.g., State v. Brunson, 36 Conn. App. 576, 582, 651 A.2d 1335 (discussing § 29-35 and its incorporation of the geographical limitations set forth in § 29-28), cert. denied, 232 Conn. 920, 656 A.2d 669 (1995); see also State v. Beauton, supra, 170 Conn. 239 (state presented evidence pertaining to local permit in one municipality but failed to present evidence that defendant lacked state permit or permit from other municipality); State v. Nelson, 17 Conn. App. 556, 561–62, 555 A.2d 426 (1989) (same). Under these authorities, a conviction for the unlicensed carrying or unlawful vehicular transport of a pistol cannot stand without proof beyond a reason- able doubt that the defendant lacked a valid permit to carry the pistol issued pursuant to § 29-28 (b). Against this background, we consider the defendant’s claim that the state here failed to prove beyond a reason- able doubt that he lacked a valid permit to lawfully carry a pistol. Our analysis of the defendant’s claim is necessarily based upon the evidence presented at trial. On the first day of trial, Detective Vincent Imbimbo of the Connecticut State Police Firearms Unit testified for the state concerning the defendant’s alleged lack of a permit. Imbimbo reported that he had conducted a search of the state database to determine whether a state permit had been issued to a John William Davis, Jr., birthdate, November 29, 1998. Imbimbo also testi- fied that his search had not disclosed a state permit issued to a person with that name and birthdate.12 On cross-examination, defense counsel questioned Imbimbo as to whether his search of the state database would have disclosed if a temporary, sixty day permit had ever been issued to the defendant by the local authority of his town of residence or place of business. The following colloquy on that issue ensued: ‘‘[Defense counsel]: Detective, when you say you checked the database do you check the database that includes both the town as well as the state permits . . . ? ‘‘[Imbimbo]: The town permit would be valid for sixty days, at which point he could carry, you could not purchase off it. ‘‘[Defense counsel]: Okay. So is it possible that there would be a town permit issued separate and distinct from the state permit, which would be issued after one had obtained a town permit? ‘‘[Imbimbo]: Correct. ‘‘[Defense counsel]: So, indeed, [the defendant] may have in fact possessed a town permit and never in fact went to the next step to evolve to a state level; is that correct? ‘‘[Imbimbo]: Right. If he did have a temporary permit from the town it would be valid for sixty days from the issuance from the town. ‘‘[Defense Counsel]: Uhm-hm. And did you check the possibility of him having a town permit? ‘‘[Imbimbo]: I cannot check the possibility of him having a town permit. ‘‘[Defense Counsel]: You can’t. ‘‘[Imbimbo]: No. ‘‘[Defense Counsel]: So there is a possibility that at one point, perhaps even at this point during the time in question that he may have in fact possessed a valid town permit? ‘‘[Imbimbo]: Possibility, yes. If it never came to our office to get a valid state permit it’s a possibility.’’ On redirect examination of Imbimbo, the state sought clarification with respect to the permit process as follows: ‘‘[The Prosecutor]: So an individual can hold a tempo- rary city permit for sixty days prior to it coming to your office? ‘‘[Imbimbo]: Correct. The town will do the back- ground [check] on him, have him apply to the town, [and] the town will do their background [check] on him. Once the temporary permit is issued, if it is issued, it comes up to our office and we run everything all over again.’’ Following Imbimbo’s testimony, the state sought and was granted a continuance for the purpose of bringing in a second witness to testify regarding the issuance of a temporary sixty day permit. The following day, Officer Manmeet Colon of the New Haven Police Department testified for the state that he had conducted a records check of the New Haven permit database and determined that the defen- dant did not have a temporary permit issued by the city of New Haven. Colon explained that an individual seeking a pistol permit is first required to submit an application for a temporary permit in his town or city of residence. According to his testimony, the New Haven database contains all applications and temporary per- mits issued to residents of New Haven.13 The state, however, presented no evidence to show that the defen- dant was a resident of the city of New Haven or that his place of business was located there. Focusing on this discrepancy, defense counsel asked Colon whether his search of the New Haven database had enabled him to determine if the defendant had a temporary permit ‘‘not within the bounds of New Haven.’’ Colon responded that he could not make that determination. As previously noted, the state was required, to meet its burden of proof on the charges of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle, to produce sufficient evidence to prove beyond a reasonable doubt that the defendant lacked a permit to carry a pistol on the date of the incident. The licensing statute, § 29-28 (b), provides that the holder of a temporary state permit may lawfully carry a firearm for sixty days prior to applying for a five year state permit. It therefore was necessary for the state to pre- sent evidence that such a permit had not been issued to the defendant by the authority in his town of resi- dence or place of business in the sixty day period imme- diately preceding the date of the alleged conduct at issue here. Colon’s testimony, which was clearly offered by the state for this purpose, shows only that the defen- dant did not have a temporary state permit issued by the city of New Haven. The state failed, however, to establish that the defendant was a resident of New Haven or that his place of business was there during the sixty day period immediately preceding his alleged conduct in this case. Accordingly, the state did not establish that the defendant, at the time of his arrest, lacked a temporary state permit issued by the local authority of his town of residence or place of business pursuant to § 29-28 (b), as required to convict him under either § 29-35 or § 29-38. The state concedes that there was no direct evidence as to the defendant’s residence or place of business. Nevertheless, it argues that the jury could have inferred that the defendant lacked a temporary state permit to carry a pistol on the date here at issue based upon other evidence presented at trial. In support of this contention, the state argues first that because there was evidence that Colon, a New Haven police officer, had searched the New Haven database for evidence as to whether the city had ever issued a temporary state permit to the defendant, the jury could infer from his efforts that the defendant was indeed a resident of New Haven. This argument lacks merit. Colon’s testimony reveals that he had merely conducted a search of the city’s database to determine if a temporary state permit had ever been issued to a person with the defendant’s name and birth date. His testimony was devoid of any facts tending to establish that New Haven was ever the defendant’s residence or place of business. Next, the state argues that the defendant’s flight from pursuing police officers and the discarding of the pistol in the dumpster just before his arrest evidences his guilty conscience, and, thus, supports an inference that he did not possess a valid permit to carry a pistol. Our law is clear, however, that consciousness of guilt evidence cannot be relied on to prove the required substantive elements of a crime. See State v. Bell, 113 Conn. App. 25, 50, 964 A.2d 584, cert. denied, 291 Conn. 914, 969 A.2d 175 (2009). The defendant’s conduct on the date of the incident, even if indicative of conscious- ness of guilt, cannot, without impermissible specula- tion, relieve the state of all or any portion of its burden of proving that he lacked a valid permit to carry a pistol. Finally, the state argues, based on its reading of § 29- 28 (b) and Imbimbo’s testimony, that Imbimbo’s search of the state permit database was itself sufficient to prove that the defendant had never been issued a tempo- rary state permit by the local authority in his town of residence or place of business because a permittee’s application for such a temporary state permit must be forwarded to the state for further review as a prerequi- site to obtaining a five year permit. In this case, then, the state argues that it is unlikely that any search of the state database for a five year pistol permit issued to the defendant, of the kind conducted by Imbimbo, would have failed to yield information about any sixty day temporary state permit ever issued to him by the authority in his town of residence or place of business. This argument is also unavailing. With respect to the state’s reliance on § 29-28 (b), there was no request for an instruction on the licensing statute, and, thus, it was not made available to the jury.14 As a result, the jury did not have any evidentiary basis for drawing the contended for inferences regarding the permit process that the state now offers in hindsight to salvage the challenged conviction. The only descrip- tion of the permit process before the jury was that given in the previously quoted testimony of its witnesses, Imbimbo and Colon, which unambiguously identifies the very gap in the state’s evidence that the defendant highlights and relies on in this appeal. Imbimbo expressly stated that the search he conducted could not reveal whether the defendant had obtained a temporary state permit. As a result, he agreed that there was a possibility, consistent with the results of his search, that the defendant possessed a valid permit issued by the local authority of his town of residence or place of business on the date of the incident. Colon confirmed that his search of the New Haven database for a tempo- rary state permit issued to the defendant was limited to applications made in the city of New Haven.15 To obtain the challenged conviction, the state was tasked with producing sufficient evidence for the jury to find that the defendant lacked a permit to carry the pistol on the date of the incident. In the present case, ‘‘the state was not faced with an impossible task in sustaining its burden of proof as to the essential ele- ments of the crime with which the defendant was charged.’’ State v. Beauton, supra, 170 Conn. 242. The permit element is easily determined and susceptible to proof. In spite of this, there is a dearth of evidence to establish that element in this case. ‘‘An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.’’ State v. Hill, 201 Conn. 505, 512, 523 A.2d 1252 (1986). Here, the state failed to prove an essential element of §§ 29- 35 and 29-38, and, thus, the defendant’s conviction of those charges cannot stand.16 II We next consider the defendant’s claim that the trial judge improperly assisted the prosecution at trial. The defendant argues that the court assisted the prosecution by highlighting gaps in its case and suggesting further action, specifically with respect to the permit evidence, and this lack of impartiality constituted structural error that permeated the defendant’s trial, thus, entitling him to a new trial on the remaining charges. We disagree. At the outset, we note that the defendant did not object to the trial court’s alleged improprieties at trial; however, because the record is adequate for review and the defendant raises an issue that has constitutional implications, we review the defendant’s claim. See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).17 The right to an impartial tribunal is a fundamental component of due process. Weiss v. United States, 510 U.S. 163, 178, 114 S. Ct. 752, 127 L. Ed. 2d 1 (1994). ‘‘The principles guiding a trial judge in conducting a criminal trial are well established. Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmo- sphere of judicial calm. . . . In a criminal trial, the judge is more than a mere moderator of the proceed- ings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . Consistent with his neutral role, the trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so. . . . ‘‘Even though a judge may take all reasonable steps necessary for the orderly progress of the trial, he must always be cautious and circumspect in his language and conduct. . . . Any claim that the trial judge crossed the line between impartiality and advocacy is subject to harmless error analysis.’’ (Citations omitted; internal quotation marks omitted.) State v. Lopes, 78 Conn. App. 264, 274–75, 826 A.2d 1238, cert. denied, 266 Conn. 902, 832 A.2d 66 (2003). It is axiomatic that a judge may not become an advo- cate for either of the parties at trial. State v. Echols, 170 Conn. 11, 13–14, 364 A.2d 225 (1975). In this case, however, the defendant has failed to identify any con- duct on the part of the trial court that raises a question with respect to its impartiality. The defendant identifies two ways in which it claims the court acted improperly. First, the defendant directs our attention to a sidebar discussion following Imbimbo’s testimony that he sug- gests shows that the court, during a conference in cham- bers, implicitly encouraged the state to request a continuance to call a representative to testify to the defendant’s lack of a temporary state permit. Second, the defendant identifies the court’s intervention on two occasions during the presentation of the evidence to correct the prosecutor’s misstatement as to the defen- dant’s date of birth, which was used by Imbimbo and Colon to verify whether the defendant possessed a valid permit. As to the defendant’s first claim, there is nothing in the record to support the defendant’s contention that the court encouraged the prosecution to elicit addi- tional information regarding the defendant’s lack of a temporary state permit. At sidebar, the court asked the prosecutor whether she could establish that the defendant was ineligible for a permit as a result of one of the disqualifying factors delineated under § 29-28 (b), specifically, by showing that the defendant was under the age of twenty-one at the time of the offense. The prosecutor’s subsequent request for a continuance for the purpose of bringing in another representative to testify as to the defendant’s lack of a temporary state permit was not related to the court’s inquiry regarding the disqualifying criteria under § 29-28 (b), nor did it appear to be at the court’s solicitation. As to the defendant’s second claim, that the court improperly supplied the prosecutor with the defen- dant’s correct birthdate, the record shows that the pros- ecutor made conflicting statements concerning the defendant’s date of birth during trial. Thus, any attempt by the court to seek clarification was not improper. The trial court is free to intervene to clarify the testi- mony and assist the jury in understanding the evidence provided that he is nonpartisan in doing so. State v. Perez, 146 Conn. App. 844, 851, 79 A.3d 149 (2013), cert. denied, 311 Conn. 909, 83 A.3d 1163 (2014). Finally, we note that the conduct of the court that the defendant assails on appeal, and the claimed resultant harm, is undermined by the record in this case, which shows that the defendant did not object or move for a mistrial following the court’s interventions. See State v. Harris, 28 Conn. App. 474, 481, 612 A.2d 123 (taking particular note that defense counsel did not view court’s conduct to be so prejudicial as to warrant objection or motion for new trial), cert. denied, 223 Conn. 926, 614 A.2d 828 (1992). The court’s conduct in this case certainly did not amount to ‘‘tilting the balance against the accused and plac[ing] the judge . . . on the side of the prosecution.’’ (Internal quotation marks omitted.) State v. Peloso, 109 Conn. App. 477, 492, 952 A.2d 825 (2008). Upon our review of the alleged instances of judicial impropriety cited by the defendant, we conclude that the defendant has failed to show that there is a constitutional vio- lation. The judgment is reversed only as to the conviction of carrying a pistol without a permit and unlawful pos- session of a weapon in a vehicle and the case is remanded with direction to render judgment of acquittal on those charges. The judgment is affirmed in all other respects. In this opinion the other judges concurred. 1 All references in this opinion to § 29-38 are to the 2011 revision of the statute unless otherwise noted. 2 All references in this opinion to § 29-28 are to the 2011 revision of the statute unless otherwise noted. 3 As to that count, the defendant stipulated that he was previously con- victed of larceny in the second degree in violation of General Statutes § 53a-123. 4 The jury acquitted the defendant of altering firearm identification marks and criminal attempt to assault a police officer. 5 The court sentenced the defendant as follows: on count one, on the charge of criminal possession of a firearm, a term of five years incarceration; on count two, on the charge of carrying a pistol without a permit, a term of five years incarceration, execution suspended after two years, to run consecutive to count one; on count four, on the charge of unlawful posses- sion of a weapon in a motor vehicle, a term of five years incarceration to run concurrent with counts one and two; on count six, on the charge of reckless endangerment in the first degree, a term of one year incarceration, to run consecutive to counts one and two; on count seven, on the charge of interfering with an officer, a term of one year incarceration, to run consecutive to counts one, two, and six; on count eight, on the charge of reckless driving, a term of 30 days incarceration, concurrent to the prior counts. 6 The defendant also challenges the court’s jury instructions on these charges on the ground that it did not instruct the jury on § 29-28 (b), which governs the permit requirement. Because we decide that the evidence was insufficient to sustain the conviction, we do not reach the defendant’s claim of instructional error. 7 The provision in § 29-38 (a) stating that ‘‘the presence of any such weapon . . . in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof’’ was held unconstitutional in State v. Watson, 165 Conn. 577, 597, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974), on the ground that it necessarily has the effect of placing the burden of proof on the alleged violator. 8 General Statutes (Rev. to 2011) § 29-28 (b) provides in relevant part: ‘‘Upon the application of any person having a bona fide residence or place of business within the jurisdiction of any such authority, such chief of police, warden or selectman may issue a temporary state permit to such person to carry a pistol or revolver within the state, provided such authority shall find that such applicant intends to make no use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use and that such person is a suitable person to receive such permit. . . . Upon issuance of a temporary state permit to the applicant, the local authority shall forward the original application to the commissioner. Not later than sixty days after receiving a temporary state permit, an appli- cant shall appear at a location designated by the commissioner to receive the state permit. Said commissioner may then issue, to any holder of any temporary state permit, a state permit to carry a pistol or revolver within the state. . . .’’ 9 In 2001, § 29-28 (b) was amended. See Public Acts 2001, No. 01-130, §4. Under the previous law, an individual who wished to carry a gun was required to hold a local permit in the town of his residence. General Statutes (Rev. to 2001) § 29-28 (b). If an individual wished to carry a gun outside his town of residence, a separate statewide permit was required. Both permits were valid for five years, but the state permit could be renewed even if the local permit was allowed to expire. General Statutes (Rev. to 2001) § 29-30 (b) and (c). In 2001, the dual permit system was eliminated and replaced with the current two step, one permit system. See General Statutes (Rev. to 2015) § 29-28 (b). 10 The statute has since been amended by No. 13-3, § 57, of the 2013 Public Acts to remove the option of applying for a permit in the town of one’s place of business. 11 This differs from some jurisdictions in which the defendant must pro- duce evidence of a license or permit to show that his conduct falls within an exception to the general prohibition against carrying a firearm, and, thus, constitutes an affirmative defense. See, e.g., Commonwealth v. Jones, 372 Mass. 403, 406, 361 N.E.2d 1308 (1977); People v. Henderson, 391 Mich. 612, 616, 218 N.W.2d 2 (1974); Seattle v. Parker, 2 Wn. App. 331, 332, 337, 467 P.2d 858, review denied, 78 Wn. 2d 993 (1970). 12 On appeal, the defendant highlights the fact that his birthdate is in fact November 29, 1988. 13 Colon described the permit process as follows: ‘‘[Prosecutor]: Just for clarity, there is no such thing as a local permit; is that correct? ‘‘[Colon]: There is no such thing as a local permit; it’s called a temporary state permit. ‘‘[Prosecutor]: And when one goes to apply for a temporary state permit where are they supposed to go? ‘‘[Colon]: They’re supposed to go to their town where they reside or the city. ‘‘[Prosecutor]: Where they reside? ‘‘[Colon]: Correct. ‘‘[Prosecutor]: So, in your database . . . should be any New Haven resi- dent that applied or has a temporary state pistol permit? ‘‘[Colon]: Yes.’’ 14 Moreover, even if the jury had been instructed on the procedure dictated by § 29-28 (b), a statement of statutory procedure does not serve to prove that the procedure was followed. Additionally, we note that the statute itself is vague as to the details surrounding the permit process, particularly with respect to timing, which is not specified. 15 This court conducted a searching review of the record in this case for any evidence from which to circumstantially infer the defendant’s residence or place of business. We note that there was testimony from Ingles regarding his use of the defendant’s Connecticut identification card to identify him at the time of his arrest, however, the identification card was not introduced into evidence, and there was no testimony as to its particulars, i.e., the defendant’s address. The record is devoid of any information pertaining to the defendant’s residence or place of business. 16 Having concluded that there was insufficient evidence of the defendant’s lack of a valid permit, we have no occasion to consider the defendant’s additional claim, based on State v. Smith, 9 Conn. App. 330, 339–40, 518 A.2d 956 (1986), that there is insufficient evidence to sustain his conviction of the charge of unlawful possession of a weapon in a vehicle because the state failed to establish that the passenger of the defendant’s vehicle lacked a valid permit. 17 Pursuant to State v. Golding, supra, 213 Conn. 239–40, ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . [T]he first two [prongs of Golding] involve a determination of whether the claim is reviewable . . . and under those two prongs, [t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error.’’ (Citations omitted; internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 743–44, 91 A.3d 862 (2014).	{ "pile_set_name": "FreeLaw" }
547 F.Supp. 623 (1982) UNIFICATION CHURCH, et al., Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant. Civ. A. No. 81-1073. United States District Court, District of Columbia. September 16, 1982. 624 David Carliner, Washington, D. C., Larry J. Roberts, William M. Kramer, Barry A. Fisher, Los Angeles, Cal., for plaintiffs. Daniel S. Friedman, Washington, D. C., for defendant. OPINION AND ORDER JACKSON, District Judge. I. This matter comes before the Court on cross-motions for summary judgment. Plaintiff Unification Church is a non-profit California corporation known as the "Holy Spirit Association for the Unification of World Christianity" which alleges itself to be an "international religious organization" having its principal office in the United States located in New York. Plaintiff Nikkuni is a Japanese national residing in the U.S. on whose behalf the Unification Church has filed a petition with the Immigration and Naturalization Service for permanent residence in the United States. Plaintiffs Misono and Vanalderwert are Japanese and French nationals, respectively, also residing here, for whom the Unification Church has filed petitions for immigrant visas.[1] Defendant INS is responsible for enforcing the Immigration and Nationality Act, 8 U.S.C., Sections 1101 et seq. Plaintiffs seek review of decisions of the INS denying the individual plaintiffs' applications for status adjustments and orders for their deportation. The material facts with respect to each of the individual plaintiffs, and with respect to the Unification Church itself, are not in dispute. They appear affirmatively in the administrative records made before the INS, are not contradicted by other evidence of record, and are conceded (with minor semantic caveats) by defendant in its response to plaintiffs' statement of undisputed material facts. Both Nikkuni's application for permanent resident alien status and Misono's and Vanalderwert's applications for immigrant visas contemplated their employment by the Unification Church. Aliens who enter the U.S. to work may not do so unless the Secretary of Labor has certified that there are not sufficient U.S. workers able, willing, qualified, and available to perform the same labor. 8 U.S.C., Sections 1182(a)(14), 1153(a)(6).[2] The Department of Labor has made a "blanket certification" with respect to certain occupations, including "aliens with a religious commitment who seek admission into the United States in order to work for a non-profit religious organization." 20 C.F.R. 656.10(c)(2) (1982). Nikkuni Yoko Nikkuni joined the Unification Church in Japan in 1965. She first entered the United States as a 29-year old tourist in November of 1973. Although her lawful presence in this country terminated the following May, she has continued to reside in the United States in the interim, at all times working for and supported entirely by the Unification Church.[3] In July of 1974 she applied for permanent residence to work as a "missionary" for the church. Her application was approved by an INS district director but disapproved on review by the regional commissioner. The Commissioner of INS then remanded for further proceedings, essentially a supplementation of the record, which included Nikkuni's oral testimony 625 under oath before an INS examiner in October of 1979. On August 15, 1980, a new district director denied the application, certifying the decision, as he had been instructed, directly to the Commissioner for review. On December 15, 1980, the Commissioner affirmed the decision of the district director. On March 2, 1981, Nikkuni's parole pending determination of her application was revoked.[4] The grounds upon which Nikkuni's application was denied are somewhat protean. In 1977 the regional commissioner who reversed the district commissioner's approval of her application did so because the work to be done by Nikkuni was the same as that required of all members of the denomination and could be described essentially as "proselytism." She could not be described as a "missionary," he said, nor had she demonstrated any "special skills, training and experience" qualifying her for the work to be expected of her. The Commissioner remanded the application to the district director to supplement the record with respect to the nature of the Unification Church itself, stating that it was impossible to ascertain whether Nikkuni possessed the requisite skills, training or experience, or the "religious commitment required of a missionary," because the Unification Church was a "recently organized church of relatively modest proportions in terms of membership in the United States." By August of 1980 the record before the district director had been supplemented with evidence that: The Holy Spirit Association for the Unification of World Christianity was founded in Korea in 1954 by Sun Myung Moon when "he received (the revelation of) the Divine Principle;" that the theological doctrine of the Unification Church is based upon the Divine principle which explains man's relationship to God, emphasizes the teaching of Jesus Christ of the necessity to become one with God in love and truth and offers religious solutions to the problems confronting mankind; that the doctrine of the Church is set forth in a comprehensive text known as "Divine Principle" and serves as the sacred scripture of the Church, together with the Old and the New Testaments. Religious worship is conducted by the Unification Church in daily prayer sessions in formal morning and evening services on Sundays and in evening worship services on Wednesdays. Such services include prayers, hymns, sermons, and readings from the Old and the New Testaments and from the Divine Principle. The Church also conducts a 5:00 A.M. ceremonial pledge service each Sunday and a monthly prayer service at a designated holy place. Sunday school classes are also conducted for the study of the Divine Principle by the children of the Church members in various Church centers. ... [T]he Holy Spirit Association for the Unification of World Christianity is a worldwide religious movement with missionary activity conducted in 110 countries with established churches in 25 countries, including Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Great Britain, Guyana, Iceland, Ireland, Japan, Korea, Luxemburg, Malta, Netherlands, New Zealand, Norway, Peru, Portugal, South Africa, Spain, Sweden, and Switzerland, in addition to being established in all 50 states of the United States and the District of Columbia. The activities of the Church in the United States, including the selection of church officials, are conducted under the direction of the Board of Directors of the Church, "with guidelines from Church's ecclesiastical leader, Reverend Moon" with implementation of the decisions vested in a national staff and in center directors in approximately 120 cities throughout the United States. Approximately 7,000 members of the Church devote their full-time services to church activities, 626 including teaching, prosyletizing, distributing church literature, and conducting various forms of religious worship. The education and training of missionaries, teachers, and church workers are provided in courses conducted at various training centers, including an international training center maintained at Barrytown, New York. In addition, the Unification Theological Seminary at Barrytown, New York provides a two-year post graduate degree program in religious education.[5] Notwithstanding that evidence, by applying "criteria" set forth in Matter of N_____, 5 I & N Dec. 173 (1953),[6] the district director held that the Unification Church was not a "religious denomination within the contemplation of the regulation," because: "... there is no formal international structure ... members of [the Church] may belong to other religious denominations ... the officers ministering to its congregations are not ordained and may not legally perform marriages ... [and] all of the functions normally associated with a minister or priest may be performed only by one person ... Reverend Moon." He thus found it unnecessary to decide whether a missionary for the Unification Church was among those occupations the Secretary of Labor had in mind when he issued his "blanket certification." The Commissioner affirmed the district director, stating: Basic to a finding of eligibility ... is a determination that the church in question, the Holy Spirit Association for the Unification of World Christianity or the Unification Church as it is known in the United States, is a religious denomination as contemplated by the regulation.... In denying the application the District Director properly found that the evidence and testimony presented by the applicant concerning the Unification Church differed in several essential respects from the determining criteria. Misono and Vanalderwert The applications filed for the "sixth preference" immigrant visas for Akio Misono and Jean Henri Vanalderwert in May of 1978 describe the work they do for the Unification Church in identical terms: Gives personal witness to his faith in God engaging in prosyletizing persons on behalf of the Unification Church. Discusses with persons the concepts of the Church, teaches the Divine Principle, the Church Theology to interested persons to win converts. Counsels those in spiritual need or those contemplating joining the Church. Teaches Sunday School, participates in Sunday Services, may take part in community service programs. The administrative records disclose that Vanalderwert joined the Unification Church in France in January of 1973 and entered the United States the following September at the age of 23 as a tourist. He has remained since his arrival in the United States at the Unification Church's New York headquarters where his occupation is 627 said to be "church worker." Misono entered the United States in July of 1973 as a 23-year old tourist, having joined the Unification Church in his native Japan four years earlier. Upon his arrival he apparently went immediately to the Unification Church's headquarters in New York where he remained until 1977 when he moved to California. He, too, is a "church worker." Vanalderwert's application was denied by a district director in November of 1978 and affirmed on appeal by a regional commissioner in September, 1979. He was ordered deported on October 10, 1979, but the record does not reflect whether the deportation took place. Misono's application was denied by a district director in March of 1980, and an appeal to the regional commissioner was dismissed for lack of jurisdiction, leaving the district director's decision as the final decision to be reviewed in this action. The district directors reached identical conclusions that the work description "... in no way distinguishes [the applicant] from the ordinary members of the Unification Church, all of whom engage in these activities," and that "church membership alone" did not satisfy the "religious commitment requirement" necessary for status adjustment. The regional commissioner who denied Vanalderwert's appeal held: It is a matter of common knowledge that membership of an organization entails certain inherent responsibilities. In Religious orders, active membership necessarily involves some degree of participation. Many religious orders require its members to fulfill certain assigned tasks. The duties allegedly performed by the beneficiaries in the cases before us are nebulous and general in nature. Their activities, while perhaps performed to advance their religious principles, cannot reasonably be considered as representative of the religious commitment alluded to in 20 C.F.R. 656.10(c)(2), supra. Moreover, their participation as members cannot be equated with the religious commitment identified with recognized professional religious authority. Additionally, active membership in any organization is tantamount only to active enrollment and does not, standing alone, demonstrate the degree of religious commitment intended by the regulations with which we are here concerned. II. An alien's presence in the U.S. may be, as defendant contends, a matter within the discretion of the INS, but the exercise of that discretion must be grounded upon findings of fact supported by substantial evidence. Wing Ding Chan v. INS, 631 F.2d 978, 980-81 (D.C.Cir.1980). And the discretion must not be abused, i.e., be without rational explanation, depart without explanation from established policies, or "rested on an impermissible basis ... or ... other `considerations that Congress could not have intended to make relevant.'" Wong Wing Hang v. INS, 360 F.2d 715, 719 (2nd Cir. 1966), quoting Hand, J., in United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2nd Cir. 1950). Whether or not this case represents, as INS suggests, a second attempt by the Unification Church to "legitimate the status of its alien members in this country by judicial action," the earlier case it points to as the first attempt, Unification Church v. Attorney General, 581 F.2d 870 (D.C.Cir.), cert. denied 439 U.S. 828, 99 S.Ct. 102, 58 L.Ed.2d 122 (1978), does not support its position here. In that case the Unification Church appealed denials of petitions to have alien church members admitted to the United States as non-immigrant "trainees" under 8 U.S.C., Section 1101(a)(15)(H)(iii), ostensibly to be given training as missionaries. In holding that the INS had acted properly in denying the petitions (known colloquially as "H-3 petitions") and in refusing to vacate deportation orders lodged against the so-called "trainees," the Court of Appeals relied upon express record findings by a regional commissioner that the "trainees" were spending most of their energies in fund raising and that there was no bona fide missionary training program. The court continued, however, to state: We also conclude that the denial of its H-3 petitions did not deprive the Church 628 of any First Amendment rights. While we agree with appellant that the Attorney General is not vested by statute with the responsibility of imposing standards for the conduct of a religious training program ... we find that the actions of the INS in this case did not amount to such an intrusion. 581 F.2d at 874. INS cites an unbroken line of Supreme Court cases which has for nearly a century recognized a virtually unlimited power in the political branches of government to make rules for the admission and exclusion of aliens, even such as might be constitutionally repugnant if applied to U.S. citizens. See Knauff v. Shaughnessy, 338 U.S. 537, 542-544, 70 S.Ct. 309, 312-313, 94 L.Ed. 317 (1950); Galvan v. Press, 347 U.S. 522, 530-532, 74 S.Ct. 737, 742-743, 98 L.Ed. 911 (1954); Fiallo v. Bell, 430 U.S. 787, 792-794, 97 S.Ct. 1473, 1477-1479, 52 L.Ed.2d 50 (1977). From those cases it argues that if the sovereign is uninhibited by the constitution when, for example, it declares certain aliens to be undesirable on account of their race, (The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889)), it may to the same extent anathematize one faith or establish another for the same purpose. The INS acknowledges, however, that in enforcing rules respecting the admission of aliens to this country it is exercising the sovereign's delegated power to accomplish the sovereign's purpose, and in this case the "exclusive and unequivocal purpose [of 8 U.S.C., Sections 1182(a)(14) and 1153(a)(6)] ... is to protect workers in the United States ... from job competition or adverse effects on their wages or working conditions." (Defendant's Memorandum, p. 9). It is difficult to find in that legislative purpose any authority for the INS to establish "criteria" by which religions may be qualitatively appraised, particularly in light of the deference the Establishment and Free Exercise Clauses must be accorded when no issue of alienage is involved. See Larson v. Valente, ___ U.S. ___, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). INS officials, no more than judges, are equipped to be "... oracles of theological verity ...," and it is unlikely that either Congress or the Founders ever intended for them "... to be declarants of religious orthodoxy...." even for aliens. Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3rd Cir. 1981). The Court concludes that when Congress permitted an alien's status to turn upon religious considerations it intended that the INS do no more than to determine if the religion in question is bona fide. A more invidious use of the government's power over aliens should require more explicit legislative direction. The task of distinguishing a religion from something else (e.g., a delusion, a personal credo, or a fraud) is a recurring and perplexing problem, and the outer limits of what is "religious" may be ultimately unascertainable. See Africa v. Commonwealth of Pennsylvania, supra; International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 438-441 (2d Cir. 1981); Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C.Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968); Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957); Theriault v. Silber, 453 F.Supp. 254 (W.D. Tex.1978). It is unnecessary to search for those limits in Nikkuni's case, however, because upon the administrative record the Unification Church, by any historical analogy, philosophical analysis, or judicial precedent (indeed, by INS' own criteria) must be regarded as a bona fide religion.[7] The Court has similar misgivings about INS' statutory authority to prescribe a particular quantum of faith and the manner in which it must be evinced to satisfy the 629 service that an alien believer is entitled status adjustment even as a matter of grace. More portentous consequences for a U.S. citizen depend merely upon whether his beliefs are "sincerely held and ... in his own scheme of things, religious." United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965). See Welsh v. United States, 398 U.S. 333, 356, 90 S.Ct. 1792, 1804, 26 L.Ed.2d 308 (1970). The INS candidly acknowledges its skepticism of the intentions of Misono and Vanalderwert and points out that nothing would prevent their forsaking their calling immediately (if they have not already done so) to vie with U.S. workers for coveted employment once their petitions are granted. But the Misono and Vanalderwert records are devoid of any evidence whatsoever from which to find or infer that they are not the most devout of people who will continue to serve the Unification Church, as they have since 1973, for an annual remuneration of about $1,800, posing little threat to aspiring U.S. laborers.[8] INS' suspicions cannot substitute for the substantial evidence required to support findings of fact upon which an exercise of administrative discretion must rest, even when applied to aliens. For the foregoing reasons it is, this 16th day of September, 1982, ORDERED, that plaintiffs' motion for summary judgment is granted and defendant's motion for summary judgment is denied, and judgment shall be entered accordingly. NOTES [1] According to the administrative record Vanalderwert's correct surname is "Vanalderwelt." (A fifth plaintiff, Fumi Asumi (also known as "Azami"), reportedly died March 2, 1982, with her death being first suggested on the record in plaintiffs' memorandum in opposition to defendant's motion for summary judgment on July 10, 1982.) [2] Visa applicants under 8 U.S.C., Section 1153(a)(6), are said to seek "sixth preference" status as aliens "... capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States." [3] The INS questions, but does not expressly dispute, all the individual plaintiffs' assertions to the same effect. [4] Although Nikkuni may be entitled to renew her application de novo before an immigration judge in the course of deportation proceedings, the INS has not defended on the ground of a failure to exhaust administrative remedies. [5] The foregoing is a composite of affidavits from the Nikkuni administrative record and is set forth in Paragraph 10 of the plaintiffs' statement of undisputed material facts. Defendant concedes that such evidence was presented and has offered no contradictory evidence, but it questions whether the matters can be said to be "established." [6] "A `religious denomination' is something that has been incorporated under the laws of many of the states in this country; is a worldwide religious organization having a distinct legal existence; a recognized creed and form of worship; a definite and distinct ecclesiastical government; a formal code of doctrine and discipline; a distinct religious history; a membership not associated with any other church or denomination; officers ministering to their congregation, ordained by a system of selection after completing prescribed courses of training; a literature of its own; established places of religious worship; religious congregations and religious services; a Sunday school for the religious instruction of young; schools for the preparation of its ministers, who in addition to conducting religious services, perform marriage ceremonies, bury the dead, christen children, and advise and instruct the members of their congregations." 5 I & N Dec., at 173. [7] The Court of Appeals of New York has reached a similar conclusion. In the Matter of the Holy Spirit Association for the Unification of World Christianity v. The Tax Commission of the City of New York, 450 N.Y.S.2d 292, 435 N.E.2d 662 (1982). [8] INS suggests that if the Court concludes the Unification Church is a religion, a remand of the Nikkuni case for an administrative finding as to whether she possesses the requisite degree of religious commitment would be appropriate. Remand would be superfluous, however, because, if anything, her record demonstrates a devotion more intense than that of Misono and Vanalderwert.	{ "pile_set_name": "FreeLaw" }
277 F.Supp.2d 255 (2003) Miguel A. GUZMAN, Petitioner, v. UNITED STATES of America, Respondent. No. 02 Civ. 8459(SAS). United States District Court, S.D. New York. June 16, 2003. 256 257 Ruth M. Liebesman, New York, New York, for Petitioner. Robin L. Baker, Assistant United States Attorney, New York, New York, for Respondent. OPINION AND ORDER SCHEINDLIN, District Judge. Miguel A. Guzman was the leader of a gang known as "Power Rules" which distributed heroin, cocaine and crack cocaine in the Bronx. In June of 1998, following a three-month jury trial, Guzman was found guilty of racketeering, murder, narcotics conspiracy, firearms and other charges. Guzman was sentenced to six concurrent terms of life imprisonment on the racketeering count (Count 1), the racketeering conspiracy count (Count 2), the murder-in-aid-of-racketeering count (Count 4), and the three drug conspiracy counts (Counts 29, 30 and 31), plus 145 consecutive years of imprisonment on the firearms charges. Guzman now brings this petition pursuant to section 2255 of Title 28 of the United States Code seeking to vacate his life sentences and have this Court re-sentence him on those six counts. 258 In his petition, Guzman claims both underlying constitutional violations and ineffective assistance of counsel in connection with those violations. Specifically, Guzman asserts that: (1) his sentencing counsel was ineffective for failing to object to this Court's reliance on an allegedly incorrect section of the United States Guidelines in imposing life sentences on the racketeering and racketeering conspiracy charges; (2) his rights under the Ex Post Facto clause were violated by this Court's imposition of a statutorily-mandated life sentence on the murder-in-aid-of-racketeering charge, his sentencing counsel was ineffective in allowing such a sentence to be imposed, and his appellate counsel was ineffective for failing to raise the issue on appeal; and (3) his rights under the Due Process Clause were violated in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and his appellate counsel was ineffective for failing to raise that issue on appeal. For the following reasons, Guzman's petition is denied in part and granted in part. I. BACKGROUND Indictment S8 97 CR 786(SAS) was filed on March 2, 1998, in fifty-two counts,[1] charging Guzman and twelve co-defendants with various crimes arising from their involvement with a racketeering enterprise known as "Power Rules." Count One charged Guzman with racketeering in violation of 18 U.S.C. § 1962(c) ("RICO"). With respect to Count One, Guzman was charged with participating in twenty predicate racketeering acts. Count Two charged Guzman with conspiracy to violate the racketeering laws in violation of 18 U.S.C. § 1962(d) ("RICO Conspiracy"). Counts Three through Twenty-Three charged Guzman with conspiracy to murder, murder, attempted murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and (5). Count Four charged Guzman with the murder of Neil Cintron in violation of 18 U.S.C. §§ 1959(a)(1) and (2). Count Twenty-Nine charged Guzman with a conspiracy to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 846. Counts Thirty and Thirty-One charged Guzman with conspiracy to distribute more than five kilograms of powder cocaine and more than fifty grams of crack cocaine, respectively, also in violation of 21 U.S.C. § 846. The jury did not, however, determine any drug quantities with regard to these offenses. Trial commenced on March 19, 1998, and ended on June 12, 1998, when the jury found Guzman guilty of a majority of the charges. At sentencing, Guzman was represented by Jeremy Gutman, who replaced Labe M. Richman, Guzman's trial attorney. On May 11, 1999, this Court sentenced Guzman to life imprisonment plus 145 consecutive years, lifetime supervised release and a mandatory $2,050 special assessment. Specifically, Guzman was sentenced to life imprisonment on Counts One and Two, Count Four and Counts Twenty-Nine through Thirty-One; twenty years imprisonment on Counts Six, Seven, Thirteen, Seventeen, Eighteen, Twenty-One, and Twenty-Five through Twenty-Seven; ten years imprisonment on Counts Three, Five, Ten, Twelve, Sixteen and Twenty; and three years imprisonment on Count Twenty-Four. All of these terms were imposed to run concurrently. To run consecutively were the 145 years imposed on the section 924(c) convictions.[2] 259 Guzman appealed his convictions to the Second Circuit where he was represented by a third attorney, Theodore S. Green. On appeal, Guzman argued that: (1) this Court erred in discharging one of the jurors for cause; (2) post-arrest statements of two of his co-defendants were improperly redacted and admitted; (3) the murder of Alberto Garcia was not related to the enterprise; (4) he was denied his confrontation rights when a witness asserted his Fifth Amendment privilege against self-incrimination in response to certain questions elicited upon cross-examination; and (5) this Court abused its discretion in rejecting his pro se post-trial motion. On March 23, 2001, the Second Circuit rejected these arguments and affirmed Guzman's convictions in an unpublished decision. See United States v. Guzman, No. 99-1262(L), 7 Fed.Appx. 45, 2001 WL 290508 (2d Cir. Mar.23, 2001). Guzman filed a pro se petition for a writ of certiorari which was denied by the United States Supreme Court on October 1, 2001. See Guzman v. United States, 534 U.S. 867, 122 S.Ct. 154, 151 L.Ed.2d 104 (2001). II. LEGAL STANDARDS A. Standard for Habeas Relief Section 2255 allows a convicted person being held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under Section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under Section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir.1995) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)); accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir.1989). B. Right to Effective Assistance of Counsel The Sixth Amendment guarantees a fair trial and competent counsel in all criminal prosecutions. See U.S. Const. Amend. VI. The Sixth Amendment "stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done." Gideon v. Wainwright, 372 U.S. 335, 343, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). To prove that counsel was constitutionally ineffective, a petitioner must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must first show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." See id. at 688, 104 S.Ct. 2052. The second prong requires a petitioner to "affirmatively prove prejudice," i.e., to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. Judicial scrutiny of an attorney's performance is highly deferential as there is a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. 260 III. DISCUSSION A. The Use of the First Degree Murder Guideline to Calculate the Base Offense Level on the Racketeering Counts Was Appropriate In convicting Guzman of RICO and RICO conspiracy (Counts One and Two), the jury found that he committed, or aided and abetted the commission of, four murders "in violation of New York State law." Indictment ¶¶ 7(b), 8(b), 9(d), 10(b). In calculating Guzman's base offense level, this Court applied United States Sentencing Guideline ("U.S.S.G.") § 2A1.1, entitled "First Degree Murder." See PSR ¶¶ 125, 139, 146, 153. No party objected. Under New York State law, these murders were denominated as "Murder in the Second Degree." See New York Penal Law § 125.25.[3] Guzman now argues that his sentencing counsel was ineffective for not asking the Court to apply U.S.S.G. § 2A1.2, entitled "Second Degree Murder," which would have resulted in a lower base offense level. Guzman is correct that New York law would categorize the four murders as "Murder in the Second Degree." But Guzman ignores the fact that the same conduct that constitutes second-degree murder under New York law also constitutes first-degree murder under federal law. Under the Guidelines for racketeering offenses, "[i]f the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used." U.S.S.G. § 2E1.1, Application Note 2. Under federal law, any "willful, deliberate, malicious and premeditated killing ... is murder in the first degree." 18 U.S.C. § 1111(a). Thus, first-degree murder in violation of section 1111 is the federal offense most analogous to the murders for which Guzman was convicted and U.S.S.G. § 2A1.1 was the correct Guideline for determining Guzman's base offense level on Counts One and Two. See United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir.1992) ("Although New York law would have categorized the murder of Marrone only as second degree murder, the task of the district court was to find the offense level corresponding to the most analogous federal offense.... We hold that the district court did not err in concluding that the most analogous federal offense was first degree murder under § 1111."). Accordingly, sentencing counsel was not ineffective for having failed to object to the application of an appropriate Guideline.[4]See Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir.2001) ("The failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a][p]etitioner [is] entitled.") (internal quotation marks and citation omitted). B. There Is No Ex Post Facto Problem with Respect to the Life Sentence Imposed on the Murder-In-Aid-Of-Racketeering Count Count Four charged Guzman with murdering Neil Cintron on June 4, 1994, for the purpose of maintaining and increasing his position within Power Rules, a RICO enterprise. See 18 U.S.C. §§ 1959(a)(1) and (2). Guzman argues 261 that his rights under the Ex Post Facto Clause were violated because this Court sentenced him to a mandatory life sentence on that Count pursuant to a version of 18 U.S.C. § 1959 that became effective after the date of the murder. At the time of the murder, section 1959 provided, in pertinent part: a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished - (1) for murder or kidnaping, by imprisonment for any term of years or for life ... 18 U.S.C. § 1959(a) (1994) (emphasis added). The above statute was amended on September 13, 1994, and now makes the punishment for murder death or mandatory life imprisonment. Guzman argues that if the former version of section 1959 was used at his sentencing, this Court would have been compelled to determine whether the sentence should be for a term of years or for life, rather than automatically imposing a life sentence. At the sentencing, this Court applied the Guidelines analysis contained in the Presentence Report ("PSR"), stating: The guideline for violating the racketeering statute is found in Section 2E1.1. That section provides that the base offense level is the greater of either 19 or that which is applicable to the underlying racketeering activity. The murder guideline is found in Section 2A1.1(a) and results in a base offense level of 43. Thus the base offense level for each conviction for murder as a racketeering act is 43. Because Mr. Guzman was the organizer or leader of a criminal activity that involved five or more participants ... a four-level enhancement to 47, pursuant to Section 3B1.1(a), is warranted.... The base offense level, therefore, goes from 43 to 47. This calculation applies to Groups B, D, E and F, which cover the murders of Alvin Rivera, Alberto Garcia, also known as Cholo, Jose Ramon Balbi and Neil Cintron. May 11, 1999 Sentencing Transcript ("Sent.Tr.") at 5-6. The November 1, 1997 edition of the Guidelines Manual was applied in this sentencing. See PSR § 114. Prior to November 1, 1997, section 2A1.1 was last amended on November 1, 1993. Thus, the Guidelines in effect at both the time of the Cintron murder and at the time of sentencing called for a base offense level of 43 which has always mandated a sentence of life imprisonment. Furthermore, the governing statute, 18 U.S.C. § 1959, included life imprisonment as a sentencing option at all relevant timesbefore September 13, 1994, a life sentence or a term of years was permitted while after September 13, 1994, life imprisonment or death became mandatory. The Ex Post Facto Clause applies to "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed." Calder v. Bull, 3 Dall. 386, 389, 1 L.Ed. 648 (1798). Thus, while a sentencing court must generally use the Guidelines in effect at the time of sentencing, see 18 U.S.C. § 3553(a)(4), "when the Guidelines in effect at the time of sentencing provide for a higher range than those 262 in effect at the time the crime was committed, an ex post facto problem exists and the court must not impose a sentence in excess of that allowed by the older Guidelines." United States v. Nagi, 947 F.2d 211, 213 n. 1 (6th Cir.1991). Underlying the ex post facto prohibition is a concern for "the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Here, the rationale and purpose of the Ex Post Facto Clause are clearly not applicable to the Guzman sentence. Under both versions of section 1959, a sentence of life imprisonment was an available option. Guzman was therefore on notice both before and after the murder of Neil Cintron that he could receive a life sentence for that crime. See United States v. Lykes, 999 F.2d 1144, 1150 (7th Cir.1993) ("The Commission's decisions to alter the crimes which may give rise to sentencing as a career offender and to allow that change to serve as grounds for a reduction in the sentences imposed on defendants sentenced under an earlier version of the Guidelines do not change the fact that is central to the ex post facto issue in this casethe defendant was on notice that his conduct could result in the sentence he received."). Furthermore, the Guidelines did not increase the punishment for unlawful conduct relating to RICO organizations during the relevant period. Section 2A1.1 has consistently mandated a base offense level of 43 which has consistently dictated a sentence of life imprisonment according to the Sentencing Table. Because the punishment was no greater under the later version of section 1959 and because life imprisonment was an available option under both versions of the statute, there is no ex post facto problem in imposing life imprisonment for Count Four. See United States v. Holmes, 975 F.2d 275, 280 (6th Cir.1992) ("Because application of the guidelines in effect at the time of sentencing leads to no harsher a sentence than would result from the application of the guidelines at the time of the offense, the magistrate's use of the post-November 1998 version of section 2K2.3 was appropriate and created no ex post facto problem."). And because there is no ex post facto problem, neither his attorney at sentencing nor his appellate counsel were ineffective for having failed to raise this issue. See Aparicio, 269 F.3d at 99. C. The Apprendi Issues 1. Apprendi Does Not Apply Retroactively on Collateral Review Guzman was sentenced to life imprisonment on all three of the narcotics conspiracy charges. However, in accordance with established law at the time, the jury was not asked to and did not make any findings as to the quantities of drugs involved in these offenses. See Trial Transcript at 9137-38 ("[The] actual quantity of narcotics involved is not an element of this crime, so you need not be concerned with that."). Guzman did not object to this instruction at the charging conference, see id. at 8168-72, or after it was given, see id. at 9206-16. At sentencing, this Court adopted the conclusion of the Probation Office, see PSR ¶ 210, stating that "[t]he evidence reveals that Mr. Guzman [was] responsible for the distribution of no less than ten kilograms of heroin, one kilogram of cocaine, and 20 kilograms of crack." Sent. Tr. at 7. Guzman argues that the imposition of life sentences violated his due process rights in light of Apprendi where the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed 263 statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. This due process claim fails, however, as the Second Circuit has recently held that "Apprendi does not apply retroactively to initial section 2255 motions for habeas relief." Coleman v. United States, 329 F.3d 77, 78-79, 90 (2d Cir. 2003). 2. Appellate Counsel Was Ineffective for Not Raising the Apprendi Issue on Appeal On June 26, 2000, after Guzman's brief on appeal was filed, the Supreme Court decided Apprendi. Because Apprendi was decided while Guzman's direct appeal was pending, its holding would have applied retroactively in that appeal. See United States v. Joyner, 313 F.3d 40, 45 (2d Cir.2002) ("Because `a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final ...,' we are obligated to apply Apprendi to this case.") (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Guzman's appellate counsel could have moved to file a supplemental brief given this new case law. Instead, the issue was ignored and Guzman's appeal was denied approximately nine months later, on March 23, 2001. Under the plain error test of Federal Rule of Criminal Procedure 52(b), "before an appellate court can correct an error not raised at trial, there must be (1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.'" Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error `seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'" Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). The Government concedes that appellate counsel's failure to raise an Apprendi claim on appeal constitutes plain error. The next question is whether the error affected Guzman's substantial rights. "An error affects a defendant's `substantial rights' if it is `prejudicial' and it `affected the outcome of the district court proceedings.'" United States v. Thomas, 274 F.3d 655, (2d Cir.2001) (quoting United States v. Gore, 154 F.3d 34, 47 (2d Cir. 1998)). Here, the prejudice is clear. Instead of being sentenced to the twenty year maximum on each conspiracy pursuant to 21 U.S.C. § 841(b)(1)(C), Guzman was sentenced to life under section 841(b)(1)(A).[5] Such a disparity in sentencing is indisputably prejudicial. See Thomas, 274 F.3d at 669 ("It is beyond cavil that imprisonment for an additional 52 months beyond the penalty authorized by Congress, as a direct result of the error of using a drug quantity neither charged nor found by the jury, constitutes prejudice."). The error also clearly affected the outcome of district court proceedings as a jury would have been required to determine drug quantities in order to permit the Court to rely on the harsher sentencing provisions of section 841(b)(1)(A). The Government argues, however, that this plain error did not seriously affect the fairness, integrity or public reputation of 264 judicial proceedings "because there was overwhelming and essentially uncontroverted evidence at Guzman's trial that he conspired to distribute and possess with intent to distribute quantities of heroin, cocaine, and crack far in excess of the quantities that trigger a maximum sentence of life imprisonment." Government's Memorandum of Law in Opposition to Guzman's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 at 31-32 (citing United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) as a case where the fourth prong was not met given the "overwhelming" and "essentially uncontroverted" evidence of drug quantity). The Government then goes on to summarize the trial evidence regarding drug quantities. This effort is in vain. It is for the Court of Appeals, not the district court, to determine whether a plain error seriously affected the fairness of judicial proceedings such that it must be corrected on appeal. By failing to raise the Apprendi issue on Guzman's direct appeal, his counsel deprived the Court of Appeals of this opportunity which, in turn, deprived his client of meaningful appellate review. An error of this magnitude clearly satisfies the two-part test of Strickland. Accordingly, Guzman received ineffective assistance from his appellate counsel. The question then arises as to what the appropriate relief should be. Given the life sentences imposed on Counts One, Two and Four, which have now survived collateral attack, plus the 145 consecutive years, it would exalt form over substance to re-sentence Guzman to what could conceivably be three consecutive twenty-year sentences on the drug charges.[6]Cf. United States v. Gordon, 291 F.3d 181, 194 (2d Cir.2002), cert. denied, 537 U.S. 1114, 123 S.Ct. 866, 154 L.Ed.2d 788 (2003) ("Circuits have chosen not to exercise their discretion to correct plain sentencing errors raised by the government on appeal ... when the length of the sentence imposed and the correct sentence was not significant enough to create a miscarriage of justice.") (internal quotation marks and citation omitted). See also United States v. Brown, 316 F.3d 1151, 1161 (10th Cir.2003) (citing cases). III. CONCLUSION For the reasons stated above, the petition is denied in part and granted in part. However, because it would be futile to re-sentence petitioner on the drug conspiracy charges, the Court declines to do so. However, a certificate of appealability is granted as to the issue of the required relief, i.e., whether the district court must re-sentence a defendant who is otherwise serving three concurrent life sentences where it has been determined that the defendant received ineffective assistance of counsel with regard to life sentences imposed on three separate offenses. This Court will not issue a certificate of appealability as to the other issues addressed herein as defendant has not made a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c)(2). See also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000) (holding that substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason, (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement 265 to proceed further). The Clerk of the Court is directed to close this case. NOTES [1] Guzman was charged in forty-six counts. [2] Counts Thirty-Two, Thirty-Three, Thirty-Five, Thirty-Seven, Thirty-Nine, Forty-Two, Forty-Five and Forty-Six. [3] "A person is guilty of murder in the second degree when: With intent to cause the death of another person, he causes the death of such person or of a third person; . . ." New York Penal Law § 125.25(1)(a). New York State law reserves first degree murder for intentional killing under special circumstances, e.g., where the victim is a police officer, a peace officer, or a corrections officer. See New York Penal Law § 125.27. [4] Nor was appellate counsel ineffective for not having discovered and raised this meritless issue on appeal. [5] For cases involving one or more kilograms of heroin, five or more kilograms of cocaine, or fifty or more grams of crack cocaine, the penalty is a term of imprisonment which may not be less than ten years or more than life imprisonment. See 21 U.S.C. § 841(b)(1)(A). [6] Of course, if a higher court overturns the life sentences on the murder convictions, a resentencing would be required in any event. At that time, the Court would also re-sentence Guzman on the drug conspiracy convictions.	{ "pile_set_name": "FreeLaw" }
20 So.3d 856 (2009) WEEKS v. STATE. No. 2D08-2292. District Court of Appeal of Florida, Second District. October 30, 2009. Decision Without Published Opinion Affirmed.	{ "pile_set_name": "FreeLaw" }

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